71836 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

1For editorial reasons, upon codification in the 

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

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket Number EERE–2011–BT–STD– 

0047] 

RIN 1904–AC56 

Energy Conservation Program: Energy 

Conservation Standards for Direct 

Heating Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The Energy Policy and 

Conservation Act of 1975 (EPCA), as 

amended, prescribes energy 

conservation standards for various 

consumer products and certain 

commercial and industrial equipment, 

including residential direct heating 

equipment. In this final rule, the U.S. 

Department of Energy (DOE) is 

amending its definitions pertaining to 

direct heating equipment. Specifically, 

through this final rule, DOE is amending 

the definition of ‘‘vented hearth heater,’’ 

a type of direct heating equipment, to 

clarify the scope of the current 

exclusion for those vented hearth 

heaters that are primarily decorative 

hearth products. The amendment to the 

existing exclusion shifts the focus from 

a maximum input capacity limitation 

(i.e., 9,000 Btu/h) to a number of other 

factors, including the absence of a 

standing pilot light or other 

continuously-burning ignition source. 

DOE has concluded that these 

amendments would result in increased 

energy savings overall, as well as for the 

types of units under the exclusion. 

DATES: The effective date of this rule is 

December 19, 2011. Compliance with 

the amended standards established for 

direct heating equipment in today’s 

final rule is required on April 16, 2013, 

except for the exclusion criterion related 

to the elimination of a standing pilot 

light or other continuously-burning 

ignition source, which has a compliance 

date of January 1, 2015. The 

incorporation by reference of certain 

publications in the rule is approved by 

the Director of the Federal Register as of 

December 19, 2011. 

ADDRESSES: The docket for this 

rulemaking is available for review at 

http://www.regulations.gov, including 

Federal Register notices, public meeting 

attendee lists and transcripts, 

comments, and other supporting 

documents/materials. All documents in 

the docket are listed in the http:// 

www.regulations.gov index. However, 

not all documents listed in the index 

may be publicly available, such as 

information that is exempt from public 

disclosure. 

A link to the docket Web page can be 

found at: http://www.regulations.gov. 

The http://www.regulations.gov Web 

page contains simple instructions on 

how to access all documents, including 

public comments, in the docket. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Mohammed Khan, U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–7892. Email: 

Mohammed.Khan@ee.doe.gov. 

Mr. Eric Stas, U.S. Department of 

Energy, Office of the General Counsel, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–9507. Email: 

Eric.Stas@hq.doe.gov. 

For further information on how to 

review the docket, contact Ms. Brenda 

Edwards, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–2945. Email: 

Brenda.Edwards@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule incorporates by reference into part 

430, the following industry standards: 

(1) ANSI Z21.50–2007 (CSA 2.22– 

2007), (‘‘ANSI Z21.50’’), ‘‘Vented Gas 

Fireplaces,’’ Approved February 22, 

2007. 

(2) ANSI Z21.88–2009 (CSA 2.33– 

2009), (‘‘ANSI Z21.88’’), Vented Gas 

Fireplace Heaters,’’ Approved March 26, 

2009. 

Copies of these standards are 

available from the American National 

Standards Institute, 11 West 42nd 

Street, New York, New York 10036, 

(212) 642–4936, or at http:// 

webstore.ansi.org/. You can also view 

copies of these standards at the U.S. 

Department of Energy, Resource Room 

of the Building Technologies Program, 

950 L’Enfant Plaza SW., 6th Floor, 

Washington, DC 20024, (202) 586–2945, 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

Table of Contents 

I. Summary of the Final Rule and Its Benefits 

II. History of the Energy Conservation 

Standards Rulemaking and Current 

Standards 

III. Discussion 

A. Scope of Coverage of Vented Hearth 

Products 

1. Description of Vented Hearth Products 

2. Definitions for ‘‘Direct Heating 

Equipment’’ 

B. Amended Definition for ‘‘Vented Hearth 

Heater’’ 

1. Description of Criteria for Classification 

as Decorative Vented Hearth Products 

a. Vented Gas Log Sets 

b. Vented Hearth Products 

C. National Energy Savings 

D. Other Comments 

1. Test Procedures 

2. DOE Analysis and Public Meeting 

Conduct 

3. Impacts of Proposed Definition 

a. Consumer Choice 

b. Energy Savings 

c. Environmental Impacts 

d. Impacts on Manufacturers 

4. Procedural Requirements 

5. Product Characteristics 

6. Requests To Delay or Discontinue 

Rulemaking 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Orders 12866 

and 13563 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act of 1995 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Review Under the Information Quality 

Bulletin for Peer Review 

M. Congressional Notification 

V. Approval of the Office of the Secretary 

I. Summary of the Final Rule and Its 

Benefits 

Title III, Part B1 of the Energy Policy 

and Conservation Act of 1975 (EPCA or 

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

6291–6309, as codified), established the 

Energy Conservation Program for 

Consumer Products Other Than 

Automobiles, which includes the types 

of direct heating equipment that are the 

subject of this rulemaking. (42 U.S.C. 

6292(a)(9)) Pursuant to EPCA, any new 

or amended energy conservation 

standard that DOE prescribes for certain 

products, such as direct heating 

equipment, shall be designed to achieve 

the maximum improvement in energy 

efficiency that DOE determines is 

technologically feasible and 

economically justified. (42 U.S.C. 

6295(o)(2)(A)) Furthermore, the new or 

amended standard must result in 

significant conservation of energy. (42 

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

DOE published a final rule (hereafter 


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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71837 

2This document is available on DOE’s Web site 

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

appliance_standards/residential/pdfs/htgp_

finalrule_faq.pdf. 

referred to as the April 2010 final rule) 

in accordance with these and other 

statutory provisions discussed in that 

final rule, which, in relevant part, 

promulgated definitions and energy 

conservation standards for vented gas 

hearth direct heating equipment. 75 FR 

20112. 

In establishing the definitions 

pertaining to direct heating equipment 

in the April 2010 final rule, DOE 

recognized the aesthetic appeal of 

certain gas hearth products and 

included a provision in its definition of 

‘‘vented hearth heater’’ that considered 

certain gas hearth products to be 

primarily decorative in nature, and 

excluded them from having to comply 

with DOE’s minimum energy 

conservation standard otherwise 

applicable to vented gas hearth direct 

heating equipment. The April 2010 final 

rule did not address vented gas log sets. 

DOE clarified its position on vented gas 

log sets in a document published on 

DOE’s Web site titled ‘‘Frequently Asked 

Questions: ‘Vented Hearth Heater’ 

Definition.’’ 2 However, based upon 

manufacturer concerns expressed 

subsequent to the publication of the 

April 2010 final rule, DOE commenced 

the current rulemaking to consider 

changes to the scope of the exclusion in 

order to achieve greater energy savings, 

promote consumer product choice, and 

ease manufacturer burdens. 

Accordingly, in this final rule, DOE 

further amends its definitions pertaining 

to direct heating equipment. 

Specifically, DOE is amending its 

definition of ‘‘vented hearth heater’’ to 

modify the conditions contained in the 

existing definition for the subset of such 

products to be considered primarily 

decorative in nature and, therefore, not 

subject to the DOE’s minimum energy 

conservation standards for vented 

hearth heaters. As an initial matter, DOE 

is providing clarification that vented gas 

log sets are included in the definition of 

‘‘vented hearth heater’’; DOE has 

reached this conclusion because of the 

similarities between vented gas log sets 

and other types of gas hearth products. 

Vented gas log sets and other vented 

hearth products provide heat for 

consumers, and they have certain 

similar characteristics, such as the 

presence of a flame and ceramic logs. 

These products may also have an 

aesthetic appeal. However, due to 

ambiguity in the gathered data for 

vented gas log sets indentified by 

stakeholders at the public meeting for 

this rulemaking and in subsequent 

written comments, DOE has decided not 

to subject vented gas log sets to the 

energy conservation standards for 

vented hearth heaters at this time. 

Commenters also suggested that further 

consideration would need to be given to 

the applicability of the test procedure 

for vented home heating equipment and 

the potential for test procedure 

provisions tailored to vented gas log 

sets. Consequently, DOE has determined 

that additional analysis would be 

necessary to address vented gas log sets, 

a topic which DOE may address in a 

new proceeding in the context of a 

future rulemaking. 

Turning to the matter of vented hearth 

products, the definition of ‘‘vented 

hearth heater’’ in the April 2010 final 

rule stated that ‘‘[t]hose heaters with a 

maximum input capacity less than or 

equal to 9,000 British thermal units per 

hour (Btu/h), as measured using DOE’s 

test procedure for vented home heating 

equipment (10 CFR part 430, subpart B, 

appendix O), are considered purely 

decorative and are excluded from DOE’s 

regulations.’’ 75 FR 20112, 20234 (April 

16, 2010). In this final rule, DOE is 

amending the definition for ‘‘vented 

hearth heater’’ to explicitly provide that 

vented gas log sets are not being made 

subject to standards at this time, and to 

base the exclusion for primarily 

decorative vented hearth products on 

several criteria, including the American 

National Standards Institute (ANSI) 

standard to which the product is 

certified. The amended definition at 10 

CFR 430.2 being adopted by today’s 

final rule is set forth in the regulatory 

text. More specifically, the amended 

definition states that the standards for 

vented hearth heaters are not applicable 

to vented gas log sets at this time. It also 

provides that vented hearth products are 

excluded from the vented hearth heat 

standards if they are: (1) Certified to 

ANSI Standard Z21.50, but not to ANSI 

Standard Z21.88; (2) sold without a 

thermostat and with a warranty 

provision expressly voiding all 

manufacturer warranties in the event 

the product is used with a thermostat; 

(3) expressly and conspicuously 

identified on its rating plate and in all 

manufacturer’s advertising and product 

literature as a ‘‘Decorative Product: Not 

For Use As A Heating Appliance’’; and 

(4) with respect to products sold after 

January 1, 2015, not equipped with a 

standing pilot light or other 

continuously-burning ignition source. 

DOE believes the amended definition 

of ‘‘vented hearth heater’’ will provide 

benefits to both consumers and the gas 

hearth products industry in terms of 

energy savings and product choice, by 

allowing manufacturers to continue to 

offer primarily decorative hearth 

products across a broad range of input 

ratings, rather than limiting primarily 

decorative hearth products to input 

ratings below the current limitation of 

9,000 Btu/h. By eliminating the use of 

standing pilot lights in all primarily 

decorative vented gas hearth products 

under the exclusion beginning on 

January 1, 2015, DOE believes the 

amended definition will result in a 

significant increase in overall energy 

savings, including for those types of 

units eligible for the primarily 

decorative products exclusion. At the 

same time, this rule will lessen the 

impacts and burden on manufacturers of 

vented hearth heaters, while promoting 

a variety of available models for 

consumers. For vented gas log sets, the 

amended definition classifies this 

product as a type of vented hearth 

heater because of the similarities to 

other vented hearth products (primarily 

because they provide some amount of 

heat to the living space). However, the 

amended definition does not require 

manufacturers of vented gas log sets to 

meet a minimum energy conservation 

standard at this time or to meet any 

criteria to qualify for exclusion from the 

standards for gas hearth direct heating 

equipment (i.e., vented hearth heaters). 

DOE estimates that the elimination of 

standing pilot lights in primarily 

decorative vented hearth heater 

products would result in an additional 

0.04 quads of additional energy savings 

over the 30-year period from 2015 

through 2044, beyond those savings 

already achieved by the April 2010 final 

rule. (See section III.C for details on 

DOE’s energy savings estimates.) 

Manufacturers of vented hearth 

products who choose not to avail 

themselves of the exclusion will be 

subject to the energy conservation 

standards for vented hearth heaters 

promulgated in the April 2010 final 

rule. (As noted above, these 

amendments clarify that manufacturers 

of vented gas log sets will not be subject 

to the energy conservation standards for 

vented hearth heaters promulgated in 

the April 2010 final rule.) 

Therefore, DOE has concluded that 

the amended definition of ‘‘vented 

hearth heater’’ will improve the existing 

definitions pertaining to direct heating 

equipment and will further clarify the 

scope of the current exclusion from the 

energy conservation standards for those 

vented hearth heaters that are primarily 

decorative hearth products. In addition, 

the rule will result in significant 

additional energy savings, preserve 

consumer choice, and reduce the 


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71838 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

burden on industry. For these reasons, 

DOE has concluded that the 

amendments to DOE’s definition of 

‘‘vented hearth heater’’ provide 

substantial benefits that outweigh the 

burden of the new requirements for 

products to be considered primarily 

decorative hearth products, and 

accordingly, DOE adopts them in this 

rule. DOE’s rationale is presented in 

further detail immediately below. 

II. History of the Energy Conservation 

Standards Rulemaking and Current 

Standards 

Prior to being amended in 1987, EPCA 

included home heating equipment as 

covered products. The amendments to 

EPCA effected by the National 

Appliance Energy Conservation Act of 

1987 (NAECA; Pub. L. 100–12) included 

replacing the term ‘‘home heating 

equipment’’ with ‘‘direct heating 

equipment,’’ establishing standards for 

the direct heating equipment, and 

requiring that DOE determine whether 

these standards should be amended. (42 

U.S.C. 6295(e)(3)–(4)) Nowhere in the 

statute is the term ‘‘direct heating 

equipment’’ defined. DOE amended the 

statutorily-prescribed standards for 

direct heating equipment for the first 

time in the April 2010 final rule by 

prescribing the current energy 

conservation standards for direct 

heating equipment manufactured on or 

after April 16, 2013. 75 FR 20112 (April 

16, 2010). Of particular relevance here, 

the April 2010 final rule created a 

definition for ‘‘vented hearth heater,’’ 

established product classes for gas 

hearth direct heating equipment (i.e., 

vented hearth heaters), and amended 

the minimum standards for direct 

heating equipment, including gas hearth 

direct heating equipment. The April 

2010 final rule defined ‘‘vented hearth 

heater’’ as currently set out in 10 CFR 

430.2. The definition adopted in the 

April 2010 final rule provided a 

description of the characteristics of 

vented hearth heaters, and also 

provided that vented hearth products 

with a maximum input capacity less 

than or equal to 9,000 British thermal 

units per hour would be excluded from 

DOE’s regulations due to their primarily 

decorative nature. 

In addition, the April 2010 final rule 

amended the definition of ‘‘vented 

home heating equipment or vented 

heater’’ to include vented hearth 

heaters, along with the other types of 

heaters (i.e., vented wall furnace, vented 

floor furnace, and vented room heater) 

that were already defined as vented 

home heating equipment. Id. 

The amended standards established in 

the April 2010 final rule for gas hearth 

direct heating equipment are set forth in 

Table II.1. 

TABLE II.1—FEDERAL ENERGY EFFICIENCY STANDARDS FOR GAS HEARTH DIRECT HEATING EQUIPMENT

Product class 

Standard level 

(compliance date: 

4/16/2013) 

Gas hearth up to 20,000 Btu/h ................................................................................................................................................ AFUE* = 61%. 

Gas hearth over 20,000 Btu/h and up to 27,000 Btu/h ........................................................................................................... AFUE = 66%. 

Gas hearth over 27,000 Btu/h and up to 46,000 Btu/h ........................................................................................................... AFUE = 67%. 

Gas hearth over 46,000 Btu/h ................................................................................................................................................. AFUE = 68%. 

* Annual Fuel Utilization Efficiency. 

Following DOE’s adoption of the 

April 2010 final rule, the Hearth, Patio 

& Barbecue Association (HPBA) sued 

DOE in the United States Court of 

Appeals for the District of Columbia 

Circuit to invalidate the rule as it 

pertained to vented gas hearth products. 

Statement of Issues to Be Raised, 

Hearth, Patio, & Barbecue Association v. 

Department of Energy, et al., No. 10– 

1113 (DC Cir. filed June 1, 2010). 

Litigation is pending; however, this 

final rule may make it unnecessary for 

the Court to resolve some of the issues 

surrounding the April 2010 final rule. 

DOE commenced this latest round of 

rulemaking for residential direct heating 

equipment on July 22, 2011 by 

publishing in the Federal Register a 

notice of public rulemaking (NOPR) and 

announcement of a public meeting to 

discuss the document. The NOPR 

proposed to amend the definition of 

‘‘vented hearth heater’’ to clarify that 

vented gas log sets are covered products, 

and to specify a set of criteria for vented 

hearth products and vented gas log sets 

that would allow them to be considered 

primarily decorative units and thereby 

excluded from having to comply with 

the standards for gas hearth direct 

heating equipment adopted in the April 

2010 final rule. DOE held a public 

meeting on September 1, 2011, in which 

it: (1) Presented the contents of the 

NOPR; (2) sought comments from 

interested parties on these subjects; and 

(3) in general, sought to inform 

interested parties about, and facilitate 

their involvement in, the rulemaking. 

Major issues discussed at the public 

meeting included: (1) The proposed 

exclusion requirements for gas log sets; 

(2) the physical and performance 

differences between gas log sets and 

other vented hearth heaters; (3) the 

compliance date for the energy 

conservation standards set forth in the 

April 2010 final rule; (4) the proposed 

compliance date for eliminating 

standing pilot lights under the proposed 

exclusion; (5) DOE’s authority to cover 

primarily decorative hearth products; 

and (6) DOE’s national energy savings 

(NES) analysis. At the meeting and 

during the comment period on the 

NOPR, DOE received many comments 

that helped it identify and resolve issues 

pertaining to the direct heating 

equipment relevant to this rulemaking. 

The comments received and DOE’s 

responses are discussed in the section 

immediately below. 

III. Discussion 

A. Scope of Coverage of Vented Hearth 

Products 

1. Description of Vented Hearth 

Products 

Vented hearth products include gasfired products such as fireplaces, 

fireplace inserts, stoves, and log sets 

that typically include aesthetic features 

(e.g., yellow flame, large flame) and that 

provide space heating. Vented hearth 

products such as fireplaces, fireplace 

inserts, and stoves typically consist of 

ceramic logs and a gas burner that is 

surrounded by an enclosure, whereas 

vented gas log sets consist only of 

ceramic logs and a gas burner intended 

for installation in an existing masonry 

fireplace. Vented hearth products 

generally have a dual heating and 

aesthetic function, as consumers derive 

benefit from both the heat provided and 

the aesthetic appeal of a product that 

simulates a wood-burning appliance. 

Characteristic of this duality of purpose, 

units intended for use as a heating 

appliance and those units intended 


jlentini on DSK4TPTVN1PROD with RULES4
Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71839 

3This document is available on DOE’s Web site 

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

appliance_standards/residential/pdfs/ 

htgp_finalrule_faq.pdf. 

primarily to be used as a decorative 

product often share very similar 

external appearances, unit construction, 

and input capacities, thereby making it 

difficult to differentiate between the two 

types of hearth products. DOE notes that 

the primary difference between the two 

types of vented hearth heaters is that 

primarily decorative units focus on 

ambiance and aesthetic utility 

associated with a solid fuel (e.g., woodburning) fireplace in addition to heat 

output to the living space, whereas 

heating hearth products tend to focus on 

providing heat to the living space, but 

also provide some amount of ambiance 

not provided by a utilitarian heating 

device. Products intended for use as a 

heater are often shipped with or 

designed to be easily retrofitted with 

additional accessories that primarily 

decorative products do not have, such 

as thermostats to control the heat 

output. However, DOE research has 

shown that such accessories are 

typically optional and, thus, not 

definitive in distinguishing between 

heaters and primarily decorative units. 

In the July 2011 NOPR, DOE concluded 

that all vented hearth products 

constitute direct heating equipment 

where a gas-consuming device that 

generates a flame and gives off heat is 

inserted into the residential living 

space. 76 FR 43941, 43944–45 (July 22, 

2011). Many interested parties have 

noted that decorative products are 

intended primarily for aesthetic use (as 

discussed in section III). However, DOE 

believes that regardless of whether the 

product is intended to provide only 

aesthetic appeal, by design, the product 

will generate heat due to the presence 

of the flame, and some of that heat will 

be transferred to the space. Indeed (as 

discussed further in section III), many 

interested parties have conceded that 

vented hearth products intended 

primarily for decorative use and vented 

gas log sets are an effective 

supplemental or emergency heat source, 

providing further justification for their 

inclusion as a type of covered direct 

heating equipment. 

