79638 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

2http://www.ncta.com/energyagreement. 

establish a test procedure for STBs. 

First, DOE issued a request for 

information document on December 16, 

2011, requesting stakeholders to provide 

technical information regarding various 

test procedures used by industry to 

measure the energy consumption of 

STBs and network equipment. 76 FR at 

78174. DOE then published a notice of 

proposed rulemaking (NOPR) on 

January 23, 2013 to establish a new test 

procedure focused exclusively on STBs. 

78 FR 5076. DOE held a public meeting 

and requested stakeholder comments on 

all aspects of the NOPR. 

III. Discussion 

In September, 2013 a broadly 

representative group of Pay-TV, 

consumer electronics industries and 

energy advocates announced a 

Voluntary Agreement for Ongoing 

Improvement to the Energy Efficiency of 

Set-Top Boxes (Agreement).2 The 

Agreement established a five-year 

written commitment to continue 

improvements in the energy efficiency 

of STBs used in the distribution of 

digital video signals. Under the terms of 

the Agreement, it is predicted that 

consumers will realize significant 

annual residential electricity savings. 

DOE encourages the development of 

market-based solutions, such as the 

Agreement, that are a result of a 

consensus among and including all 

relevant parties. DOE also recognizes 

that there are multiple paths forward to 

ensure that the maximum economic 

benefits and energy savings occur 

through increasing the efficiency of 

STBs. DOE believes that the Agreement 

has the potential to achieve significant 

energy savings in STBs. Thus, in light 

of the newly adopted Agreement