In response to DOE’s interpretation of 

its authority under EPCA regarding 

direct heating equipment, several 

interested parties stated that decorative 

hearth products and vented gas log sets 

are outside the scope of DOE’s authority 

under EPCA. DOE’s interpretation of its 

authority under EPCA, as well as the 

comments on DOE’s authority as it 

pertains to EPCA’s and DOE’s 

definitions related to direct heating 

equipment, are discussed in the sections 

that immediately follow. 

2. Definitions for ‘‘Direct Heating 

Equipment’’ 

As discussed in section II, before the 

enactment of NAECA, EPCA included 

‘‘home heating equipment’’ in DOE’s 

appliance standards program. EPCA did 

not define ‘‘home heating equipment,’’ 

however. NAECA’s amendments to 

EPCA replaced the term ‘‘home heating 

equipment’’ with ‘‘direct heating 

equipment,’’ and specified energy 

conservation standards for ‘‘direct 

heating equipment,’’ but once again, the 

statute did not define the term ‘‘direct 

heating equipment.’’ In the absence of 

an unambiguous statutory term, DOE 

has discretion to establish a reasonable 

regulatory definition. With that said, 

Congress’s use of such broad 

terminology signals that the definition is 

open to accommodate future 

technological changes in the 

marketplace in keeping with DOE’s 

energy-saving mandate under EPCA. 

Prior to the April 2010 final rule, DOE 

had previously defined ‘‘home heating 

equipment’’ and related terms in its 

regulations, which can be found at 10 

CFR 430.2. In the April 2010 final rule, 

DOE added a new definition of ‘‘direct 

heating equipment,’’ defining the term 

in the same manner that it had 

previously defined ‘‘home heating 

equipment.’’ 75 FR 20112, 20128, 20234 

(April 16, 2010). DOE defines both 

‘‘home heating equipment’’ and ‘‘direct 

heating equipment’’ as meaning ‘‘vented 

home heating equipment and unvented 

home heating equipment.’’ In its 

definitions at 10 CFR 430.2, DOE goes 

on to define both ‘‘vented home heating 

equipment’’ and ‘‘unvented home 

heating equipment.’’ Prior to being 

amended in the April 2010 final rule, 

the definition of ‘‘vented home heating 

equipment,’’ relevant here, read as set 

out in 10 CFR, parts 200–499, revised as 

of January 1, 2010, and did not 

explicitly include vented hearth heaters. 

In the April 2010 final rule, DOE 

concluded that vented hearth products 

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

fireplaces, fireplace inserts, and stoves) 

meet its definition of ‘‘vented home 

heating equipment,’’ because their 

designs furnish heat to the living space 

of a residence. DOE also concluded, 

therefore, that they are covered products 

under EPCA and are properly classified 

as direct heating equipment. 75 FR 

20112, 20128 (April 16, 2011). 

Accordingly, DOE adopted a new 

definition of ‘‘vented hearth heater’’ and 

amended its definition of ‘‘vented home 

heating equipment or vented heater’’ at 

10 CFR 430.2 to explicitly include 

vented hearth heaters, reading as 

currently set out in 10 CFR 430.2. 

In the April 2010 final rule, DOE did 

not specifically address vented gas log 

sets under the broader classification of 

direct heating equipment. However, 

given their primarily decorative nature, 

DOE published a document on DOE’s 

Web site titled ‘‘Frequently Asked 

Questions: ‘Vented Hearth Heater’ 

Definition.’’ 3 In that document, DOE 

stated that because gas log sets are not 

constructed as part of an entire 

enclosure (i.e., there is no surrounding 

box or viewing pane) or a sealed system, 

they do not provide the same heating 

function as gas fireplaces, gas fireplace 

inserts, and gas stoves, which are 

constructed as enclosed systems. Due to 

these differences, DOE stated that 

vented gas log sets are intended to be 

installed for primarily decorative 

purposes, and as a result, are not subject 

to the standards for vented hearth 

heaters. Upon reconsidering the 

definitions of ‘‘direct heating 

equipment,’’ ‘‘vented home heating 

equipment,’’ and ‘‘vented hearth 

heater,’’ DOE determined in the July 

2011 NOPR that vented gas log sets are 

heating appliances and proposed to 

explicitly include them under DOE’s 

definitions. 76 FR 43941, 43945 (July 

22, 2011). DOE noted in the July 2011 

NOPR that this approach is consistent 

with DOE’s treatment of vented hearth 

products that provide both heat and 

aesthetic appeal. Id. 

Further, in the July 2011 NOPR, DOE 

noted that the terminology ‘‘designed to 

furnish warmed air’’ in the definition of 

‘‘vented home heating equipment’’ is 

not limited to furnishing warmed air 

through mechanical means by expelling 

or discharging such air, but can also 

refer to furnishing heat which warms 

the living space air through any method 

of heat transfer. Because of the very 

nature of hearth products (i.e., the 

presence of a flame), all hearth products 

create heat, and hearth products provide 

some amount of that heat to the 

surrounding living space, including 

radiant heat. As a result, DOE 

concluded that all vented hearth 

products and vented gas log sets are 

designed to furnish heat, regardless of 

whether they have a mechanical means 

for furnishing the air (such as a blower) 

or grills through which the warm air can 

be circulated via natural convection. 

Because vented gas log sets and 

primarily decorative vented hearth 

products will provide some amount of 

heat to the living space, DOE concluded 

in the July 2011 NOPR that all primarily 


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71840 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

decorative vented hearth products and 

vented gas log sets are designed to 

furnish heat and, thus, are a subset of 

vented hearth heaters. 76 FR 42941, 

43944–45 (July 22, 2011). 

DOE received several comments 

related to its authority to cover hearth 

products as direct heating equipment 

under EPCA. Lennox stated that it did 

not believe DOE has established its 

statutory authority to regulate 

decorative gas fireplaces, and requested 

that DOE substantiate its authority. 

(Lennox, No. 6 at p. 1) The National 

Propane Gas Association (NPGA) stated 

that decorative hearth products existed 

at the time both EPCA and NAECA were 

enacted, and these products were not 

intended to be covered. Further, NPGA 

stated that EPCA specifically identifies 

which products are within the scope of 

the term ‘‘direct heating equipment’’ 

and that neither decorative hearth 

products nor decorative gas log sets are 

within the scope, and the commenter 

asserted EPCA only provided DOE with 

the authority to amend the current 

standards and not to impose standards 

on decorative gas log sets. (NPGA, No. 

209 at pp. 1–3) The American Public 

Gas Association (APGA) concurred with 

NPGA’s statements. (APGA, No. 223 at 

p. 1) Similarly, HPBA stated that DOE 

cannot lawfully categorize decorative 

hearth products as direct heating 

equipment because at the time these 

categorizations were made, fireplaces 

and gas log sets existed but were 

recognized as entirely different 

categories of products. HPBA 

commented that when interpreting a 

statute, DOE must give effect to the 

unambiguously expressed intent of 

Congress, and that the suggestion that 

the definition of ‘‘direct heating 

equipment’’ should be open to 

accommodate future technological 

changes in the marketplace does not 

apply here, since both decorative vented 

gas fireplaces and gas log sets existed at 

the time Congress addressed direct 

heating equipment in the statute. 

(HPBA, No. 201 at pp. 12–14) The 

American Gas Association (AGA) also 

stated that they did not believe that 

decorative hearth products and gas log 

sets were included in the original intent 

of Congress when establishing authority 

for direct heating equipment products 

designed to furnish warm air. (AGA, 

Public Meeting Transcript, No. 14 at pp. 

85–86) AGA elaborated that decorative 

products were not included in the 

negotiations and discussions for 

amending the standards for direct 

heating equipment at the time leading 

up to the enactment of NAECA. (AGA, 

Public Meeting Transcript, No. 14 at pp. 

94–95) The Air-conditioning, Heating, 

and Refrigeration Institute (AHRI) stated 

that even though there was not a formal 

definition created for ‘‘direct heating 

equipment’’ in NAECA, decorative 

hearth products and gas log sets were 

purposefully not identified as being a 

part of the direct heating equipment 

standards, even though the products 

existed at the time. (AHRI, Public 

Meeting Transcript, No. 14 at pp. 91–92) 

In contrast, the Natural Resources 

Defense Council (NRDC) and 

EarthJustice stated that EPCA does not 

define the term ‘‘direct heating 

equipment,’’ although it directs DOE to 

regulate the efficiency of such 

equipment, and that EPCA’s silence on 

the precise meaning of the term leaves 

it to DOE’s discretion to interpret the 

scope of products that constitute direct 

heating equipment. Further, NRDC and 

EarthJustice commented that there is no 

basis in the language of EPCA for 

asserting that Congress intended to 

restrict DOE’s authority when applying 

standards to vented hearth heaters. 

(NRDC and EarthJustice, No. 216 at p. 1) 

DOE cannot attempt to interpret the 

intent of Congress based on 

unsubstantiated assertions of what 

individual parties may have believed. 

Rather, DOE must interpret its authority 

with respect to direct heating equipment 

under EPCA based on what is written in 

the statute. As discussed above, EPCA 

does not define the term ‘‘direct heating 

equipment.’’ Thus, the statute is 

ambiguous regarding what Congress 

may have intended to include as direct 

heating equipment. DOE had previously 

defined ‘‘direct heating equipment’’ as a 

class of home heating equipment that is 

designed to furnish warmed air to the 

living space of a residence. Given the 

lack of a statutory definition for ‘‘direct 

heating equipment’’ in EPCA, DOE 

provided its interpretation in the April 

2010 final rule and established its 

authority to cover hearth products as 

direct heating equipment (i.e., as a class 

of home heating equipment that is 

designed to furnish warmed air to the 

living space of a residence). 75 FR 

20112, 20128–30 (April 16, 2010). To 

restate its earlier conclusion, because 

virtually all hearth products (including 

those identified as ‘‘decorative’’ by 

industry) supply some amount of heat to 

the living space, DOE believes it is 

eminently reasonable to conclude that 

these products are direct heating 

equipment under EPCA. As a result, 

DOE maintains its position that these 

are covered products. 

DOE also received several comments 

from interested parties in response to 

the July 2011 NOPR regarding the 

definitions of ‘‘direct heating 

equipment’’ as they apply to primarily 

decorative hearth products and vented 

gas log sets based on the characteristics 

and use of those products. 

HPBA stated that DOE’s proposed 

interpretation that decorative vented 

hearth products are direct heating 

equipment is unreasonable, because 

they are not heating products and their 

appeal is aesthetic. Furthermore, HPBA 

contended that the NOPR’s statement 

that it is ‘‘difficult to differentiate 

between’’ the two is misleading. HPBA 

pointed to the fact that heating hearth 

products are designed and sold as 

aesthetically-appealing products that 

can also serve as efficient utilitarian 

heating appliances. HPBA elaborated 

that these products are designed for 

heating efficiency, are heater-rated, and 

are sold on the basis of heating 

efficiency as well as aesthetic appeal. 

The commenter stated decorative hearth 

products, on the other hand, are 

designed and sold for aesthetic appeal 

and not for heating efficiency. HPBA 

stated that many such products— 

including both gas log sets and 

decorative vented gas fireplaces—are 

not a significant source of heat and 

would not be effective for utilitarian 

heating use. Additionally, HPBA 

asserted DOE’s statement that products 

are to be classified as direct heating 

equipment if they ‘‘provide some 

amount of heat to the living space’’ is 

confusing, since many products (such as 

kitchen ovens, refrigerators, and desktop 

computers) provide heat but are not 

considered direct heating equipment, 

and that classifying gas logs as such is 

particularly unreasonable since it 

conflicts with DOE’s prior 

interpretation. (HPBA, No. 201 at pp. 

17–18) R.H. Peterson stated that their 

gas log sets are designed to provide a 

realistic simulation of a wood burning 

fire in a wood burning fireplace, not to 

provide heat. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at p. 39) 

Similarly, a number of other interested 

parties commented that decorative 

hearth products should not be 

considered heating products because 

they are designed for ambiance and/or 

their primary purpose is not to provide 

heat. (Small Business Administration 

(SBA), No. 96 at p. 2; Big Woods, No. 

3 at p. 1; Lennox Hearth Products, No. 

6 at p. 1; Homefires, No. 10 at p. 1; 

Advantage, No. 13 at p. 1; Empire, 

Public Meeting Transcript, No. 14 at p. 

60 and No. 221 at p. 2; Crick-IT, No. 15 

at p. 1; Sun Dance Leisure, No. 17 at pp. 

1–2; Mazzeos, No. 16 at p. 1; Dealers LP 

Equipment, No. 20 at p. 1; Creekside 

Hearth and Patio, No. 21 at p. 1; Barbara 

Jenkins, No. 22 at p. 1; Fairview, No. 25 


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4 DOE received a large number of comments from 

AmeriGas and Ferrellgas employees, which DOE 

refers to collectively as the ‘‘Form Letter 

Comments.’’ Although each comment was slightly 

different, these comments generally expressed the 

same ideas. Therefore, DOE cites them all together, 

when the same thought is contained in more than 

one comment. If a commenter from AmeriGas or 

Ferrellgas made a point that was unique to their 

comment, DOE cited that comment individually. 

at p. 1; HWAM, No. 43 at p. 1; American 

Gas Log, No. 49 at p. 1; LF Pugh and 

Associates, No. 76 at p. 1; Siouxland No. 

85 at p. 1; Thompson Gas, No. 95 at p. 

1; Percy Guidry Hearth and Patio, No. 

18 at p. 1; Perfection, No. 115 at p. 2; 

Penn Valley, No. 116 at p. 2; Sheldon 

Skolnick Associates, No. 118 at p. 1; 

Hearth & Home, Inc., No. 144 at p. 2, 

Gas-fired Products, No. 155 at p. 1; 

Oahu Gas Service, No. 166 at p. 1; 

Short’s Stoves, No. 174 at p. 1; 

Thompson Gas, No. 191 at p. 1; 

Plumbing-Heating-Cooling Contractors 

Association (PHCC), No. 199 at p. 1; 

Hearth & Home Technologies, No. 204 at 

p. 3; Hearth and Home Shoppe, No. 207 

at p. 1; Rasmussen, No. 208 at p. 1; 

Golden Blount, No. 210 at p. 1; 

Independence Marketing, No. 214 at p. 

1; Hearth and Home Technologies, No. 

204 at p. 3; Mike Rogers, No. 225 at p. 

1; Fred Pierce, No. 219 at p. 1; Form 

Letter Comments; 4 Jack’s Butane 

Service, No. 23 at p. 1; NPGA, Public 

Meeting Transcript, No. 14 at pp. 30–31) 

AGA stated that the current statutory 

provisions for direct heating equipment 

do not cover hearth products as vented 

hearth heaters, because the primary 

purpose of hearth products is ambiance. 

(AGA, No. 217 at p. 1) Firelight 

Services, Top Hat Chimney Sweeps, and 

East Texas Brick Company stated that 

vented gas log sets are not sold or 

advertised as heaters and should not be 

treated as such. (East Texas Brick Co., 

No. 135 at p. 1; Top Hat, No. 168 at p. 

1; Firelight, No. 206 at p. 1; Arizona 

Gas, No. 98 at p. 3) 

Empire stated that it is not reasonable 

for DOE to assume that because a 

product uses energy and has heat as a 

byproduct, that it can be regulated the 

same as another product which is 

designed, certified, and currently 

regulated as a direct heating product. 

(Empire, Public Meeting Transcript, No. 

14 at p. 60) Similarly, HPBA stated that 

decorative hearth products cannot be 

classified as direct heating equipment 

simply because such units provide some 

amount of heat to the living space, 

because many other products such as 

kitchen stoves, refrigerators, and 

incandescent light bulbs also provide 

some amount of heat to the living space, 

and clearly, they are not direct heating 

equipment. (HPBA, Public Meeting 

Transcript, No. 14 at p. 19) Heritage 

Propane commented that decorative 

hearth products produce heat indirectly 

like blenders or refrigerators that 

produce incidental heat by their 

operation. (Heritage Propane, No. 33 at 

p. 1) HPBA stated that DOE’s 

interpretation that a product may be 

classified as direct heating equipment 

independent of the manufacturer’s 

principle intention in designing, 

manufacturing, and marketing the 

product, is irrational in the context of 

efficiency regulation because, by 

definition, the efficiency of a product 

can be determined only in reference to 

how efficiently it serves its intended 

purpose. (HPBA, Public Meeting 

Transcript, No. 14 at p. 19) 

Specifically regarding vented gas log 

sets, Jeff Simmons stated that vented gas 

logs should not be considered direct 

heating equipment, because they do not 

generate a net gain of heat since any 

heat produced by the fire is balanced by 

the heat going up the vent or chimney 

(Simmons, No. 24 at p. 1) Big Woods 

stated that vented gas log sets cannot be 

made to be an efficient heater. (Big 

Woods, No. 3 at p. 1) Rasmussen stated 

that gas log sets should not be 

categorized as gas fireplace appliances, 

a term which encompasses heater-rated 

and decorative fireplaces, because gas 

log sets have the distinguishing 

characteristic of not being constructed 

as part of an entire enclosure with a 

surrounding box, viewing pane, or 

sealed system, as noted by DOE in the 

Frequently Asked Questions (FAQ) 

published for hearth products after the 

April 2010 final rule. (Rasmussen, 

Public Meeting Transcript, No. 14 at p. 

68) U.S. Congresswoman Grace 

Napolitano stated that DOE was correct 

in the April 2010 rulemaking that 

interpreted the definition of vented 

hearth heater as not covering vented gas 

log sets. (Grace Napolitano, No. 224 at 

p. 1) NRDC and EarthJustice stated that 

there is no rational basis for treating gas 

log sets differently than vented gas 

fireplace, because both types of 

products are designed to furnish 

warmed air to the living space of a 

residence, and noted that during the 

September 1, 2011 hearing, 

manufacturers of gas log sets conceded 

that one of the functions of their 

products was to convey heat to the 

living space. (NRDC and EarthJustice, 

No. 216 at pp.1–2) 

DOE also received a number of 

comments describing the heating aspect 

of primarily decorative hearth products 

and vented gas log sets. Intertek 

commented that primarily decorative 

hearth products are designed for 

ambiance and produce heat indirectly, 

and explained that although primarily 

decorative products are usually 

designed to produce as little heat as 

possible, some customers do use 

primarily decorative products as 

secondary or back-up heat sources. 

(Intertek, No. 198 at p. 2) Intertek stated 

that gas log sets designed to be installed 

in wood burning fireplaces produce low 

but highly variable net heat output, 

which depends on the specific fireplace 

geometry, materials, chimney and 

damper, duration of operation, and 

outdoor temperature. (Intertek, No. 198 

at p. 2) Rasmussen stated that the heat 

emitted by gas log sets is not solely 

under the control of the manufacturer, 

but also depends on the efficiency of the 

fireplace in which it is installed, the 

ambient temperature inside and outside 

the house, the level at which the 

consumer burns the gas log, and the 

height of the flame. (Rasmussen, Public 

Meeting Transcript, No. 14 at p. 75) 

Rasmussen also stated that consumers 

use gas log sets in vented wood-burning 

fireplaces as appliances for ambiance 

with a secondary function of warmth, 

and that gas log sets can be used as a 

source of emergency warmth in case of 

power outages, which disable electric 

heat pumps. (Rasmussen, Public 

Meeting Transcript, No. 14 at p. 76) 

Rasmussen stated that the residual heat 

benefit is an extra feature that 

sometimes helps out in times of power 

outages during ice storms, but that 

people are not going to use these feature 

as the primary means of warming. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at p. 160) Bradley Hughes of 

AmeriGas stated that primarily 

decorative vented gas appliances are for 

ambiance and only used as supplements 

for the main heat source in the home. 

(Bradley Hughes, No. 117 at p. 2) 

Similarly, Don Leonard of AmeriGas 

remarked that many customers used 

primarily decorative direct vent 

fireplaces to augment other sources of 

heating, and that primarily decorative 

fireplaces work nicely as an area heater. 

(Don Leonard, No. 52 at p. 1) C.J. Ellson 

of AmeriGas commented that thousands 

of Arizonans use gas log sets and 

fireplaces to offset their primary 

furnaces. (C.J. Ellson, No. 47 at p. 1) 

Titan commented that primarily 

decorative hearth products are useful as 

a back-up source of heat in the case of 

power outages. (Titan Propane, No. 220 

at p. 1) 

NRDC and EarthJustice stated that it 

may be appropriate for DOE to recognize 

an exclusion from the standards for 

direct heating products that are 

designed and marketed to provide a 

decorative amenity; however, the 


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5For more information, see: http:// 

www.rasmussen.biz/logs/chill.html (last accessed 

11/8/2011). 6For more information, see: http:// 

www.rasmussen.biz/logs/pdf/C1.DFC1.203.pdf (last 

accessed 11/8/2011). 7For more information, see: http:// 

www.empirecomfort.com/empirecomfort/ 

Fireplaces/mantis.asp and http:// 

www.mantisbyempire.com/assets/MANTIS/ 

brochures/Mantis_Brochure.pdf (last accessed 11/8/ 

2011). 

existence of this decorative aspect does 

not eliminate the fact that these 

products also serve a heating function 

and are accordingly classified as direct 

heating equipment. (NRDC and 

EarthJustice, No. 216 at pp. 1–2) The 

Appliance Standards Awareness Project 

(ASAP) stated that with the exclusion 

criteria, DOE is trying to close loopholes 

in which non-decorative products could 

qualify for the exclusion. (ASAP, Public 

Meeting Transcript, No. 14 at p. 113) 

EarthJustice stated that since DOE 

already had an efficiency standard in 

place for vented hearth heaters, it 

needed to find a way to distinguish 

units that should follow those standards 

versus primarily decorative ones that 

are not required to follow the standards. 

(EarthJustice, Public Meeting Transcript, 

No. 14 at pp. 96–97) 

As noted previously, DOE recognizes 

that certain vented hearth products may 

be intended to be primarily decorative 

in nature. However, DOE also believes 

that intended product use is not a 

dispositive factor in determining 

whether the product is direct heating 

equipment. By their nature, all gas 

hearth products have a flame and are 

installed in the living space. As a result, 

they will give off heat to the living 

space, meaning they meet the applicable 

definitions for ‘‘direct heating 

equipment’’ and qualify as direct 

heating equipment under the statute 

regardless of the duality of function (i.e., 

providing an aesthetic aspect in 

addition to a heating benefit). As noted 

by several interested parties within the 

industry, products such as vented gas 

log sets and primarily decorative hearth 

products are often used by consumers as 

a supplemental, secondary, or 

emergency heat source. Regarding 

assertions that other products in the 

living space (such as refrigerators, light 

bulbs, etc.) provide heat to the space, 

but are not regulated as direct heating 

equipment, DOE notes that many of 

these products are already regulated for 

energy efficiency under EPCA, and offer 

ready metrics for quantifying energy 

efficiency. Further, DOE notes that none 

of the ‘‘analogous’’ products seek to 

avoid regulation as heating equipment, 

while claiming to simulate a product 

(wood-burning fireplace) that is itself a 

heater (even if not regulated). 

As noted above, a manufacturer’s 

stated intent for the use of a product is 

not dispositive in determining whether 

that product is a covered product under 

EPCA. Even if such intent were to be 

considered, DOE examined the 

marketing literature for these products 

and, contrary to HPBA’s assertions, 

found that it is often ambiguous about 

whether a product is intended for use as 

a heater or is solely decorative 

equipment. For example, DOE found 

that Rasmussen markets a line of gas log 

sets named the Chillbuster ‘‘Heat Effect’’ 

Gas Log Heaters under the trade name 

‘‘Nice and Warm.’’ 5 DOE found that the 

product literature for this particular 

product indicates that these gas log sets 

can be used either as an unvented or 

vented gas log set. In unvented gas log 

sets, most of the heat will go into the 

space in which the product is installed 

(because none of the heat is vented up 

the flue as with vented products), while 

vented gas log sets are recognized as 

more decorative in nature because some 

percentage of the heat energy escapes 

through the flue; however, the product 

literature and installation manual do not 

clearly indicate that the gas log set will 

only provide a heating function when it 

is used as an unvented set, and is not 

achieved when the product is used as a 

vented gas log set. The literature points 

out that the product is a good source of 

supplemental heat and seems to suggest 

a potential method to configure the 

damper of the chimney, to allow it to 

maximize the maintenance of heat when 

operating in a vented mode. Further, 

DOE notes that the installation manual 

for this product refers to it as a ‘‘heater’’ 

when providing instructions for both 

vented and unvented installation.6 DOE 

also reviewed the product literature for 

the Mantis by Empire Comfort Systems, 

which is a high-efficiency hearth heater 

and is obviously intended to be used as 

a heater.7 In fact, the manufacturer 

promotes the fact that this product has 

an annual fuel utilization efficiency 

applicable to other types of vented 

home heating equipment. However, 

DOE found that this product is marketed 

similarly to many ‘‘decorative’’ 

products, in that the product literature 

shows the product installed in the living 

space, with many optional decorative 

features such as a mantle surround or 

copper metallic wall surround. 

Moreover, the marketing materials for 

this heating product made direct 

statements about the ‘‘ambiance’’ that 

the unit achieves. Such ambiguities in 

product marketing literature make it 

difficult to determine whether the 

hearth products are intended for heating 

or are intended to be used for ambiance. 

Further, given that both ‘‘heating’’ and 

‘‘decorative’’ vented hearth products are 

capable of providing both heat and 

ambiance, it is often difficult to 

determine which function is primary 

and which is secondary when reviewing 

manufacturer literature. 

DOE’s proposed definition provides a 

clear distinction that will allow 

manufacturers and consumers to 

differentiate between products that are 

primarily heaters and products that are 

primarily decorative. Due to the fact that 

even those products deemed 

‘‘decorative’’ by industry (including 

vented gas log sets) often generate 

enough heat to be considered as a 

secondary heat source (as explained 

above), and are typically marketed by 

the manufacturers to promote that fact, 

DOE believes they are appropriately 

categorized as direct heating equipment. 

However, in recognizing the primarily 

decorative nature of certain products 

that are intended to be used primarily 

as a decorative product rather than a 

heating product, DOE provided the 

exclusion in the April 2010 final rule to 

identify the primarily decorative 

products that should not be subject to 

the standards for vented hearth heaters. 

Today’s notice, while recognizing that 

hearth heating products have a duality 

of purpose, improves the previous 

definition by providing a clear, objective 

distinction between those hearth 

heating products that are primarily 

decorative and those that are primarily 

used for utilitarian heating (both of 

which are direct heating equipment 

under EPCA) and allows manufacturers 

of primarily decorative hearth products 

to continue manufacturing primarily 

decorative products that would not be 

subject to the standards for direct 

heating equipment. 

In addition, DOE believes that the 

exclusion being adopted in today’s 

notice improves upon the previous 

exclusion adopted in the April 2010 

final rule, because that exclusion may 

have allowed heater-type products to 

qualify for the decorative inclusion. For 

example, Empire’s Mantis, which is 

intended for use as a space heater, is 

available in a configuration where it can 

be operated with an input rating of 

9,000 Btu/h. If this was the only 

operational mode, this unit would have 

qualified for the exclusion in the April 

2010 final rule, even though it is clearly 

intended to be a heater. (DOE notes that 

the Mantis demonstrates that 

manufacturers possess the technological 

capability to produce vented hearth 

products at relatively low gas input 

levels (i.e., below 9,000 Btu/h) which 

are also aesthetically pleasing.) Under 

the new exclusion criteria, this product 


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would not qualify for the exclusion 

unless it met the four criteria, which 

would clearly identify it as a decorative 

product. 

B. Amended Definition for ‘‘Vented 

Hearth Heater’’ 

DOE is amending the definition for 

‘‘vented hearth heater’’ to read as set 

forth in the regulatory text of this final 

rule. Specifically, the amended 

definition explicitly states that the 

energy conservation standards for 

vented hearth heaters are not applicable 

for vented gas log sets at this time. The 

amended definition also provides that 

vented gas hearth products are excluded 

from the energy conservation standards 

for vented hearth heaters if they are: (1) 

Certified to ANSI Standard Z21.50, but 

not to ANSI Standard Z21.88; (2) sold 

without a thermostat and with a 

warranty provision expressly voiding all 

manufacturer warranties in the event 

the product is used with a thermostat; 

(3) expressly and conspicuously 

identified on its rating plate and in all 

manufacturer’s advertising and product 

literature as a ‘‘Decorative Product: Not 

For Use As A Heating Appliance’’; and 

(4) with respect to products sold after 

January 1, 2015, not equipped with a 

standing pilot light or other 

continuously-burning ignition source. 

The amendments to the definition of 

‘‘vented hearth heater’’ being adopted in 

this final rule are related to the scope of 

the exclusion for the subset of such 

heaters that DOE has determined should 

not be subject to the current energy 

conservation standards otherwise 

applicable to vented hearth heaters. In 

the April 2010 final rule, DOE defined 

the exclusion for primarily decorative 

vented hearth products as those with 

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

20112, 20129, 20234 (April 16, 2010). 

Further, vented gas log sets were not 

addressed in that rulemaking. The 

changes to the definition that DOE is 

adopting in this notice are twofold and 

are discussed in the paragraphs that 

follow. 

First, DOE has determined that the 

definitions of direct heating equipment 

are inclusive of vented gas log sets, 

given the fact that these are gas-burning 

appliances that generate heat, and some 

of that heat is transferred to the living 

space. Under DOE’s previous 

interpretation, these products were not 

subject to standards for direct heating 

equipment; however, as noted in section 

III.A.2, DOE now clarifies that these 

products should be classified as vented 

hearth products. As noted by interested 

parties, despite their decorative nature, 

vented gas log sets can be used by 

consumers as a secondary heat source, 

demonstrating that they are 

appropriately categorized as direct 

heating equipment. However, DOE is 

excluding vented gas log sets from being 

subject to the energy conservation 

standards for vented hearth heaters at 

this time. Based on the comments 

received on the proposed exclusion 

criteria for vented gas log sets contained 

in the NOPR (which are summarized 

below) DOE believes that additional 

research and subsequent rulemaking are 

warranted on these products prior to 

adopting standards or exclusion criteria. 

Second, DOE is adopting a specific set 

of criteria (rather than the 9,000 Btu/h 

input rating limitation) for establishing 

whether a vented hearth product should 

be excluded from the energy 

conservation standards because such 

product is primarily decorative in 

nature. DOE believes that the conditions 

outlined in the definition for classifying 

a vented hearth product as decorative 

will create a clear, objective division 

between vented hearth products, which 

will be subject to DOE’s standards for 

gas hearth direct heating equipment, 

and those vented hearth products that 

focus primarily on providing ambiance 

and aesthetic utility, which will not be 

subject to DOE’s standards. DOE also 

expects that the amendments to the 

definition will lessen the burden on 

manufacturers and allow DOE to 

achieve greater energy savings than 

under the previous definition, while 

still achieving the energy efficiency 

mandate of EPCA, primarily through 

elimination of standing pilot lights or 

other continuously-burning ignition 

sources. DOE’s analysis suggests that 

amendments associated with the 

amended definition will result in 

significant energy savings that will be 

greater than the savings under the 

definition adopted in the April 2010 

final rule, both overall as well as for the 

types of units eligible for the exclusion. 

(See section III.C of this notice for 

details on the estimated energy savings.) 

1. Description of Criteria for 

Classification as Decorative Vented 

Hearth Products 

As noted above, DOE’s amendments 

to the definition of ‘‘vented hearth 

heater’’ provides an exclusion clause for 

products that are primarily decorative in 

nature, provided that they are either a 

vented gas log set, or meet the four 

criteria to be considered primarily 

decorative that are outlined in the 

definition. In the July 2011 NOPR, DOE 

proposed that both vented gas log sets 

and primarily decorative hearth 

products meet a set of four criteria to be 

considered as primarily decorative 

products that are not subject to the 

standards for gas hearth DHE. 76 FR 

43941, 43945–46 (July 22, 2011). The 

criteria, as well as public comments 

received on the proposed NOPR criteria, 

are explained below. 

DOE also received a number of 

comments that stated generally that the 

exclusion criteria are unnecessary and 

not justifiable on the basis of energy 

savings. These interested parties also 

stated that there is no need for an 

exclusion, because heating efficiency 

standards should not apply to primarily 

decorative products. (Form Letter 

Comments; Creekside Hearth and Patio, 

No. 21 at p. 1; American Gas Log, No. 

49 at p. 2; Hearth and Home, Inc., No. 

144 at p. 2; Crik-IT, No. 15 at p. 3; 

Dealers LP Equipment, No. 20 at p. 2; 

Sun Dance Leisure, No. 17 at p. 3; 

Hearth and Home Shoppe, No. 207 at p. 

1; Sheldon Skolnick Associates, No. 118 

at p. 1; Penn Valley, No. 116 at p. 2; 

Perfection, No. 115 at p. 2; Heritage 

Propane, No. 33 at p. 1) 

In response, DOE believes that the 

exclusion criteria are an essential part of 

setting energy conservation standards 

for ‘‘heating’’ type hearth products in 

order to clearly and effectively 

differentiate them from primarily 

‘‘decorative’’ type products that are not 

subject to standards. This distinction 

will allow manufacturers of primarily 

decorative products to continue to 

manufacture their products, and allow 

consumers to continue to utilize them 

for both their ambiance and heating 

properties. 

In the sections that follow, DOE 

discusses the exclusion criteria for 

vented gas log sets and decorative 

vented hearth products, and the 

comments received regarding the 

exclusion criteria for each type of 

product. Where an interested party 

raised an issue for both vented gas log 

sets and decorative vented hearth 

products, that issue is summarized and 

addressed separately for each type of 

product. 

a. Vented Gas Log Sets 

In the NOPR, DOE proposed 

exclusion criteria for vented gas log sets 

similar to the criteria proposed (and 

being adopted in this notice) for 

primarily decorative hearth products. 76 

FR 43941, 43945–46 (July 22, 2011). In 

response to the proposed criteria, DOE 

received the following comments for 

vented gas log sets. After considering 

the comments, DOE believes additional 

research is warranted, and as a result, is 

not adopting at this time any criteria for 

these products to meet in order to be 

excluded from the direct heating 

equipment standards. Because DOE is 

not adopting any such criteria in this 


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rulemaking, comments raising issues 

with the proposed criteria are no longer 

at issue; however, for completeness DOE 

presents the comments below. 

In the July 2011 NOPR, DOE proposed 

that gas log sets certify to ANSI Z21.60 

in order to be considered primarily 

decorative equipment and, therefore, 

exempt for an efficiency standard. 76 FR 

43941, 43953 (July 22, 2011) Many 

stakeholders submitted comments 

opposing the proposed certification 

requirement, because not all gas log sets 

are currently certified or able to certify 

to ANSI Z21.60. (NPGA, No. 209 at p. 

8; Creekside Hearth and Patio, No. 21 at 

p. 1; Crik-IT, No, 15 at p. 3; Sun Dance 

Leisure, No. 17 at p. 3; Hearth & Home, 

No. 144 at p. 2; American Gas Log, No. 

146 at p. 2; American Gas Log, No. 49 

at p. 2; Heritage Propane, No. 33 at p. 

1; Form Letter Comments; Perfection, 

No. 115 at p. 2; Sheldon Skolnick, No. 

118 at p. 1; Dealers LP Equipment, No. 

20 at p. 2; Penn Valley, No. 116 at p. 2; 

HPBA, Public Meeting Transcript, No. 

14 at pp. 20–21; Hearth and Home 

Shoppe, No. 207 at p. 1) R.H. Peterson 

stated that there is no universal 

certification for gas log sets and that 

they are regulated differently by 

different cities and States. R.H. Peterson 

also commented that only 21 percent of 

their products are certified to ANSI 

Z21.60, compared to over 75 percent 

that are certified to another standard or 

left uncertified. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at pp. 49–50) 

Further, R.H. Peterson stated that ANSI 

Z21.60 only covers gas log burners up 

to 30 inches, but they sell larger sizes 

to accommodate large wood burning 

fireplaces. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at p. 51) R.H. 

Peterson also commented that DOE’s 

requirement of ANSI Z21.60 

certification would eliminate custom 

units because they are, by definition, 

not certified to any particular standard. 

(R.H. Peterson, No. 218 at p. 3) AGA 

stated that the proposed certification 

requirement for gas log sets would 

prohibit thermostats except for 

fireplaces installed in bedrooms or 

bedsitting rooms in Canada, thereby 

preventing the Canadian and U.S. 

standards from aligning. (AGA, No. 217 

at p. 2) Rasmussen stated that many gas 

log sets are not certified because their 

size or design is not covered by an 

existing standard or because not enough 

sets are sold to justify the cost of testing, 

certification, and listing. Rasmussen 

also explained that this does not mean 

the unit is unsafe, because uncertified 

sets are built to the same standard of 

quality as their certified sets. Rasmussen 

estimated that ANSI Z21.60 accounts for 

less than 20 percent of total gas log 

sales, and recommended this provision 

to either be struck from the exclusion or 

the provision be broadened to include 

other standards and uncertified sets. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at pp. 72–74) AGA and NPGA 

commented that manufacturers that do 

not comply with ANSI Z21.60 or 

manufacturers that certify to another 

standard would not be excluded from 

the direct heating equipment standards, 

yet would not be able to demonstrate 

compliance with the current test 

procedures. (AGA, No. 217 at p. 2; 

NPGA, No. 209 at p. 7) 

Manufacturers were also concerned 

because match lit gas log sets would not 

be able to certify to ANSI Z21.60 and 

achieving that certification for such 

units would be unduly burdensome for 

manufacturers. HPBA stated that forcing 

gas log sets to be certified to ANSI 

Z21.60 would result in match light 

systems, which do not use a standing 

pilot light, being outlawed. (HBPA, 

Public Meeting Transcript, No. 14 at p. 

23) R.H. Peterson commented that 50 

percent of all vented gas log sets are 

sold as match lit systems, and match lit 

systems cannot be certified to ANSI 

Z21.60 because the standard requires a 

pre-assembled pilot on the gas log 

burner. Additionally, R.H. Peterson 

noted that only 20 percent of the current 

market is certified to ANSI Z21.60. (R.H. 

Peterson, No. 218 at pp. 2–3; Public 

Meeting Transcript, No. 14 at pp. 51–52) 

R.H. Peterson stated that the 

certification requirements (e.g., a gas 

regulator, warning and rating plates) 

would increase the cost of gas log sets 

by three times the current amount. (R.H. 

Peterson No. 218 at p. 3) SBA stated that 

most gas log sets are not currently 

certified to ANSI Z21.60, and that match 

lit sets (which are a large percentage of 

log sets sold) cannot be certified under 

ANSI Z21.60, thereby eliminating the 

market for match lit log sets. (SBA, No. 

96 at p. 45) NRDC and EarthJustice 

commented that the ANSI standard for 

gas log sets is unwarranted, and if 

manufacturers do not have to certify to 

ANSI Z21.60, then match light systems 

can be used instead of standing pilot 

lights. (NRDC and EarthJustice, No. 216 

at p. 2) Rasmussen noted that matchlighted sets do not fall under the 

requirements of the ANSI Z21.60 

certification that require gas logs to be 

equipped with a safety system to shut 

down the flow of gas to the burner in 

the event of an interruption of the gas 

supply or a flame out. (Rasmussen, 

Public Meeting Transcript, No. 14 at p. 

74) 

The second criterion DOE proposed 

was that gas log sets must be sold 

without a thermostat and with a 

warranty provision expressly voiding all 

manufacturer warranties in the event 

the product is used with a thermostat. 

76 FR 43941, 43953 (July 22, 2011) DOE 

received comments from Rasmussen 

and R.H. Peterson specifically about 

thermostats on gas log sets. Rasmussen 

described consumer use of gas logs with 

and without a thermostat as follows: 

using a thermostat, the consumer sets a 

temperature at which the gas log set cuts 

off the flame; without a thermostat, 

consumers usually set the unit too high 

for a short period of time, then lower the 

flame height and leave it at the lower 

setting for the duration of the evening. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at p. 75) Rasmussen stated that 

having a thermostat on a gas log set is 

a minor feature and does not mean that 

the product is designed to supply heat, 

and further stated that thermostats are 

used with a very small proportion gas 

log set products. Rasmussen pointed out 

that a thermostat helps the elderly turn 

the gas log set on and off without having 

to reach down into the fireplace to do 

so. (Rasmussen, Public Meeting 

Transcript, No. 14 at pp. 116–117) 

Rasmussen concluded that, although the 

thermostat provision may not impact a 

big part of the gas log set market, its 

elimination would limit consumer 

choice, especially for less-mobile 

elderly; therefore, Rasmussen 

recommended the thermostat provision 

be stricken from the final rule for gas log 

sets. (Rasmussen, Public Meeting 

Transcript, No. 14 at p. 77) R.H. 

Peterson commented that they do not 

sell gas log sets with thermostats. (R.H. 

Peterson, Public Meeting Transcript, No. 

14 at p. 119) 

The third criterion is that the product 

must expressly and conspicuously be 

identified on its rating plate and in all 

manufacturer advertising and product 

literature as a ‘‘Decorative Product: Not 

For Use As A Heating Appliance.’’ DOE 

received comments from R.H. Peterson 

and Rasmussen about labeling 

requirements for gas log sets. R.H. 

Peterson commented that labeling 

would impose few additional costs and 

is a more efficient way of reducing the 

small energy usage from the low BTU 

standing pilots used in vented gas logs. 

R.H. Peterson suggested that rather than 

triple the cost of vented gas logs 

products, DOE could achieve very 

similar energy savings, however limited 

they are, by simply adopting labeling 

requirements. (R.H. Peterson, No. 218 at 

p. 10) Rasmussen commented that all 

warnings and labels are printed on 

stickers which are applied to a metal 

plate that accompanies the gas log set, 


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and more stickers may require a larger 

plate. (Rasmussen, No. 208 at p. 5) 

Further, Rasmussen objected to DOE’s 

proposal to categorize gas log sets as a 

‘‘decorative product, not for use as a 

heating appliance.’’ Rasmussen stated 

that classifying the products as vented 

hearth heaters, but stating they are not 

heating appliances, is confusing and 

that the label will likely be ignored by 

consumers. (Rasmussen, Public Meeting 

Transcript, No. 14 at p. 77) 

The final criterion DOE proposed was 

that products manufactured on or after 

July 1, 2014 must not be equipped with 

a standing pilot light or other 

continuously-burning ignition source in 

order to qualify for exclusion from the 

energy conservation standards for 

vented hearth heaters. 

DOE received comments from 

stakeholders opposing this restriction. 

Intertek commented that most gas log 

sets are manually lit and do not have an 

automatic ignition system, and that 

banning standing pilot lights would 

eliminate the lowest-cost, safe 

alternative. Further, Intertek stated that 

eliminating pilot lights would be 

problematic for gas log systems that are 

dual certified and can be used as either 

a vented or unvented appliance and 

require an oxygen depletion safety 

shutoff, which is a specialized form of 

a standing pilot. (Intertek, No. 198 at pp. 

4–5) Similarly, Homefires stated that 

banning a safety control like the 

standing pilot light is a bad idea because 

it could lead to consumers using match 

light systems, which do not have a 

safety control. (Homefires, No. 10 at p. 

1) R.H. Peterson stated that customers 

do not want intermittent ignition 

systems because: (1) It will triple the 

cost of the most common gas log set 

sizes; (2) there is no significant savings; 

and (3) they are difficult to install (due 

to lack of space). (R.H. Peterson, Public 

Meeting Transcript, No. 14 at pp. 47–48) 

Empire did not agree with the exclusion 

criterion for gas log sets, because they 

would have to incorporate an ignition 

system that would double the cost of the 

gas log set. (Empire, No. 221 at p. 2) Mr. 

Simmons commented that matchless 

ignition should be required for 

decorative gas logs that have standing 

pilots because typically, customers with 

matchless ignition turn off the pilot 

when the log set is not in use for long 

periods of time. (Mr. Simmons, No. 24 

at p. 1) NPGA commented that DOE 

cannot exclude decorative log sets from 

coverage of the performance standard as 

not being intended as heating 

appliances and then ban standing pilot 

lights because EPCA does not provide 

DOE with the authority to impose 

design requirements for direct heating 

equipment under 42 U.S.C. 6291(6). 

(NPGA, No. 209 at p. 5) 

Many stakeholders had concerns that 

elimination of standing gas pilot lights 

would significantly increase the cost of 

gas log sets. R.H. Peterson calculated 

that DOE’s proposal would add $600 per 

unit to the cost of a gas log set. (R.H. 

Peterson, Public Meeting Transcript, No. 

14 at p. 47) San Bernardino Fireplace & 

Woodstove stated that the certification 

requirements and the mandatory 

electronic ignition system would 

increase gas log prices from $300–$500 

to $800–$1000, and that less than 1 

percent of their current sales include 

piloted or remote ready systems because 

the high cost. (San Bernardino, No. 11 

at p. 1) Percy Guidry Hearth & Patio 

noted that propane and liquefied 

petroleum vented gas logs are required 

to have safety pilot light kits and that 

requiring manufacturers to have a more 

advanced starter system would increase 

the cost of the product. (Percy Guidry 

Hearth & Patio, No. 18 at p. 3) SBA 

remarked that eliminating standing gas 

pilot lights would be costly to the 

industry because the majority of gas log 

sets have standing gas pilot lights and 

would have to be redesigned and 

recertified if this feature were 

eliminated; SBA stated that using 

electronic ignition systems as an 

alternative to standing gas pilot lights 

would increase the average price from 

$400 to over $1,000, thereby reducing 

sales and profit margin for small 

businesses or even eliminating the 

market if consumers choose not to 

purchase sets. (SBA, No. 96 at p. 6) 

Rasmussen stated that if match lit sets 

and standing pilots are prohibited, it 

leaves only the option of electronic 

ignition systems, which Rasmussen 

argued might eliminate gas log sets from 

the marketplace entirely, since 

electronic ignition systems add more 

than $650 to the retail price of match lit 

sets. Further, Rasmussen stated that 

propane is used in rural areas and 

requires a safety shutdown because it is 

a more dangerous fuel than natural gas, 

and that mandating electronic ignitions 

for those sets could make gas log sets 

unaffordable for the rural poor. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at p. 79) NPGA commented that 

banning standing gas pilots in propane 

units would require redesign for over 95 

percent of propane units, which would 

be burdensome and costly. (NPGA, No. 

209 at p. 8) 

Several stakeholders also opposed 

eliminating standing pilot lights from 

gas log sets because of installation 

limitations associated with this product. 

Rasmussen commented that gas log sets 

with electronic ignition systems are 

hard to install because gas logs do not 

have side and under floor spaces to hide 

the electronic ignition components. 

Rasmussen further explained that the 

majority of gas log set installations are 

not new construction or extensive 

remodels, meaning electronic ignition 

components must be installed in the 

existing firebox. Given that electronic 

ignition components are greater in 

number and size than standing pilots 

and are more heat-sensitive, Rasmussen 

stated that improper location can lead to 

heat damage, which poses a safety 

hazard. Rasmussen noted that since 

most fireplaces do not have a power 

source nearby, the electronic ignition 

system must rely on batteries which are 

very heat sensitive. Rasmussen stated 

that the size of electronic ignition 

systems means the gas log set must 

usually be downsized in order to 

accommodate the necessary control, 

which can detract from the aesthetic 

appeal. (Rasmussen, Public Meeting 

Transcript, No. 14 at pp. 80–81) 

American Gas Log commented that gas 

log sets with electronic ignition are hard 

to install, because most gas log sets are 

retrofitted into wood-burning fireplaces, 

and typical wood-burning fireplaces do 

not have compartments to shield the 

electrical components from the heat. 

American Gas Log stated that it has not 

been able to develop a safe and reliable 

retrofit gas log set with electronic 

ignition. (American Gas Log, No. 49 at 

p. 2) 

Stakeholders also commented about 

the compliance dates for vented gas log 

sets related to both the April 2010 final 

rule and the July 1, 2014 proposed date 

by which manufacturers would have 

had to equip their products with noncontinuously-burning ignition systems. 

Rasmussen stated that component 

manufacturers of electronic ignition 

systems will have difficulty adjusting 

within three years to the new demands 

of gas log set manufacturers, which 

include no standing pilot, battery 

operation, and small BTU footprint. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at p. 107) NPGA commented that 

the April 2010 final rule did not apply 

to gas log sets, so therefore, the 

compliance dates from that rule cannot 

apply to gas log sets, and asserted that 

the standards applicable to gas log sets 

would have to be at least five years from 

date of promulgation of a standard for 

gas log sets. (NPGA, No. 209 at p. 6) 

R.H. Peterson argued that the statute 

requires DOE to give manufactures three 

years from any final rule and asserted 

that to make the ANSI certification 

requirement applicable in April 2013 is 

wrong, because before this rulemaking, 


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DOE had considered gas log sets not to 

be vented hearth heaters subject to this 

requirement. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at pp. 55–56) 

HBPA stated that the current proposed 

compliance dates are illegal and nonachievable, and elaborated that since the 

April 16, 2010 final rule did not apply 

to gas log sets, the April 2013 deadline 

should not apply. (HBPA, Public 

Meeting Transcript, No. 14 at pp. 19–20) 

As previously stated, DOE is not 

adopting any exclusion criteria for 

vented gas log sets at this time. Rather, 

in light of the comments received, DOE 

has determined that it must conduct 

additional research into the gas log set 

market prior to adopting any specific 

criteria for exclusion from the direct 

heating equipment standard, which 

would be done through subsequent 

rulemaking. DOE appreciates the 

comments received from the interested 

parties, as they raised significant issues 

for DOE to address and lead DOE to 

exclude all vented gas log sets from the 

standard. As a result, DOE is not 

addressing each comment in detail. 

b. Vented Hearth Products 

For vented hearth products (other 

than vented gas log sets), the first 

criterion that a product must meet to be 

considered a primarily decorative 

vented hearth product is that it must be 

certified to a certain ANSI standard. 76 

FR 43941, 43953 (July 22, 2011) 

Specifically, for vented hearth products, 

it must be certified to ANSI Standard 

Z21.50–2007, Vented Gas Fireplaces, 

but not be certified to ANSI Standard 

Z21.88–2009, Vented Gas Fireplace 

Heaters. (A unit could not be certified 

to both standards and still qualify for 

the exclusion.) DOE is incorporating by 

reference both of these standards into 

the DOE’s definitions at 10 CFR 430.2 

and the incorporation by reference 

provisions at 10 CFR 430.3. DOE 

recognizes that the hearth products 

industry has attempted to distinguish 

between heater and primarily decorative 

products using the certification under 

one of these standards as the criterion 

for classification into one category or 

the other. However, although this is a 

general practice in industry, DOE notes 

that not all manufacturers apply this 

criterion consistently to differentiate 

their heating hearth products from their 

primarily decorative products. As such, 

DOE has determined that this criteria, 

although an important part of DOE’s 

definition, cannot be used alone to 

differentiate between the two types of 

products. In addition, ANSI Standard 

Z21.88 contains provisions that allow 

the main burners to be thermostaticallycontrolled, which ANSI Standard 

Z21.50 does not allow. Therefore, DOE 

believes this criterion will be helpful in 

differentiating, at least in part, between 

vented hearth heaters and vented hearth 

products that are primarily decorative in 

nature. 

In response to this proposed criterion 

in the NOPR, DOE received comments 

from several stakeholders. HPBA stated 

that there are decorative gas fireplaces 

that are not certified to ANSI Z21.50 

(the standard covering decorative gas 

fireplaces) and that it has submitted this 

information to DOE. (HPBA, Public 

Meeting Transcript, No. 14 at pp. 20–21) 

AGA remarked that ANSI Z21.50 

prohibits thermostats except for 

fireplaces installed in bedrooms or 

bedsitting rooms in Canada, and this 

rulemaking would prevent alignment of 

Canadian and U.S. standards. However, 

Rasmussen agreed with DOE that ANSI 

Z21.88 and ANSI Z21.50 differentiate 

decorative and heater-rated fireplaces, 

but noted that not all jurisdictions on 

the eastern seaboard require ANSI 

Z21.88 or ANSI Z21.50 certification. 

(Rasmussen, Public Meeting Transcript, 

No. 14 at p. 72) 

In response, DOE notes that although 

Canadian and U.S. standards may not 

align, DOE believes that this criterion 

provides an important and necessary 

means of distinguishing vented hearth 

heaters and vented hearth products that 

are primarily decorative in nature, 

because it is the method of 

differentiation that industry has 

traditionally used. However, as 

provided by HPBA, DOE found that 

some products asserted to be primarily 

decorative were certified to the heater 

standard and some products were 

certified to both ANSI standards. In 

response to HPBA’s concerns about 

products that are not certified to ANSI 

Z21.50, DOE believes that the burden 

manufacturers incur by certifying that 

small subset of products would be less 

than burdens that would have been 

incurred under the conditions of the 

April 2010 final rule. As a result, DOE 

believes that the first exclusion criterion 

is reasonable and essential in 

differentiating between primarily 

decorative and heating hearth products. 

The second criterion in the definition 

is that the product must be sold without 

a thermostat and with a warranty 

provision expressly voiding all 

manufacturer warranties in the event 

the product is used with a thermostat. 

76 FR 43941, 43953 (July 22, 2011) 

Hearth products intended for heating 

sometimes use thermostats to 

automatically turn on and off based on 

the temperature of the surrounding 

space. Often, thermostats are optional 

equipment that may be installed in the 

field. DOE believes that products 

intended to be used primarily for 

decorative purposes would not need to 

employ a thermostat. A thermostat 

cycles the appliance on and off based on 

the temperature of the room. If a 

consumer is concerned with ambiance 

(which should be the case for primarily 

decorative appliances), then there is no 

reason why a thermostat would be 

required to automatically control the 

operation based on the room 

temperature. DOE believes that a 

provision in the warranty that voids it 

if a thermostat is installed will 

discourage the misuse of vented hearth 

products that are intended primarily to 

be decorative and discourage the 

evasion of energy conservation 

standards by those who purchase 

primarily decorative products and seek 

to use them as heaters. 

In response to DOE’s proposal of this 

criterion in the NOPR, DOE received 

several comments from interested 

parties. Intertek remarked that primarily 

decorative gas appliances are not 

allowed, under applicable codes and 

safety standards, to be supplied or 

installed to operate under thermostatic 

control, and that such products are 

supplied with an on/off control which 

may be a knob or valve of the appliance. 

Intertek stated that DOE has correctly 

identified thermostatic control as a key 

distinguishing feature of heating 

appliances. (Intertek, No. 0198 at pp. 

2–3) Rasmussen stated that it does not 

take issue with removing thermostats, 

but noted that the issue of banning 

thermostats on primarily decorative 

fireplaces was confusing, since the 

thermostat acts as an automatic shutoff 

device that prevents the consumer from 

over-using a primarily decorative 

appliance for heating purposes. 

Rasmussen asserted that DOE has 

focused too much on the startup 

function of thermostats rather than on 

the shut-down of the flame. (Rasmussen, 

Public Meeting Transcript, No. 14 at p. 

120; Rasmussen, Public Meeting 

Transcript, No. 14 at p. 75) Many 

stakeholders opposed banning 

thermostats for safety reasons. 

AmeriGas, Heritage Propane, Siouxland, 

Penn Valley, Gas-Fired Products, and 

Gresham Petroleum commented that 

eliminating thermostats would decrease 

safety and increase energy consumption 

because the decorative products would 

not have a trigger for automatic shutoff 

and would be left on by the consumer. 

(Form Letter Comments; Heritage 

Propane; No. 33 at p. 1; Siouxland, No. 

85 at p. 1; Penn Valley, No. 116 at p. 1; 

Gas-Fired Products, No. 155 at p. 1; 

Gresham Petroleum, No. 165 at p. 1) 


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In response, DOE believes that this 

criterion is important to help 

differentiate between primarily 

decorative and heating appliances, and 

to discourage the misuse of primarily 

decorative vented hearth products. In 

response to the comments about safety, 

DOE finds that eliminating thermostats 

has not been proven to have a 

significant effect on the products safety. 

DOE notes that many hearth products 

are available on the market without 

thermostats, and there is no indication 

in the manufacturer literature, nor have 

the stakeholders provided any 

substantiation, that a hearth product 

without a thermostat is either unsafe or 

poses safety risks. 

The third criterion is that the product 

must expressly and conspicuously be 

identified on its rating plate and in all 

manufacturer advertising and product 

literature as a ‘‘Decorative Product: Not 

for use as a Heating Appliance.’’ 76 FR 

43941, 43953 (July 22, 2011). This 

requirement will provide additional 

clarification for consumers and 

installers and make it obvious that the 

product is intended primarily for 

decorative purposes. DOE received 

several comments on this criterion in 

response to the July 2011 NOPR. 

R.H. Peterson commented that, in the 

NOPR, DOE recognized the importance 

of the role consumers played, and 

considered DOE’s suggestion on better 

labeling requirements for primarily 

decorative fireplaces an attractive 

option for energy savings. (R.H. 

Peterson, No. 218 at p. 10) AGA stated 

that the product was not considered in 

the Federal Trade Commission’s 

labeling discussion, and that primarily 

decorative products should not be 

required to have a label. (AGA, Public 

Meeting Transcript, No. 14 at pp. 85–86) 

DOE disagrees with AGA’s comment 

and notes that the exclusion criterion 

for manufacturers to disclose when their 

products are decorative in nature is not 

mandated for all hearth products, but 

rather, it is optional for those 

manufacturers who elect to pursue the 

exclusion for products that are 

decorative in nature. If such labeling is 

deemed to be overly burdensome, 

manufacturers have the choice to 

redesign products in order to meet the 

standards for gas hearth direct heating 

equipment established by the April 

2010 final rule. As noted above, these 

products, although primarily decorative 

in nature, provide heat and are 

appropriately classified as direct heating 

equipment under the statute. Therefore, 

DOE believes it has the authority to 

require this criterion and believes this 

criterion is essential to help inform 

consumers about the intended use of the 

product. 

The final criterion proposed would 

require that products manufactured on 

or after July 1, 2014, must not be 

equipped with a standing pilot light or 

other continuously-burning ignition 

source in order to qualify for exclusion 

from energy conservation standards for 

vented hearth heaters. 76 FR 43941, 

43953 (July 22, 2011) According to 

DOE’s market research, more than half 

of the primarily decorative hearth 

product market would not be impacted 

by this limitation because the products 

already utilize alternatives to a standing 

pilot light, such as an intermittent pilot 

or electronic ignition. However, DOE 

notes that some products on the market 

would have needed to be: (1) 

Redesigned to eliminate the use of 

standing pilot lights or other 

continuously-burning ignition source; 

(2) redesigned by April 16, 2013 to meet 

the required energy conservation 

standard level for gas hearth direct 

heating equipment established by the 

April 2010 final rule; or (3) removed 

from the market prior to July 1, 2014. 

DOE believes that given the prevalence 

and ease of availability of the 

technological alternatives to standing 

pilot lights and other continuouslyburning ignition sources (e.g., electronic 

ignition, intermittent pilot) and the 

experience of manufacturers in 

implementing these alternatives, a 

compliance date of July 1, 2014 would 

have likely allowed a reasonable 

amount of time for manufacturers to 

redesign or remove from the market 

their products with standing pilots or 

shift production to product lines 

without a standing pilot or other 

continuously-burning ignition source. 

However, in consideration of the 

comments discussed below, DOE has 

revised the July 1, 2014 compliance date 

to January 1, 2015, in order to provide 

manufacturers with more than three full 

years from the time of publication of the 

final rule to implement changes to 

remove standing pilots or other 

continuously-burning ignition sources 

from products that would require it. 

In response to this proposed 

requirement, Short’s Stoves stated that 

most manufacturers are already 

introducing electronic ignition on their 

fireplaces and gas log sets, which will 

save energy by turning off the pilot 

when not in use. (Short’s Stoves, No. 

174 at p. 1) NPGA commented that DOE 

cannot ban standing pilot lights because 

EPCA (42 U.S.C 6291(6)) does not 

provide DOE with the authority to 

impose design requirements. (NPGA, 

No. 209 at p. 5) Intertek stated that 

standing pilot lights are an important 

safety feature that may not be readily 

replaced with electronic ignition 

systems or other intermittent 

alternatives, and suggested DOE 

consider the benefit of allowing 

primarily decorative gas appliances to 

include standing pilot lights, because 

the secondary heating function can 

provide sufficient backup heating 

during a power outage, and it reduces 

the risk of large explosive ignitions. 

(Intertek, No. 198 at pp. 3–4) 

In response to NPGA’s comment 

about DOE’s authority, DOE notes that 

it is not mandating a design requirement 

for primarily decorative hearth 

products, because meeting the exclusion 

criteria is completely optional and at the 

manufacturers’ discretion. If 

manufacturers do not certify their 

product to ANSI Z21.50, then the 

product will not be considered 

primarily decorative, and the product 

may have a standing pilot light; 

however, if the product does not meet 

the criteria for the decorative exclusion, 

then it must comply with the energy 

conservation standards applicable to gas 

hearth direct heating equipment. DOE 

appreciates Intertek’s comment about 

product safety, but it finds that 

eliminating standing pilot lights does 

not significantly reduce product safety, 

because products with alternative 

ignition systems are ubiquitously 

available on the market today. In the 

event of a power outage, DOE notes that 

electronic ignition systems are 

commonly equipped with a battery 

backup system that can provide power. 

Given the prevalence of alternatives to 

continuously-burning ignition systems 

in the market, DOE does not find there 

is adequate evidence of safety concerns 

related to replacing standing pilot 

ignitions or other continuously-burning 

ignition sources. 

Barbara Jenkins, Percy Guidry Hearth 

& Patio, Arizona Gas, and San 

Bernardino Fireplace & Woodstove 

stated that eliminating the standing 

pilot light is unreasonable, because the 

alternative is electronic ignition which 

is expensive and requires more 

maintenance. (Barbara Jenkins, No. 22 at 

p. 1; Percy Guidry, No. 18 at p. 2; 

Arizona Gas, No. 98 at p. 2 ; San 

Bernardino, No. 11 at p. 1) San 

Bernardino Fireplace & Woodstove 

explained that electronic ignition 

systems are unreliable, and that 9 out of 

the 10 electronic ignition systems the 

company has sold did not work well 

and had to be bought back. (San 

Bernardino, No. 11 at p. 1) Exotic 

Flames and Arizona Gas stated that 

electronic ignition systems are costprohibitive and would impact small 

distributer businesses. (Exotic Flames, 


jlentini on DSK4TPTVN1PROD with RULES4
71848 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

No. 19 at p. 1; Arizona Gas, No. 98 at 

p.2) Intertek commented that electronic 

ignitions systems are more expensive 

that standing pilot lights, because they 

require an electrician to install a circuit. 

(Intertek, No. 198 at p. 4) Hearth and 

Home Shoppe commented that banning 

standing pilot lights is unreasonable, 

because electronic ignitions will not 

work effectively at very cold 

temperatures and electronic pilots are 

extremely expensive. (Hearth and Home 

Shoppe, No. 207 at p. 1) Golden Blount 

stated that eliminating standing gas 

pilot lights does not promote safety and 

that the energy savings do not outweigh 

the increased cost of an electronic 

ignition system. (Golden Blount, No. 

210 at p. 1) 

In its analysis for the April 2010 final 

rule, in examining design changes 

between a baseline heating unit and a 

unit at efficiency level 1 (which DOE 

assumed would be met through 

upgrading a baseline unit with an 

electronic ignition), DOE examined the 

differences between the components 

included in an electronic ignition 

system and a standing pilot ignition. In 

the analysis for the April 2010 final 

rule, DOE found the efficiency benefits 

associated with removing the standing 

pilot to be cost-effective (75 FR 20112, 

20219 (April 16, 2010)), and believes 

that the same is true for primarily 

decorative hearth products given the 

similarities between the two in terms of 

components and construction. In 

response to the Hearth and Home 

Shoppe’s comment about the effective 

operational temperature limit of 

electronic ignition, DOE finds that this 

concern is mitigated by the fact that 

only primarily decorative products will 

not be allowed to have a standing pilot 

light, and such products will not be 

used as the primary heat source of the 

residence. 

Interested parties also submitted 

comments about the July 1, 2014, 

compliance date DOE proposed for the 

elimination of standing pilot lights, and 

the April 16, 2013, date by which 

manufacturers must meet the other 

exclusion criteria or the standard for gas 

hearth direct heating equipment. HBPA 

stated that: (1) The proposed July 1, 

2014 compliance date for pilot 

restrictions contradicts the law; (2) DOE 

does not provide justification for the 

deadline; and (3) the deadline fails to 

consider the pressure it places of testing 

laboratories and their capacity. (HPBA, 

No. 201 at p. 20) Conversely, NRDC and 

EarthJustice commented that the 

proposed compliance dates are 

reasonable, because there are several 

low-cost options available to 

manufacturers seeking to replace 

standing pilot light systems, including 

manual and electronic spark ignitions 

systems. (NRDC and EarthJustice, No. 

216 at p. 2) 

Several interested parties commented 

that compliance deadlines for primarily 

decorative vented gas fireplaces and gas 

log sets are arbitrary and unreasonable 

and cannot be met by the industry, 

because most manufacturers do not have 

the funds to meet the deadline. (CrikIT, No. 15 at p. 2; Sun Dance Leisure, 

No. 17 at p. 2; Dealers LP Equipment, 

No. 20 at p. 1; Creekside, No. 21 at p. 

1; HWAM, No. 43 at p. 1; American Gas 

Log, No. 49 at p. 1; Perfection, No. 115 

at p. 2; Penn Valley, No. 16 at p. 2; 

Sheldon Skolnick, No. 118 at p. 1; 

Hearth and Home, No. 144 at p. 2; 

American Gas Log, No. 146 at p. 2; Form 

Letter Comments, Hearth and Home 

Shoppe, No. 207 at p. 1; New Jersey 

Propane Gas Association, No. 212 at p. 

1; Mr. Pierce, No. 219 at p. 1; 

Advantage, No. 13 at p. 1; Empire, No. 

221 at p. 2) NPGA commented that 

certification would be extremely 

burdensome to manufacturers. (NPGA, 

No. 209 at p. 8) Empire stated that 

manufacturers need time for research 

and development, and also the volume 

of certifications will increase, making 

2014 too aggressive for an industry 

made up of small businesses with 

limited resources. (Empire, Public 

Meeting Transcript, No. 14 at p. 62) 

HBPA stated that according to Executive 

Order 13563, DOE needs to consider the 

cumulative impact of regulations, and 

since burdensome regulations have 

already been imposed on the hearth 

industry, adding more regulations 

would create a backlog on the few 

independent testing labs that certify 

hearth products. They believe that labs 

will not be able to handle the surge of 

new equipment that needs to be tested 

from the EPA New Source Performance 

Standards for wood-burning products 

(expected in the first quarter of 2013) 

and the current DOE regulations for 

heater-rated hearth products. (HPBA, 

Public Meeting Transcript, No. 14 at pp. 

20–21) Modern Gas commented that the 

industry is not ready to implement new 

standards by the proposed compliance 

deadline. (Modern Gas, No. 0213 at p. 

1) Short’s Stoves stated that DOE’s 

compliance timeline will be detrimental 

to the industry, because most small 

manufacturers do not have the funds to 

meet the regulations and redesign their 

equipment. (Short’s stoves, No. 174 at p. 

1) Lennox stated that the proposed date 

violates the established precedent 

allowing at least three years for 

industries to implement new energy 

conservation standards, and requests 

DOE justify the accelerated effective 

date. Lennox explained that the current 

timeline places tremendous burden on 

the manufacturers. (Lennox, No. 6 at pp. 

1–2) Empire suggested DOE consider 

extending the compliance date to be 

effective three years after the 

publication of the final rule. Empire 

explained that 70 percent of the 

industry shipments are primarily 

decorative hearth products and that the 

manufacturers, which are mostly small 

businesses, need more time for research 

and development and certification. 

(Empire, No. 4 at p. 2; Empire, Public 

Meeting Transcript, No. 14 at p. 61) 

As explained below, DOE believes 

that the compliance date of April 16, 

2013 for meeting the first three 

exclusion criteria is reasonable, because 

the exclusion criteria adopted by this 

rulemaking for primarily decorative 

vented hearth products are both 

achievable and optional. The April 2010 

final rule would require most primarily 

decorative equipment covered by this 

rulemaking to comply with the energy 

conservation standards for vented 

hearth products by April 16, 2013, 

giving manufacturers three full years 

lead time contemplated under EPCA to 

upgrade their products to meet the 

energy conservation standards, if they 

choose to do so. Today’s final rule 

amends the April 2010 final rule to 

reduce the difficulty of meeting the 

exclusion. DOE notes that beyond 

statements of their opinion, the 

commenters have provided no data or 

other information to show why they 

could not meet the deadlines DOE has 

proposed. DOE does not believe that 

certification, elimination of thermostats, 

and proper labeling could not be 

accomplished by April 16, 2013, and 

DOE believes that it is important to 

implement these changes to the 

exclusion for decorative products by the 

time compliance is required with the 

direct heating equipment standards, so 

as to prevent consumer confusion and 

disruptions in the marketplace. 

Moreover, DOE notes that it is no longer 

requiring gas log sets to comply with 

exclusion criteria nor the energy 

conservation standard, which will 

reduce the burden on test labs 

performing certification testing. DOE 

recognizes that elimination of the 

standing pilot light or other 

continuously-burning ignition source 

would likely require a more substantial 

change to manufacturers’ affected 

product lines. Accordingly, for this 

criterion DOE is changing the 

compliance date from July 1, 2014, as 

proposed in the NOPR, to January 1, 

2015 to provide more than three years 


jlentini on DSK4TPTVN1PROD with RULES4
Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71849 

8U.S. Department of Energy—Office of Codes and 

Standards, Analytical Tools: Energy Conservation 

Standards for Residential Water Heaters, Direct 

Heating Equipment, and Pool Heaters (April 27, 

2010). (http://www1.eere.energy.gov/buildings/ 

appliance_standards/residential/pdfs/ 

htgp_finalrule_correction.pdf). 

9Menkedick, 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. 

10Houck, James, ‘‘Residential Decorative Gas 

Fireplace Usage Characteristics’’ (Report prepared 

for HPBA) (2010). 

11U.S. Department of Energy—Office of Codes 

and Standards, Technical Support Document: 

Energy Conservation Standards for Residential 

Water Heaters, Direct Heating Equipment, and Pool 

Heaters (April 27, 2010). 

12U.S. Department of Energy—Office of Codes 

and Standards, Technical Support Document: 

Energy Conservation Standards for Residential 

Water Heaters, Direct Heating Equipment, and Pool 

Heaters (April 27, 2010). 

13This value was derived from data collected on 

the following manufacturer Web sites: 

Pittsburg Gas Grill and Heater Co. Frequently 

Asked Questions. (URL: http:// 

www.pittsburghgasgrill.com/faq.html). 

Hargrove Hearth Products. Frequently Asked 

Questions. (URL: http://www.hargrovegaslogs.com/ 

faq.htm). 

Leonard’s Stone & Fireplace. Frequently Asked 

Questions. (URL: http:// 

www.leonardsstoneandfireplace.net/faq.html). 

Fireside Hearth & Home. Frequently Asked 

Questions. (URL: http:// 

www.firesidehearthandhome.com/faq.php). 

Heatilator. Common Questions. (URL: http:// 

www.heatilator.com/customerCare/ 

searchFaq.asp?c=Gas). 

14Houck, James, ‘‘Residential Decorative Gas 

Fireplace Usage Characteristics’’ (Report prepared 

for HPBA) (2010). 

before the compliance date for removing 

continuously-burning ignition sources. 

DOE believes the January 1, 2015 

compliance date for this criterion is 

reasonable, particularly given that the 

alternatives to continuously-burning 

ignition sources are readily available 

and currently used in a number of 

hearth products available on the market. 

C. National Energy Savings 

As noted above, in the NOPR, DOE 

proposed that to qualify for an exclusion 

from the current energy conservation 

standards for products that are primarily 

decorative in nature, vented gas hearth 

products and vented gas log sets 

manufactured on or after July 1, 2014, 

must not be equipped with a standing 

pilot light or other continuouslyburning ignition source. 76 FR 43941, 

43944–45 (July 22, 2011). For the NOPR, 

DOE analyzed the energy savings 

expected to result from exclusion of the 

standing pilot light or other 

continuously-burning ignition source in 

the amended ‘‘vented hearth heater’’ 

definition. Based on information about 

vented hearth product models available 

in the market,8 DOE estimated that 

about 38 percent of the vented 

decorative hearth models on the market 

would need to be redesigned to 

eliminate the use of standing pilot lights 

or other continuously-burning ignition 

sources. DOE also estimated that 20 

percent of vented gas logs would have 

standing pilot lights or other 

continuously-burning ignition sources, 

based on a 1997 GTI study.9 The 

remaining portion of the market is 

assumed to already utilize ignitionbased alternatives, such as an 

intermittent pilot, electronic ignition, or 

match light ignition system (gas logs 

only). 

Several parties criticized DOE’s 

estimate of the fraction of vented gas 

logs that would have standing pilot 

lights or other continuously-burning 

ignition sources. (HPBA, No. 0014 at p. 

26; RH Peterson, No. 0218 at p. 2; 

Rasmussen, No. 0208 at p. 6) DOE 

acknowledges the above comments. 

However, DOE is not adopting in this 

final rule a standing pilot removal 

requirement for this product. 

To estimate the energy savings, in the 

NOPR, DOE assumed that all primarily 

decorative hearth products and vented 

gas log models with standing pilot lights 

or other continuously-burning ignition 

sources would be replaced with an 

intermittent pilot ignition, and would 

have an average duration of the pilot 

operation of about 37.5 h/yr (the same 

as the main burner operating hours 10). 

On average, continuous pilot energy use 

is about 350 Btu/h 11 for primarily 

decorative vented hearth products 12

and 1,250 Btu/h for vented gas logs.13

For both vented hearth products and 

vented gas log sets, DOE assumed that 

pilot lights operate year round (i.e., 

8,760 h/yr) for 75 percent of the 

installations and that for the remaining 

25 percent, the consumer operates the 

pilot for about one-fourth of the year 

(i.e., 2,190 h/yr). The average annual 

energy savings amount to 2.67 million 

Btu per unit for primarily decorative 

vented hearth products and 9.53 million 

Btu per unit for vented gas logs. DOE 

assumed an average lifetime of 15 years 

for both primarily decorative vented 

hearth and vented gas logs units and 

average annual shipments of 460,000 

primarily decorative vented hearth units 

and 103,000 vented gas log units. 

Using the above assumptions, in the 

NOPR, DOE calculated the national 

energy savings over the analysis period 

to be 0.17 quads for primarily decorative 

hearth products and 0.07 quads for 

vented gas log sets under the proposed 

revised definition of ‘‘vented hearth 

heater’’ with an exclusion that would 

eliminate the standing pilot lights on 

those units. In the NOPR, DOE 

estimated that the elimination of 

standing pilots or other continuouslyburning ignition sources in primarily 

decorative vented hearth products and 

gas log sets would result in an 

additional 0.12 quads of energy savings 

over the 30-year period from 2014 

through 2043, beyond the savings 

estimated by the April 2010 final rule. 

76 FR 43941, 43943 (July 22, 2011). 

Commenting on the NOPR, several 

parties stated that DOE overestimated 

the national energy savings for primarily 

decorative hearth products and vented 

gas log sets under the proposed revised 

definition of ‘‘vented hearth heater.’’ 

(NPGA, No. 0209 at p. 9; SBA, No. 0096 

at p. 6; RH Peterson, No. 0218 at p. 3) 

Commenters criticized DOE’s 

assumptions in three main areas: (1) 

Product operating hours; (2) pilot light 

usage; and (3) pilot light gas input rate. 

Regarding product operating hours, 

Rasmussen commented that the 

operating hours for primarily decorative 

hearth products and vented gas logs are 

highly variable. (Rasmussen, No. 0208 at 

p. 6) Homefires commented that for 

primarily decorative vented gas 

appliances, the typical system is only in 

use for 20 hours per year. (Homefires, 

No. 0010 at p. 1) DOE agrees that the 

operating hours for primarily decorative 

hearth products and vented gas logs are 

highly variable, but for the current 

national energy savings analysis, it was 

only necessary to use an average value. 

For primarily decorative hearth 

products, DOE used 35 hour per years 

based on a report prepared for HPBA.14

Regarding pilot light usage, several 

parties stated that DOE overestimated 

the number of customers that leave their 

standing pilot light on during the nonheating season. (Rasmussen, No. 0208 at 

p. 7; Intertek, No. 0198 at p. 4) Exotic 

Flames and SBA stated that most 

standing pilot lights are not left on all 

the time, and Independence Marketing 

commented that most pilot lights are 

only left on during the winter. (Exotic 

Flames, No. 0019 at p. 1; SBA, No. 0096 

at p. 6; Independence Marketing Ltd, 

No. 0214 at p. 1) Homefires stated that 

the pilot light is generally turned off 

after the customer uses the system. 

(Homefires, No. 0010 at p. 1) Arizona 

Gas stated that most standing pilot 

lights are lit at most 4 to 5 months or, 

for propane systems, are only lit for 

each use to conserve fuel. (Arizona Gas, 

No. 0098 at p. 2) HPBA stated that 

DOE’s assumption that 75 percent of all 

standing pilots are left on all year, while 

25 percent are left on for a quarter of the 

year, lacks evidence. (HPBA, No. 0201 

at p. 2) NPGA stated that 75 percent of 

consumers keep their pilot lights on for 


jlentini on DSK4TPTVN1PROD with RULES4
71850 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

15According to Energy Information 

Administration’s 2009 Residential Energy 

Consumption Survey, 23 percent of secondary 

fireplaces use propane. For more information see: 

http://www.eia.gov/consumption/residential/data/ 

2009/. 

16This value was derived from data collected on 

the following manufacturer Web sites: 

GRI 1997 Study: Menkedick, J., Hartford, P., 

Collins, S., Chumaker, S., Wells, D. ‘‘Topic Report: 

Hearth Products Study (1995–1997)’’. Gas Research 

Institute (GRI). September 1997. GRI–97/0298. 

EER Consulting: Mullen, J. ‘‘Input Rate of Pilot 

Burners on Gas Fireplaces’’ (Consultant Report). 

EER Consulting. November 6, 2011. 

NRCAN Web site. NRCAN. ‘‘Personal: 

Residential: Chapter 3—All About Gas Fireplaces’’ 

(URL: http://oee.nrcan.gc.ca/Publications/

infosource/Pub/home/all_about_gas_fireplaces_

chapter3.cfm?text=N&printview=N). 

Pittsburg Gas Grill and Heater Co. Frequently 

Asked Questions. (URL: http:// 

www.pittsburghgasgrill.com/faq.html). 

Leonard’s Stone & Fireplace. Frequently Asked 

Questions. (URL: http:// 

www.leonardsstoneandfireplace.net/faq.html). 

Fireside Hearth & Home. Frequently Asked 

Questions. (URL: http:// 

www.firesidehearthandhome.com/faq.php). 

Heatilator. Common Questions. (URL: http:// 

www.heatilator.com/customerCare/ 

searchFaq.asp?c=Gas). 

Fireplace Professionals. Frequently Asked 

Questions. (URL: http:// 

www.fireplaceprofessionals.com/faqs.htm). 

three months of the year, and only 25 

percent remain on year-round. (NPGA, 

No. 0209 at p. 9) 

For primarily decorative hearth 

products, DOE conducted further review 

in response to the comments, and 

accordingly revised its analysis as 

follows: Namely, that 50 percent of 

consumers keep their pilot lights on for 

three months of the year, 25 percent 

keep them on only when the equipment 

is being used, and 25 percent keep them 

on year-round. The fraction that keeps 

pilot lights on only when the equipment 

is being used is to address the pilot 

operation of propane systems 15 and 

other situations when the user chooses 

to turn off the pilot after each use. 

Regarding the gas log set pilot light 

gas input rate, a number of parties stated 

that DOE’s assumption that gas log pilot 

systems use 1,250 Btu/hr was too high. 

(Rasmussen, No. 0208 at p. 6; RH 

Peterson, No. 0218 at p. 3; SBA, No. 

0096 at p. 6) DOE acknowledges the 

information provided on vented gas log 

pilot systems. However, DOE did not 

include energy savings for vented gas 

log sets in its current analysis, because 

the standing pilot removal requirement 

for this product is not covered under 

today’s rule. For primarily decorative 

hearth products, Intertek commented 

that on average, most pilot lights use 

800 Btu/hr. For primarily decorative 

hearth products, DOE revised its 

analysis based upon the data provided 

by Intertek, which is similar to the data 

reported by manufacturers and 

distributors of hearth products and 

Natural Resources Canada (NRCAN) 

Web sites, as well as an EER Consulting 

report and a GRI study.16

As a result of revising the 

assumptions for primarily decorative 

vented hearth products about the 

number of customers that leave their 

standing pilot light on and the pilot 

light gas input rate, DOE calculated that 

if all manufacturers of vented hearth 

products who could do so availed 

themselves of the exclusion, the 

national energy savings over the 

analysis period would be 0.17 quads for 

primarily decorative vented hearth 

products (not including gas log sets). 

According to DOE’s estimates, 

elimination of standing pilots and other 

continuously-burning ignition sources 

in primarily decorative vented hearth 

products would result in an additional 

0.04 quads of energy savings over the 

30-year period from 2015 through 2044, 

beyond the savings estimated by the 

April 2010 final rule. DOE did not 

include the energy savings for vented 

gas log sets in its revised NES 

calculation, because the standing pilot 

elimination requirement for gas log sets 

has been removed from the exclusion 

for these products in today’s final rule. 

In conclusion, even with modifications 

to DOE’s National Energy Savings 

analysis based upon public comments 

(where substantiated), DOE has 

determined that the amendments in 

today’s final rule would continue to 

provide substantial additional energy 

savings beyond those attributable to the 

April 2010 final rule. 

D. Other Comments 

1. Test Procedures 

In response to the definition of 

‘‘vented hearth heater’’ proposed by 

DOE in the July 2011 NOPR, DOE 

received a number of comments 

regarding the applicability of the DOE 

test procedures for primarily decorative 

hearth products and vented gas log sets. 

HPBA stated that the AFUE 

methodology is inapplicable to 

primarily decorative gas fireplaces and 

cannot even be conducted on gas log 

sets; therefore, there is no applicable 

efficiency test method for these 

products. (HPBA, Public Meeting 

Transcript, No. 14 at pp. 21–22) NPGA 

stated that there is not an applicable test 

procedure to measure the efficiency of 

these products. (NPGA, No. 209 at p. 5) 

Further, NPGA stated that the current 

DOE test procedure cannot be applied to 

vented primarily decorative hearth 

products, because the test procedure 

measures convective heat transfer, 

rather than radiative heat transfer. 

(NPGA, No. 209 at pp. 6–7) SBA and 

AGA made similar comments. (SBA, No. 

96 at p. 4; AGA, No. 217 at pp. 1–2) 

Several interested parties stated that 

there are no test standards to determine 

whether DOE’s interpretation of the 

primarily decorative hearth products 

definition is appropriate, and that 

primarily decorative hearth products are 

different from direct heating equipment 

because they produce heat indirectly by 

their operation. (Form Letter Comments; 

Oahu Gas Service, No. 166 at p. 1; 

Heritage Propane, No 33 at p. 1; 

American Gas Log, No. 146 at p. 1; Penn 

Valley, No. 116 at p. 1; Gresham 

Petroleum, No. 165 at p. 1; HWAM, No. 

43 at p. 1; Slate Spring, No. 92 at p. 1; 

Perfection, No. 115 at p. 1; Hearth and 

Home, Inc., No. 144 at p. 1; American 

Gas Log, No. 49 at p. 1; Sheldon 

Skolnick Associates, No. 118 at p. 1) 

R.H. Peterson commented specifically 

that gas log sets are not able to be tested 

using the standard AFUE test method. 

(R.H. Peterson, Public Meeting 

Transcript, No. 14 at pp. 36–37) 

Similarly, Short’s Stoves commented 

that there is no sure way to test gas log 

sets, because they are installed into 

existing wood-burning fireplace which 

are not uniform. (Short’s Stove, No. 174 

at p. 1) R.H. Peterson commented that: 

(1) No vented gas log sets can or ever 

will be able to meet the 68-percent 

heating efficiency standard; (2) DOE 

knows there is no approved test; and (3) 

the only approved test does not work on 

vented gas logs. (R.H. Peterson, No. 218 

at p. 5) 

Intertek stated that there currently is 

no recognized test method for 

evaluation of the efficiency of gas log 

sets and that it is difficult to adapt the 

test procedure for vented hearth 

products to primarily decorative 

products, because the basic premise of 

the vented hearth product test 

procedure is that the appliance is 

operated to satisfy a heating load. 

(Intertek, No. 198 at pp. 2–3) NPGA 

stated that the efficiency of a product 

can be determined only in reference to 

how efficiently it serves its intended 

purpose, so the DOE test procedure does 

not apply to primarily decorative hearth 

products. (NPGA, No. 209 at p. 4) NPGA 

stated that to measure energy efficiency 

and stack losses, it is critical to have a 

test procedure that can account for the 

high and variable amount of dilution 

air, especially for gas log sets, and 

explained that based on testing by the 

Gas Technology Institute (GTI), the 

amount of CO2 required to account for 

stack losses creates too large an error 


jlentini on DSK4TPTVN1PROD with RULES4
Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71851 

band to produce accurate results. 

(NPGA, No. 209 at p. 7) AGA stated that 

products designed and certified to ANSI 

Z21.50 or ANSI Z21.60 have been 

included, though they have no 

applicable test procedure. Further, AGA 

stated that when the test procedures for 

home heating equipment (not including 

furnaces) were developed, the ANSI 

Z21.50 or ANSI Z21.60 products were 

not considered part of the developed 

test method. (AGA, Public Meeting 

Transcript, No. 14 at pp. 21–22) AGA 

also stated that manufacturers that do 

not comply with ANSI Z21.50 or 

manufacturers who certify to a different 

standard would not be excluded from 

the direct heating equipment standards, 

but would not be able to demonstrate 

compliance under the current test 

procedures. (AGA, No. 217 at p. 2) 

In considering the test procedures for 

vented home heating equipment as they 

apply to hearth products, DOE 

recognizes that the test procedures may 

not be applicable for gas log sets. 

Because DOE is not requiring the vented 

gas log sets to meet the standards for gas 

hearth direct heating equipment and is 

not requiring the products to meet any 

criteria for exclusion, the applicability 

of test procedures for those products is 

no longer relevant. However, as covered 

products, DOE may develop a test 

procedure for vented gas log sets in the 

future. 

In the December 2009 NOPR, DOE 

proposed that its test procedures for 

vented direct heating equipment be 

applied to establish the efficiencies of 

vented gas hearth direct heating 

equipment. 74 FR 65852, 65861 (Dec. 

11, 2009). In the April 2010 final rule, 

DOE noted that it received no comments 

from interested parties raising any 

concern in response to the NOPR about 

the application of the DOE test 

procedures for vented direct heating 

equipment to gas hearth direct heating 

equipment. 75 FR 20112, 20123 (April 

16, 2010). DOE believes, therefore, that 

the test procedures for vented home 

heating equipment are generally 

applicable to gas hearth direct heating 

equipment. DOE believes that heating 

products can be tested using the vented 

home heating equipment test 

procedures, even though the test 

procedure may not be tailored 

specifically to these products. However, 

DOE is considering modifications to the 

direct heating equipment test 

procedures in a test procedure 

rulemaking for heating products (i.e., 

water heaters, direct heating equipment, 

and pool heaters). DOE published a 

request for information in the Federal 

Register on October 12, 2011, which has 

a 45-day comment period that is open 

until November 28, 2011. 76 FR 63211. 

DOE is considering potential changes to 

the test procedure for vented home 

heating equipment that would clarify 

the procedure with respect to hearth 

heating products to reduce ambiguity 

and ensure that it is applied uniformly 

to vented hearth heating products. DOE 

encourages interested parties to 

comment on any test procedure issues 

as a part of that ongoing rulemaking. 

Additionally, DOE notes that if there is 

adequate evidence that a certain subset 

of products exists that have 

characteristics that prevent them from 

being tested according to the prescribed 

test procedures, manufacturers have the 

option of submitting a petition of waiver 

in accordance with 10 CFR 430.27. 

2. DOE Analysis and Public Meeting 

Conduct 

DOE received comments generally 

about the September 1, 2011 public 

meeting and its analysis for the July 

2011 NOPR. HPBA stated that public 

meeting was not conducted in 

accordance with law, because DOE did 

not provide any substantive response to 

questions from interested parties. 

(HPBA, No. 201 at p. 6) Similarly, R.H. 

Peterson stated that DOE offered only 

non-responsive answers during the 

public meeting. (R.H. Peterson, No. 218 

at p. 10) NPGA stated that DOE violated 

EPCA by refusing to participate in 

questioning at the public meeting and 

by not providing adequate information 

upon which to comment. (NPGA, No. 

209 at pp. 5–6) Further, NPGA asserted 

that DOE is imposing a performance and 

design standard in the current 

rulemaking and has not undergone the 

appropriate rulemaking process by not 

fully considering the standards’ 

technological feasibility and economic 

justification. (NPGA, No. 209 at pp. 5– 

6) NPGA stated that because the 

underlying final rule was in error, the 

July 2011 NOPR proposing to amend the 

April 2010 final rule, is also in error. 

(NPGA, Public Meeting Transcript, No. 

14 at p. 31) In addition, HPBA stated 

that DOE has not submitted relevant 

data, documentation, or research to 

explain, support, or clarify the NOPR, 

and that these materials must be made 

publicly available in advance of the 

comment period. (HPBA, No. 128 at p. 

1) HPBA also stated that DOE failed to 

fulfill its obligation to consider other 

less-costly alternatives to the 

prohibition of standing pilot lights, and 

asserted that simply providing 

information for the public to make 

informed energy conservation decisions 

would achieve equal or greater energy 

conservation benefits. (HPBA, Public 

Meeting Transcript, No. 14 at pp. 23–24) 

HPBA stated that there is a disconnect 

in this proposal, because DOE did not 

look at whether applying heating 

standards to primarily decorative 

products was technologically feasible or 

economically justified when the original 

standards were put in place. (HPBA, 

Public Meeting Transcript, No. 14 at p. 

112) Further, HPBA stated that the 

heating efficiency standards are not 

technologically feasible for gas log sets 

and many primarily decorative gas 

fireplaces. (HPBA, Public Meeting 

Transcript No. 14 at p. 22) R.H. Peterson 

stated that it would be impossible for 

them to redesign and certify their 

products that would need to be 

recertified with the new pilot light 

restriction. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at p. 56) 

In response, DOE notes that an 

extremely detailed analysis was done by 

DOE in promulgation of the April 2010 

final rule. Because the NOPR proposals 

were definitional changes only to that 

fully analyzed rule and given the 

temporal proximity of the two 

rulemakings, DOE was able to rely on 

that prior analysis and to analyze the 

incremental changes that were being 

proposed in the July 2011 NOPR. 

Further, in this rulemaking proceeding, 

DOE is not imposing any mandatory 

burdens on manufacturers. Rather, in 

this rulemaking, DOE is providing 

manufacturers of primarily decorative 

hearth products with an alternative to 

meeting the standards promulgated by 

the April 2010 final rule for gas hearth 

direct heating equipment. Regarding 

conduct at the public meeting, DOE 

notes that the primary purpose of the 

meeting was to facilitate stakeholder 

involvement and allow an opportunity 

for feedback on the positions presented 

by DOE in the July 2011 NOPR. DOE 

respectfully listened to the statements 

and opinions voiced by the participants 

at the public meeting. In fact, much of 

the comment related to gas log sets 

received by DOE at the public meeting 

was extremely helpful in leading DOE to 

withdraw in this final rule the proposed 

exclusion criteria for that product and to 

exclude at this time all gas log sets from 

the gas hearth direct heating equipment 

energy conservation standards. 

3. Impacts of Proposed Definition 

a. Consumer Choice 

Several interested parties stated that 

the proposed definition would impact 

consumer choice. In particular, these 

interested parties stated that the 

proposed definition would force them to 

change the products they sell and 

distribute, which would impose a 

burden on consumer choice. (Perfection, 


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No. 115 at p. 1; Sheldon Skolnick 

Associates, No. 118 at p. 1; Hearth and 

Home, Inc., No. 144 at p. 1; American 

Gas Log, No. 49 at p. 1; Modern Gas, No. 

213 at p. 1) Rasmussen stated that the 

new standard would limit consumer 

choice and drastically increase prices 

for gas log sets. (Rasmussen, Public 

Meeting Transcript, No. 14 at p. 84) R.H. 

Peterson stated that the standard would 

limit consumer alternatives and deprive 

consumers of gas log sets which are 

more efficient than existing woodburning fireplaces. (R.H. Peterson, 

Public Meeting Transcript, No. 14 at p. 

37) AGA voiced concern over the 

replacement market and what the 

product availability would be if the July 

2011 NOPR proposal went into effect. 

(AGA, Public Meeting Transcript, No. 

14 at p. 86) 

Several interested parties stated that 

this rulemaking is compounding 

problems caused by the April 2010 final 

rule, which defined all hearth products 

with input over 9,000 BTUs as direct 

heating equipment. (Thompson Gas, No. 

95 at p. 1; Short’s Stoves, No. 174 at p. 

1; Hearth and Home, Inc., No. 144 at p. 

1; Sheldon Skolnick Associates, No. 118 

at p. 1; New Jersey Propane Gas 

Association, No. 212 at p. 1; Form Letter 

Comments; Penn Valley, No. 116 at p. 

1; HWAM, No. 43 at p. 1; Perfection, No. 

115 at p. 1) 

In contrast to the views expressed by 

the stakeholders in the preceding 

paragraph, DOE believes that the 

amended definition will increase 

consumer choice and product 

availability by better defining those 

vented hearth products that are 

primarily intended for heating purposes 

and those that are primarily intended 

for decorative purposes. Additionally, 

DOE notes that this rule eliminates the 

previous exclusion criteria of having an 

input capacity at or below 9,000 Btu/h. 

DOE believes that many of the 

comments made in reference to 

consumer choice related to the 

elimination of match lit gas log sets that 

would have occurred under the July 

2011 proposal. Because this final rule 

does not adopt exclusion criteria for 

vented gas log sets and excludes them 

from energy conservation standards for 

gas hearth direct heating equipment, the 

concern about limiting consumer choice 

with respect to gas log sets is no longer 

an issue. 

b. Energy Savings 

Several interested parties expressed 

their belief that this rulemaking would 

save little to no energy. (Heritage 

Propane, No. 33 at p. 1; Nevada Propane 

Dealers Association, No. 30 at p. 1; 

Barbara Jenkins; No. 22 at p. 1; HWAM, 

No. 43 at p. 1; LF Pugh and Associates, 

No. 76 at p. 1) Other interested parties 

elaborated that the amendments 

proposed in the July 2011 NOPR would 

cause consumers to use heating 

products for decorative effects, resulting 

in an overall increase in energy use. 

(Perfection, No. 115 at p. 1; Hearth and 

Home, Inc., No. 144 at p. 1; Form Letter 

Comments; Sheldon Skolnick 

Associates, No. 118 at p. 1) Thomas 

McGinnis of AmeriGas commented that 

he believes the rulemaking will not save 

energy because direct heating 

equipment produces more heat, which 

they believe will cause consumers to 

turn on air conditioning equipment, run 

fans, or open windows to get rid of 

unwanted heat. (Thomas McGinnis 

(AmeriGas), No. 26 at p. 1) Empire 

Comfort Systems stated that vented 

hearth products is the smallest energy 

user of all products targeted for 

regulation. (Empire, Public Meeting 

Transcript, No. 14 at p. 62) Similarly, 

Independence Marketing remarked that 

primarily decorative fireplaces consume 

0.005 percent of the nearly 25,000 

trillion BTUs of annual U.S. gas 

consumption, and of that, pilot lights 

consume 0.00165 percent. 

(Independence Marketing Ltd, No. 214 

at p. 1) 

As noted above in section III.C, DOE 

calculated the energy savings that 

would result from switching from 

standing pilot lights to other noncontinuously-burning ignition sources 

for primarily decorative hearth 

products. Based upon the analysis 

described in section III.C, DOE found 

that this change would result in 0.17 

quads of energy savings over the 

analysis period. DOE believes these 

potential energy savings are significant, 

despite the commenters’ anecdotal 

statements to the contrary. 

c. Environmental Impacts 

Several interested parties stated that 

the proposed regulations in the July 

2011 NOPR would promote the use of 

wood-burning fireplaces for decorative 

purpose. (Form Letter Comments; 

Fairview, No. 25 at p. 1; New Jersey 

Propane Gas Association, No. 212 at p. 

1; Perfection, No. 115 at p. 1; Oahu Gas 

Service, No. 166 at p. 1; Penn Valley, 

No. 116 at p. 1; Siouxland, No. 85 at p. 

1; Hearth and Home, Inc., No. 144 at p. 

1; Sheldon Skolnick Associates, No. 118 

at p. 1; Gas-fired products, No. 155 at p. 

1) Other interested parties stated that 

the proposed regulation would promote 

use of wood-burning fireplaces, and that 

this would have a negative 

environmental impact because gas 

hearth products burn cleaner than 

wood-burning appliances. (Rasmussen, 

No. 208 at p. 13; R.H. Peterson, Public 

Meeting Transcript, No. 14 at p. 43; 

Jack’s Butane Service, No. 23 at p. 1; Big 

Woods, No. 3 at p. 1; San Bernardino 

Fireplace and Woodstove, No. 11 at p. 

2; Arizona Gas, No. 98 at p. 2m). 

Further, R.H. Peterson noted that a 

number of entities, including the NRDC 

and American Lung Association, 

support the transition from woodburning fireplaces to gas log sets and 

that there is a program in Los Angeles 

that encourages and pays consumers to 

switch to gas log sets. (R.H. Peterson, 

Public Meeting Transcript, No. 14 at 

p. 42) 

In response, DOE notes that definition 

adopted in this final rule would exclude 

vented gas log sets from having to 

comply with gas hearth direct heating 

equipment standards, without requiring 

that they meet any criteria for exclusion. 

Therefore, consumers would not be 

discouraged from replacing their woodburning fireplaces with a gas log set as 

a result of this rule. DOE believes, 

therefore, that this rulemaking will not 

promote wood burning fireplaces and 

there will be no negative environmental 

impacts. 

d. Impacts on Manufacturers 

(i) Employment Impacts 

DOE received a number of comments 

stating that the hearth industry and 

employment would be negatively 

impacted by the proposals in the July 

2011 NOPR. Empire Comfort Systems 

commented that DOE is not considering 

the economic condition of the hearth 

industry, which is a stressed industry 

directly affected by the housing market 

downturn, and that these regulations 

will likely promote more job losses for 

a minor energy savings. (Empire, Public 

Meeting Transcript, No. 14 at pp. 63–64) 

Several other interested parties 

commented that the proposed 

regulations would have a significant 

negative impact on the hearth industry 

and would eliminate jobs. (Firelight, No. 

206 at p. 1; Homefires, No. 10 at p. 1; 

Top Hat, No. 168 at p. 1; NPGA, No. 209 

at p. 2; Sheldon Skolnick Associates, 

No. 118 at p. 1; H&S Oil, No. 125 at p. 

1; East Texas Brick Co., No. 135 at p. 1; 

Nevada Propane Dealers Association, 

No. 30 at p. 1; Percy Guidry Hearth and 

Patio, No. 18 at p.4; Big Woods, No. 3 

at p. 1; Mazzeo, No. 16 at p. 1; 

Independence Marketing Ltd, No. 214 at 

p. 2) APGA commented that natural gas 

distributors would be adversely 

impacted by this rulemaking as well. 

(AGPGA, No. 223 at p. 1) 

Numerous interested parties stated 

that the impact of the proposed 

standards on small business 


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manufacturers, distributors, and 

marketers would be significant, because 

the industry cannot meet the 

requirements and products would be too 

expensive to be viable in the 

marketplace. (Penn Valley, No. 116 at p. 

2; Perfection, No. 115 at p. 2; American 

Gas Log, No. 49 at p. 2; Hearth and 

Home, Inc., No. 209 at p. 2; Sheldon 

Skolnick Associates, No. 118 at p. 1; 

Slate Spring, No. 92 at p. 1; Short’s 

Stoves, No. 174 at p. 1) Other interested 

parties stated that the rulemaking would 

place an unnecessary and onerous 

burden on their company. (American 

Gas Log, No. 49 at p. 1; Sheldon 

Skolnick Associates, No. 118 at p. 1; 

Perfection, No. 115 at p. 1; Hearth and 

Home, Inc., No. 144 at p. 1; Form Letter 

Comments; Thompson Gas, No. 191 at 

p. 1; Oahu Gas Service, No. 166 at p. 1) 

DOE disagrees with these comments 

and believes that today’s final rule will 

have positive employment benefits, 

because the exclusion criteria being 

adopted in today’s notice, as compared 

to the criteria in the April 2010 final 

rule, will reduce manufacturer burden, 

and that the exclusion criteria adopted 

in today’s rule are less likely than the 

original exclusion criteria to cause job 

losses in the hearth industry. 

Furthermore, DOE believes that the 

impacts of today’s rule are mitigated 

because DOE is not adopting exclusion 

requirements or an energy conservation 

standard for gas log sets in today’s rule. 

It is important to remember that this 

final rule merely provides 

manufacturers with a choice in terms of 

either complying with the energy 

conservation standards or availing 

themselves of the exclusion from those 

standards. 

(ii) Small Business Impacts 

DOE received several comments 

relating to how small businesses 

producing vented hearth products and 

gas log sets would be impacted. 

Multiple interested parties stated that a 

significant price increase associated 

with the proposed requirements would 

have a negative impact on small 

business entities. (R.H. Peterson, Public 

Meeting Transcript, No. 14 at p. 55; 

Form Letter Comments; Advantage, No. 

13 at p. 1; Independence Marketing Ltd, 

No. 214 at p. 1; Creekside Hearth & 

Patio, No. 21 at p. 1; Sundance Leisure, 

No. 17 at p. 4; Crik-IT, No. 15 at p. 3;) 

In contrast, NRDC commented that the 

impact on small businesses is not 

significant enough to sacrifice the 

anticipated energy savings. (NRDC, No. 

216 at p. 3) 

In response, DOE believes that this 

final rule lessens the impacts as 

compared to the proposed standard and 

to the April 2010 final rule. For today’s 

rule, DOE is not adopting exclusion 

requirements or minimum energy 

efficiency standards for gas log set 

manufacturers, thereby eliminating all 

burden related to those products. 

Additionally, DOE believes this rule 

reduces the burden on small 

manufacturers of primarily decorative 

hearth products when considered in 

comparison to meeting the April 2010 

energy conservation standards. DOE 

acknowledges that the exclusion criteria 

would still have impacts on small 

business manufacturers of primarily 

decorative hearth products. DOE 

estimates industry conversion costs 

totaling $90,000 to $1.8 million for the 

four exclusion criteria. The full analysis 

of the number of small businesses and 

of the impacts on small businesses can 

be found in section IV.B. 

SBA stated that DOE significantly 

underestimated the number of small 

businesses producing gas log sets and, 

consequently, the cost to the industry of 

complying with the rule. SBA estimated 

that there are between twenty and fifty 

manufacturers of primarily decorative 

gas fireplaces and/or gas log sets, almost 

all of which are small businesses. (SBA, 

No. 96 at p. 4) HPBA stated that the 

NOPR estimate of 14 small businesses 

(for both vented hearth and gas log set 

products) being impacted is low by a 

wide margin, and does not take into 

account distributors and retailers who 

are small businesses. (HPBA, No. 201 at 

p. 24) 

For gas lost set products, public 

comments helped make DOE aware that 

it had not identified all of the relevant 

small manufacturers at the NOPR stage. 

However, for the final rule, DOE is not 

adopting exclusion requirements or 

minimum energy efficiency standards 

for gas log set manufacturers, thereby 

eliminating all burden related to those 

products. For vented hearth products 

that are subject to the exclusion criteria, 

DOE conducted an additional round of 

investigation to identify small 

manufacturers of primarily decorative 

hearths. Consistent with SBA’s finding, 

DOE identified thirty-six manufacturers 

of decorative hearth products (excluding 

gas log set manufactures). However, out 

of these thirty-six companies, only ten 

qualified as small domestic 

manufacturers of products covered by 

this rule. DOE believes this rule reduces 

the burden on these small 

manufacturers of primarily decorative 

hearth products by providing the 

exclusion criteria as an alternative to 

meeting energy conservation standards. 

(iii) Cost of Compliance 

DOE received several comments 

regarding the cost to comply with the 

exclusion criteria. American Gas Log 

stated that the dollar estimate for 

testing, redesigning, and recertifying 

their gas log set product lines would be 

in excess of $350,000. (American Gas 

Log, No. 146 at p. 2) Rasmussen 

commented that the conversion costs 

would be extremely high and could 

force them to leave the gas log set 

business. (Rasmussen, No. 208 at p. 11) 

HPBA stated that DOE’s assumption that 

there would be no regulatory burdens 

associated with certification is not 

correct, because there are significant 

numbers of vented hearth products and 

vented gas log sets that are not certified 

to ANSI Z21.50 and Z21.60. 

Furthermore, HPBA stated that a 

number of gas log sets cannot be 

certified to ANSI Z21.60. (HPBA, Public 

Meeting Transcript, No. 14 at pp. 24–25) 

HPBA also stated that the NOPR 

mischaracterizes the impacts the rule 

would have by assuming no regulatory 

burdens associated with the certification 

of primarily decorative products (most 

are not certified or cannot be), and that 

there will be no burdens associated with 

modifying product labeling and 

literature. Further, HPBA stated that the 

elimination of standing pilot lights 

would require redesign work, and 

would affect pricing. (HPBA, No. 201 at 

p. 24) Plumbing-Heating-Cooling 

Contractors Association commented that 

DOE estimated an average of $9,000 per 

unit for modifying and recertifying 

primarily decorative hearth products, 

which PHCC considers too low. (PHCC, 

No. 199 at p. 1) NPGA stated that 

research and development would be a 

huge financial burden to manufacturers 

which DOE has underestimated. NPGA 

stated that certification would cost 

between $1,500 and $2,000 per model. 

(NPGA, No. 209 at p. 10) Similarly, 

Empire stated that the proposed 

amendments would cause expenditures 

in research and development, 

engineering, marketing, and inventory. 

(Empire, No. 2 at p. 2) 

Incorporating feedback from gas log 

set manufacturers, this final rule does 

not set exclusion criteria or energy 

conservation standards for gas log set 

manufacturers, thereby reducing burden 

on the industry. DOE presents an 

analysis of the costs of compliance for 

small business manufacturers of 

primarily decorative hearths in section 

IV.B of this notice. While PHCC states 

that DOE’s conversion costs are too low, 

the trade association does not provide or 

justify revised estimates. Alternatively, 

NPGA recommended a certification cost 


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that is below DOE’s estimate. However, 

based on interviews with gas hearth 

heater manufacturers during the April 

2010 rulemaking, DOE believes its 

original estimates of compliance costs 

for hearth products are correct. 

4. Procedural Requirements 

NPGA stated that this rulemaking 

does not comply with Executive Order 

12988, ‘‘Civil Justice Reform,’’ because 

key terms are not adequately defined 

and the April 2010 rule and this 

rulemaking have not minimized 

litigation, as required by the Executive 

Order. (NPGA, No. 209 at p. 11) NPGA 

also commented that DOE violated 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review,’’ 

because the energy savings for both 

vented hearth products and vented gas 

log sets were erroneously skewed. 

(NPGA, No. 209 at p. 5) HPBA 

commented that the NOPR was issued 

without adequate basis, in violation of 

Executive Order 13563, because it did 

not provide a reasoned determination 

that the benefits justify its costs. (HPBA, 

No. 201 at p. 2) NPGA also stated that 

this rulemaking did not meet the 

requirements of the Administrative 

Procedure Act, because the April 2010 

final rule promulgated a definition that 

was not included in the December 2009 

NOPR and the public did not have an 

opportunity to comment on that 

definition. (NPGA, Public Meeting 

Transcript, No. 14 at p. 31) 

Congressman Mike Rogers remarked 

that DOE did not request comments on 

regulatory requirements for decorative 

vented gas fireplaces in the December 

2009 NOPR and that this rulemaking 

runs counter to President Obama’s 

Executive Order aimed at improving 

agency rulemakings. (Mike Rogers, No. 

225 at p. 1) 

SBA stated that DOE must use the 

statutorily-prescribed process for 

imposing an energy efficiency standard 

upon manufacturers of vented gas log 

sets and cannot redefine ‘‘vented hearth 

heater’’ to cover vented gas log sets, 

thereby circumventing the required 

procedure for establishing a standard. 

(SBA, No. 96 at p. 3) 

In response, DOE first notes that in 

response to comments DOE is not 

requiring gas log sets to meet the 

standards for gas hearth direct heating 

equipment, or to meet any criteria for 

exclusion from the standards at this 

time. Regarding primarily-decorative 

hearth products, DOE notes that these 

products were explicitly considered in 

the April 2010 final rule. The April 

2010 final rule was preceded by the 

December 2009 NOPR (74 FR 65852 

(Dec. 11, 2009)) which allowed for 

public comment on the proposed 

standards and definitions related to 

vented hearth products. The issue of an 

exclusion for decorative products and 

how to differentiate between products 

that are heaters and products that are 

primarily decorative was raised in 

comments at the NOPR public meeting 

(Public Meeting Transcript for Heating 

Products NOPR Public Meeting held on 

January 7, 2010, No. EERE–2006–STD– 

0129–0089 at pp. 48–52), so DOE’s 

definitional changes at the time of the 

final rule were a logical outgrowth of 

public comments. As discussed in 

sections IV.A and IV.F, DOE believes 

this final rule satisfies the requirements 

of Executive Order 13563 and 12988, 

respectively. 

5. Product Characteristics 

R.H. Peterson argued that DOE 

incorrectly assumed that gas logs have 

similar characteristics to primarily 

decorative fireplaces, and instead, the 

commenter stated that gas log sets can 

only be used in wood-burning fireplaces 

and have different characteristics than 

primarily decorative gas fireplaces. 

(R.H. Peterson, Public Meeting 

Transcript, No. 14 at p. 38) Rasmussen 

stated that DOE had previously 

recognized that there is a difference 

between gas log sets and other gas 

hearth products, that there is a 

difference in construction between the 

two types of products, and that the two 

types of products have different heating 

capabilities. Rasmussen elaborated that 

fireplaces are designed as a completed 

system where removing the logs would 

compromise safety, but vented gas log 

sets in wood-burning fireplaces can be 

changed out. (Rasmussen, Public 

Meeting Transcript, No. 14 at p. 71) 

As noted in the Frequently Asked 

Questions: ‘Vented Hearth Heater’ 

Definition that was published on DOE’s 

Web site after the April 2010 final rule, 

DOE agrees that there are differences 

between gas log sets and primarily 

decorative hearth products, both in 

construction and heating ability. Given 

those constructional and operational 

differences of the products, DOE is not 

requiring at this time that vented gas log 

sets meet any criteria to be exempt from 

the standards for gas hearth direct 

heating equipment that were 

promulgated in the April 2010 final 

rule, while DOE is establishing criteria 

for primarily decorative hearth products 

to meet to qualify to be excluded from 

the direct heating equipment energy 

conservation standards. However, DOE 

also notes that there are basic 

similarities, in that both units are 

inserted in the living space and provide 

heat. Therefore, as explained 

previously, DOE believes both types of 

products are properly classified as 

direct heating equipment. 

6. Requests To Delay or Discontinue 

Rulemaking 

DOE received a number of comments 

requesting that DOE reconsider or 

withdraw this rulemaking, and abandon 

regulating primarily decorative hearth 

products. (Empire, Public Meeting 

Transcript, No. 14 at p. 64; Hearth and 

Home, Inc., No. 144 at pp. 1–2; Hearth 

and Home Shoppe, No. 207 at p. 2; 

Sheldon Skolnick Associates, No. 118 at 

p. 1; Gas-fired Products, No. 155 at p. 

1; Short’s Stoves, No. 174 at p. 1; Penn 

Valley, No. 116 at p. 3; APGA, No. 223 

at p. 1; NPGA, No. 209 at pp. 2 and 12; 

Thompson Gas, No. 95 at p. 1; Gresham 

Petroleum, No. 165 at p. 1; L.E. Klein, 

No. 162 at p. 1; New Jersey Propane Gas 

Association, No. 212 at p. 1; Rasmussen, 

No. 208 at p. 13; Jack’s Butane Service, 

No. 23 at p. 1; Perfection, No. 115 at pp. 

1–2; Modern Gas, No. 213 at p. 1; 

Fairview, No. 25 at p. 1; Form Letter 

Comments; Nevada Propane Dealers 

Association, No. 30 at p. 1; American 

Gas Log, No. 49 at p. 1; Siouxland, No. 

85 at p. 1; Thompson; LF Pugh and 

Associates, No. 76 at p. 1; Slate Spring, 

No. 92 at p. 1; Heritage Propane, No. 33 

at p. 1; Hearth & Home Technologies, 

No. 204 at p. 3; H&S Oil, No. 125 at p. 

1; Arizona Gas, No. 98 at p. 1; HWAM, 

No. 43 at p. 1; Fred Pierce, No. 219 at 

p. 2; Mike Rogers (U.S. Congressman), 

No. 225 at p. 1) 

Several interested parties urged DOE 

to request that Congress enact a 

corrective statutory definition that states 

that primarily decorative vented gas 

fireplaces and gas log sets are not direct 

heating equipment. (Hearth and Home, 

Inc., No. 144 at p. 2; Sheldon Skolnick 

Associates, No. 118 at p. 1; Russo, No. 

56 at p. 1) Congressman Mike Rogers 

requested that DOE issue a stay of the 

effective date of the April 2010 Final 

Rule as related to primarily decorative 

hearth products until Congress can 

enact legislation to clarify the 

definitional distinction between 

primarily decorative vented gas 

fireplaces and gas log sets. (Mike Rogers, 

No. 225 at p. 2) 

In response, DOE believes that the 

exclusion criteria included in the April 

2010 final rule have several limitations, 

which will be improved through the 

rulemaking process. The HPBA (a major 

trade association for hearth 

manufacturers) and several 

manufacturers expressed concerns about 

being able to meet the exclusion criteria 

in the April 2010 final rule and still 

produce products that consumers will 

want to buy. Additionally, as noted 


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previously, the limit on input capacity 

could have allowed certain heating 

hearth products to qualify for the 

primarily decorative exclusion. For 

these reasons, DOE believes that, while 

ensuring energy conservation, it should 

assist both industry and consumers with 

a clear, objective set of criteria to 

distinguish those vented hearth heaters 

that are primarily intended as heaters 

and all agree should be subject to energy 

conservation standards from those 

vented hearth heaters that are primarily 

intended for decorative purposes. 

Accordingly, DOE is issuing today’s 

final rule amending the definition of 

‘‘vented hearth heater.’’ 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Orders 

12866 and 13563 

Today’s regulatory action has been 

determined to not be a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866. Accordingly, 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget (OMB) is not 

required to review this rule. 

DOE has also reviewed this regulation 

pursuant to Executive Order 13563, 

issued on January 18, 2011 (76 FR 3281 

(Jan. 21, 2011)). Executive Order 13563 

is supplemental to and explicitly 

reaffirms the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

To the extent permitted by law, agencies 

are required by Executive Order 13563 

to: (1) Propose or adopt a regulation 

only upon a reasoned determination 

that its benefits justify its costs 

(recognizing that some benefits and 

costs are difficult to quantify); (2) tailor 

regulations to impose the least burden 

on society, consistent with obtaining 

regulatory objectives, taking into 

account, among other things, and to the 

extent practicable, the costs of 

cumulative regulations; (3) select, in 

choosing among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. 

DOE emphasizes as well that 

Executive Order 13563 requires agencies 

to use the best available techniques to 

quantify anticipated present and future 

benefits and costs as accurately as 

possible. In its guidance, the Office of 

Information and Regulatory Affairs has 

emphasized that such techniques may 

include identifying changing future 

compliance costs that might result from 

technological innovation or anticipated 

behavioral changes. For the reasons 

stated in the preamble, DOE believes 

that today’s final rule is consistent with 

these principles, including the 

requirement that, to the extent 

permitted by law, agencies adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs, and in choosing among alternative 

regulatory approaches, those approaches 

maximize net benefits. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of a final regulatory flexibility analysis 

(FRFA) for any rule that by law must be 

proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

Executive Order 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s Web site (http:// 

www.gc.doe.gov). 

DOE reviewed the impacts of the 

proposed amendments in today’s final 

rule under the provisions of the 

Regulatory Flexibility Act and the 

procedures and policies discussed 

above. As a result of this review, DOE 

has prepared a FRFA for vented hearth 

products, a copy of which DOE will 

transmit to the Chief Counsel for 

Advocacy of the SBA for review under 

5 U.S.C. 605(b). As presented and 

discussed below, the FFRA describes 

potential impacts on small 

manufacturers of vented hearth 

products associated with the required 

capital and product conversion costs 

from the proposed amended definition 

for ‘‘vented hearth heater,’’ which 

would change the scope of the exclusion 

from the applicable energy conservation 

standard. 

1. Statement of the Need for, and 

Objectives of, the Rule 

The reasons why DOE is amending 

the definition of ‘‘vented hearth heater’’ 

in today’s final rule and the objectives 

of this and other related amendments 

are provided elsewhere in the preamble 

and not repeated here. 

2. Description and Estimated Number of 

Small Entities Regulated 

For manufacturers of direct heating 

equipment, the Small Business 

Administration (SBA) has set a size 

threshold, which defines those entities 

classified as ‘‘small businesses’’ for the 

purposes of the statute. DOE used the 

SBA’s small business size standards to 

determine whether any small entities 

would be subject to the requirements of 

the rule. 65 FR 30836, 30848 (May 15, 

2000), as amended at 65 FR 53533, 

53544 (Sept. 5, 2000) and codified at 13 

CFR part 121. The size standards are 

listed by North American Industry 

Classification System (NAICS) code and 

industry description, which are 

available at: http://www.sba.gov/sites/ 

default/files/Size_Standards_Table.pdf. 

Direct heating equipment manufacturing 

is classified under NAICS 333414, 

‘‘Heating Equipment (except Warm Air 

Furnaces) Manufacturing.’’ The SBA 

sets a threshold of 500 employees or less 

for an entity to be considered as a small 

business for this category. 

In preparation for the April 2010 final 

rule, DOE conducted a market survey 

using available public information to 

identify potential small manufacturers 

of the type of products that are the 

subject of this rulemaking. DOE asked 

stakeholders and industry 

representatives if they were aware of 

any small manufacturers during 

manufacturer interviews and at previous 

DOE public meetings. DOE reviewed 

publicly-available data and contacted 

various companies, as necessary, to 

determine whether they met the SBA’s 

definition of a small business 

manufacturer of covered residential 

direct heating equipment. DOE screened 

out companies that did not offer 

products covered by this rulemaking, 

did not meet the definition of a ‘‘small 

business,’’ or are foreign owned and 

operated. Additionally, DOE conducted 

a second round of research based on the 

HPBA membership directory, AHRI 

product databases, SBA databases, and 

individual company Web sites to find 

potential small business manufacturers 

for this rulemaking. In total, DOE 

identified 36 companies that 

manufactured hearth products (e.g., 


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fireplaces and/or fireplace inserts). Of 

those 36 companies, 26 manufactured 

gas vented hearth products that are 

covered by this rulemaking. Of those 26 

companies, five were large 

manufacturers. Of the 21 small 

businesses, 11 were foreign owned and 

operated and 10 were domestically 

owned and operated. Therefore, DOE 

identified 10 small domestic 

manufacturers of vented gas hearth 

products that are subject to the energy 

conservation standard. 

Before issuing the NOPR that lead to 

the April 2010 final rule, DOE 

attempted to contact the small business 

manufacturers of vented hearth 

products. One of the small businesses 

consented to being interviewed during 

the MIA interviews, and DOE received 

feedback from an additional two small 

businesses through survey responses. 

DOE also obtained information about 

small business impacts while 

interviewing manufacturers that exceed 

the small business size threshold of 500 

employees in this industry. 

3. Description and Estimate of 

Compliance Requirements 

For the April 2010 final rule, DOE 

calculated the anticipated capital and 

product development costs for vented 

hearth heaters by estimating per-line 

cost and average number of product 

lines for a typical small business 

manufacturer. DOE used certification 

databases, product catalogs, interviews 

with manufacturers, and sources of 

public information to estimate the 

impacts of the rule on small business 

manufacturers. In the final rule, DOE 

concluded that because a typical 

manufacturer of vented hearth products 

already offers multiple product lines 

that meet and exceed the required 

efficiencies and because most product 

lines that did not meet the proposed 

standard could be upgraded with 

relatively minor changes, 

manufacturers, including the small 

business manufacturers, would be able 

to maintain a viable number of product 

offerings. 75 FR 20112, 20231 (April 16, 

2010). 

In order to comply with the energy 

conservation standards promulgated in 

the April 2010 final rule, manufacturers 

of primarily decorative hearth products 

with efficiencies lower than the 

minimum allowable standard would 

need to either: (1) Redesign their 

products to meet the required standard 

level for gas hearth direct heating 

equipment; (2) redesign their products 

to ensure that input ratings are below 

9,000 Btu/h; or (3) discontinue 

manufacturing those products. In the 

April 2010 final rule, DOE assumed 

manufacturers would redesign their 

products with input rating below 9,000 

Btu/h with relatively minor changes to 

existing primarily decorative products. 

75 FR 20112, 20129 (April 16, 2010). 

Under the amended definition of 

‘‘vented hearth heater’’ in this notice, 

the 9,000 Btu/h limitation would no 

longer apply for purposes of exclusion 

from the energy conservation standard. 

Instead, vented hearth products 

(regardless of input rating) would not be 

subject to the minimum standard for 

vented hearth heaters if they comply 

with the four criteria outlined above 

(i.e., (1) certified to ANSI Standard 

Z21.50, but not to ANSI Standard 

Z21.88); (2) sold without a thermostat 

and with a warranty provision expressly 

voiding all manufacturer warranties in 

the event the product is used with a 

thermostat; (3) expressly and 

conspicuously identified on its rating 

plate and in all manufacturer’s 

advertising and product literature as a 

‘‘Decorative Product: Not For Use As A 

Heating Appliance’’; and (4) with 

respect to products sold after January 1, 

2015, not equipped with a standing 

pilot light or other continuouslyburning ignition source). Under the 

April 2010 final rule, vented gas log sets 

were not addressed. However, today’s 

final rule explicitly provides that vented 

gas log sets are not subject to the energy 

conservation standard at this time. 

Each of the exclusion criteria for 

primarily decorative gas hearth products 

would have impacts on small business 

manufacturers. The first criterion (that 

the product must be certified to ANSI 

Standard Z21.50, but not ANSI Standard 

Z21.88 for decorative hearth products) 

would likely impose minimal new 

conversion costs on small businesses, 

but has the potential to impose costs up 

to $1.7 million. According to industry 

representatives, products that are 

primarily decorative in nature are 

generally certified to ANSI Standard 

Z21.50 (vented hearth products) while 

products that are heaters by nature are 

generally certified to ANSI Standard 

Z21.88 by manufacturers. Products that 

are certified to the appropriate ANSI 

standard today will not incur additional 

product conversion costs. However, for 

some hearth heating product lines, 

manufacturers may choose to eliminate 

optional thermostat features and certify 

to ANSI Z21.50 rather than meet the 

energy conservation standard for hearth 

heaters, which would require them to 

recertify products if they are currently 

certified to ANSI Z21.88. Under this 

scenario, the exclusion criteria could 

lead to product conversion costs. Based 

on publicly-available product 

information from the 10 small domestic 

manufacturers, DOE identified 189 

vented hearth product lines certified to 

ANSI Z21.88. While manufacturers are 

not likely to recertify all these products 

to ANSI Z21.50, the total ANSI 

recertification cost of all 189 product 

lines provides an upper bound on the 

product conversion costs. This upper 

bound for this first exclusion criterion is 

estimated to total $1.7 million. DOE 

expects the actual conversion cost to be 

lower than this figure. 

Regarding the second criterion that 

eliminates the option for manufacturers 

to offer a thermostat with any primarily 

decorative hearths, DOE does not 

believe that this would impose any 

capital conversion costs because 

thermostats are optional features on 

primarily decorative products. Thus, 

their removal would not require 

redesign of existing manufacturing 

lines. 

The third criteria would require 

manufacturers to clearly identify the 

decorative nature of the vented hearth 

product, as well as further detail the 

warranty provisions of the hearth 

product. These provisions would 

require an update of the product and 

marketing literature and product 

labeling, which DOE believes would 

result in added product conversion 

costs. However, DOE notes that product 

conversion costs to update manufacturer 

literature and labels are also required 

under the definition and standards for 

gas hearth direct heating equipment 

(i.e., vented hearth heaters) set forth by 

the April 2010 final rule, due to the 

requirements for making representations 

of the AFUE as well as certifying 

compliance to the Department. Under 

the April 2010 final rule, all of the 

product and marketing materials would 

have to have been revised to reflect the 

test AFUE. Because the compliance date 

for the standards promulgated in the 

April 2010 final rule is April 2013, DOE 

believes that manufacturers have likely 

not already updated product literature 

in preparation for compliance with 

those standards. Consequently, DOE 

estimated that all manufacturers, 

including small businesses, would incur 

product conversion costs for new labels 

and literature under the 2010 final rule. 

DOE believes the third criteria would 

result in similar updates to product 

specifications, marketing materials, and 

products labels to make clear the 

intended use of primarily decorative 

hearths. This would not impose a 

product conversion cost beyond the cost 

associated with the April 2010 final 

rule. Thus, DOE concludes the labeling 

requirement would have a minimal 


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impact additional on manufacturers, 

including small businesses. 

Lastly, DOE considered the criterion 

that requires manufacturers to eliminate 

standing pilot lights and other 

continuously-burning ignition devices 

from primarily decorative vented hearth 

products by January 1, 2015. This would 

likely cause manufacturers to incur 

conversion costs to qualify for the 

proposed exclusion from the energy 

conservation standards. To calculate the 

conversion costs for primarily 

decorative hearth products to remove 

standing pilots, DOE used publiclyavailable information for the 10 

domestic small business manufacturers 

to identify all vented hearth products 

certified to the ANSI Z21.50 standard. 

DOE found the total number of product 

lines manufactured by small businesses 

for primarily decorative vented hearth 

products to be 20. Based on a review of 

all small business manufacturers’ 

products, DOE estimated that 47 percent 

of primarily decorative gas hearth 

products would have to remove 

standing pilots. Therefore, 10 of these 

product lines would have to be 

upgraded by January 1, 2015. 

DOE believes that the elimination of 

standing pilot would only result in 

product conversion costs associated 

with testing and recertification to the 

ANSI safety standards for the newly 

designed products. If all 10 product 

lines need to be retested and recertified 

as a result of the elimination of standing 

pilots or other continuously-burning 

ignition sources from the system, the 

estimated product conversion cost 

would be approximately $90,000 for the 

set of small businesses to comply with 

the January 1, 2015 exclusion criteria for 

the primarily decorative gas hearth 

products. DOE recognizes that not all 

decorative products are currently 

certified to ANSI Z21.50 and that the 

$90,000 represents a lower bound in 

conversion costs. However, DOE did not 

find a significant number of decorative 

hearth products that were not certified 

to either ANSI Z21.50 or ANSI Z21.88. 

Based on the engineering analysis 

performed for the April 2010 final rule, 

DOE does not believe any capital 

conversion costs would be needed for 

manufacturers of primarily decorative 

hearth products to comply with the 

criterion for elimination of the standing 

pilot, because for these products the 

addition of an electronic ignition system 

primarily consists of component 

additions that would not require new 

capital investment or significant 

changes to the manufacturing line. 

In considering the impacts of this 

requirement, DOE compared the 

impacts of meeting the exclusion 

criteria to the alternative of meeting the 

efficiency requirements in the April 

2010 final rule. Under the newlyproposed exclusion criteria, instead of 

completely redesigning primarily 

decorative hearth products to improve 

energy efficiency, manufacturers could 

make a comparatively minor 

engineering change of replacing the 

standing pilot or other continuouslyburning ignition with an alternative 

technology such as an electronic 

ignition or interrupted ignition device. 

DOE believes that replacing the standing 

pilot or other continuously-burning 

ignition device with an alternative 

technology would be less burdensome 

to manufacturers than a complete 

redesign of primarily decorative hearth 

products to meet the minimum 

efficiency standard. Moreover, a 

redesign to comply with the energy 

conservation standard would likely 

necessitate elimination of any standing 

pilot on units so equipped anyway, 

along with additional engineering 

changes to improve efficiency. In 

addition, manufacturers would be 

required to test and certify their 

equipment to DOE efficiency’s 

standards along with the ANSI safety 

standards, further increasing the cost 

and burden of compliance with the 

energy conservation standard in 

comparison to simply replacing the 

standing pilot or continuously-burning 

ignition with an alternative technology. 

Based on this analysis of the four 

exclusion criteria, DOE anticipates 

industry conversion costs of $90,000 to 

update primarily decorative hearth 

products that are currently certified to 

ANSI Z21.50 and have a continuouslyburning ignition to meet the exclusion 

criteria, as these products would need to 

be recertified once the continuouslyburning ignition was removed. If 

manufacturers chose to reclassify a 

significant portion of their hearth 

heating products that are currently 

certified to ANSI Z21.88 as decorative 

hearth products, which would require 

recertifying them to ANSI Z21.50, 

conversion costs for the four criteria 

could reach an upper bound of $1.8 

million. However, manufacturers have 

indicated that this is not a likely 

scenario. 

As a result of the considerations 

discussed above, DOE has concluded 

that today’s final rule would not 

disproportionately impact small 

manufacturers of vented hearth 

products. 

4. Duplication, Overlap, and Conflict 

With Other Rules and Regulations 

DOE is not aware of any rules or 

regulations that duplicate, overlap, or 

conflict with the rule being considered 

today. 

5. Significant Alternatives to the Rule 

The discussion above analyzes 

impacts on small businesses that would 

result from the amended definition for 

‘‘vented hearth heater,’’ due to its effect 

on which units will be subject to energy 

conservation standards. DOE believes 

that the amended definition in this 

notice represents a similar burden on 

industry, including small business 

manufacturers, in comparison to the 

definition included in the April 2010 

final rule. In that rule, DOE rejected the 

other alternatives to the rule because of 

the lower energy savings associated 

with those alternatives. 

C. Review Under the Paperwork 

Reduction Act of 1995 

Manufacturers of direct heating 

equipment must certify to DOE that 

their products comply with any 

applicable energy conservation 

standards. In certifying compliance, 

manufacturers must test their products 

according to the DOE test procedures for 

direct heating equipment, including any 

amendments adopted for those test 

procedures. DOE has established 

regulations for the certification and 

recordkeeping requirements for all 

covered consumer products and 

commercial equipment, including direct 

heating equipment. (76 FR 12422 

(March 7, 2011). The collection-ofinformation requirement for the 

certification and recordkeeping is 

subject to review and approval by OMB 

under the Paperwork Reduction Act 

(PRA). (44 U.S.C. 3501 et seq.) This 

requirement has been approved by OMB 

under OMB control number 1910–1400. 

Public reporting burden for the 

certification is estimated to average 20 

hours per response, including the time 

for reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE has prepared a draft 

environmental assessment (EA) of the 

impacts of the proposed rule pursuant 

to the National Environmental Policy 

Act of 1969 (42 U.S.C. 4321 et seq.), the 


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regulations of the Council on 

Environmental Quality (40 CFR parts 

1500–1508), and DOE’s regulations for 

compliance with the National 

Environmental Policy Act of 1969 (10 

CFR part 1021). This assessment, which 

has been placed in the docket for this 

rulemaking, includes an examination of 

the potential effects of emission 

reductions likely to result from the rule 

in the context of global climate change, 

as well as other types of environmental 

impacts. The estimated additional 

cumulative CO2 and NOX emissions 

reductions for these proposed 

amendments to the energy conservation 

standards are 0.79 million metric tons 

(Mt) for CO2 and 0.63 thousand metric 

tons (kt) for NOX. DOE found that the 

environmental effects associated with 

the amended standards for direct 

heating equipment are not significant. 

Therefore, after consideration of the 

public comments received on the NOPR, 

DOE issued a finding of no significant 

impact (FONSI) as part of the final EA. 

The FONSI is available in the docket for 

this rulemaking at http:// 

www.regulations.gov. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism.’’ 

64 FR 43255 (Aug. 10, 1999), imposes 

certain requirements on Federal 

agencies formulating and implementing 

policies or regulations that preempt 

State law or that have Federalism 

implications. The Executive Order 

requires agencies to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. 65 FR 13735. EPCA 

governs and prescribes Federal 

preemption of State regulations as to 

energy conservation for the products 

that are the subject of today’s final rule. 

States can petition DOE for exemption 

from such preemption to the extent, and 

based on criteria, set forth in EPCA. (42 

U.S.C. 6297) No further action is 

required by Executive Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ imposes on Federal agencies 

the general duty to adhere to the 

following requirements: (1) Eliminate 

drafting errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. 61 FR 4729 (Feb. 

7, 1996). Section 3(b) of Executive Order 

12988 specifically requires that 

Executive agencies make every 

reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, this final 

rule meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Public Law 104–4, 

section 201 (codified at 2 U.S.C. 1531). 

For a regulatory action likely to result in 

a rule that may cause the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish a written statement that 

estimates the resulting costs, benefits, 

and other effects on the national 

economy. (2 U.S.C. 1532(a), (b)) The 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect small 

governments. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. 62 FR 

12820. DOE’s policy statement is also 

available at http://www.gc.doe.gov. 

Today’s final rule does not contain a 

Federal intergovernmental mandate, 

because it will not require expenditures 

of $100 million or more by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector. DOE 

has considered expenditures that will 

result from updating manufacturer 

literature, product labels, and making 

design changes to primarily decorative 

hearth products to eliminate the 

standing pilot light or other 

continuously-burning ignition source, 

and concluded that these expenditures 

will total less than $100 million. 

Accordingly, no further action is 

required under the UMRA. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule would not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630 

DOE has determined, under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights’’ 53 FR 8859 

(March 18, 1988), that this regulation 

would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516, note) 

provides for Federal agencies to review 

most disseminations of information to 

the public under guidelines established 

by each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

today’s final rule under the OMB and 

DOE guidelines and has concluded that 


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it is consistent with applicable policies 

in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA at OMB, a 

Statement of Energy Effects for any 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule, and that: (1) Is a significant 

regulatory action under Executive Order 

12866, or any successor order; and (2) 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy, or (3) is designated by the 

Administrator of OIRA as a significant 

energy action. For any significant energy 

action, the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

DOE has concluded that today’s 

regulatory action, which sets forth 

amended definitions for direct heating 

equipment, is not a significant energy 

action the rule is not a significant 

regulatory action under Executive Order 

12866 and because the amended 

standards are not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy, nor has it 

been designated as such by the 

Administrator at OIRA. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects on the final rule. 

L. Review Under the Information 

Quality Bulletin for Peer Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy (OSTP), issued 

its Final Information Quality Bulletin 

for Peer Review (the Bulletin). 70 FR 

2664 (Jan. 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

Government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. Under the 

Bulletin, the energy conservation 

standards rulemaking analyses are 

‘‘influential scientific information,’’ 

which the Bulletin defines as ‘‘scientific 

information the agency reasonably can 

determine will have, or does have, a 

clear and substantial impact on 

important public policies or private 

sector decisions.’’ Id. at 2667. 

In response to OMB’s Bulletin, DOE 

conducted formal in-progress peer 

reviews of the energy conservation 

standards development process and 

analyses and has prepared a Peer 

Review Report pertaining to the energy 

conservation standards rulemaking 

analyses. Generation of this report 

involved a rigorous, formal, and 

documented evaluation using objective 

criteria and qualified and independent 

reviewers to make a judgment as to the 

technical/scientific/business merit, the 

actual or anticipated results, and the 

productivity and management 

effectiveness of programs and/or 

projects. The ‘‘Energy Conservation 

Standards Rulemaking Peer Review 

Report’’ dated February 2007 has been 

disseminated and is available at the 

following Web site: http:// 

www1.eere.energy.gov/buildings/ 

appliance_standards/peer_review.html. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s final rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by Reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, and 

Small businesses. 

Issued in Washington, DC, on November 8, 

2011. 

Kathleen Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Office of Technology 

Development, Energy Efficiency and 

Renewable Energy. 

For the reasons set forth in the 

preamble, DOE amends part 430 of 

Chapter II, Subchapter D, of Title 10 of 

the Code of Federal Regulations, to read 

as set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 1. The authority citation for part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

■ 2. Section 430.2 is amended by 

revising the definition for ‘‘Vented 

hearth heater’’ to read as follows: 

§ 430.2 Definitions. 

* * * * * 

Vented hearth heater means a vented 

appliance which simulates a solid fuel 

fireplace and is designed to furnish 

warm air, with or without duct 

connections, to the space in which it is 

installed. The circulation of heated 

room air may be by gravity or 

mechanical means. A vented hearth 

heater may be freestanding, recessed, 

zero clearance, or a gas fireplace insert 

or stove. The following products are not 

subject to the energy conservation 

standards for vented hearth heaters: 

(1) Vented gas log sets and 

(2) Vented gas hearth products that 

meet all of the following four criteria: 

(i) Certified to ANSI Z21.50 

(incorporated by reference; see § 430.3), 

but not to ANSI Z21.88 (incorporated by 

reference; see § 430.3); 

(ii) Sold without a thermostat and 

with a warranty provision expressly 

voiding all manufacturer warranties in 

the event the product is used with a 

thermostat; 

(iii) Expressly and conspicuously 

identified on its rating plate and in all 

manufacturer’s advertising and product 

literature as a ‘‘Decorative Product: Not 

for use as a Heating Appliance’’; and 

(iv) With respect to products sold 

after January 1, 2015, not equipped with 

a standing pilot light or other 

continuously-burning ignition source. 

* * * * * 

■ 3. Section 430.3 is amended by adding 

new paragraphs (c)(18) and (c)(19) to 

read as follows: 

§ 430.3 Materials incorporated by 

reference. 

* * * * * 

(c) * * * 

(18) ANSI Z21.50–2007 (CSA 2.22– 

2007), (‘‘ANSI Z21.50’’), Vented Gas 

Fireplaces, Fifth Edition, Approved 

February 22, 2007, IBR approved for 

§ 430.2. 

(19) ANSI Z21.88–2009 (CSA 2.33– 

2009), (‘‘ANSI Z21.88’’), Vented Gas 

Fireplace Heaters, Fifth Edition, 

Approved March 26, 2009, IBR 

approved for § 430.2. 

* * * * * 

[FR Doc. 2011–29503 Filed 11–17–11; 8:45 am] 

BILLING CODE 6450–01–P 


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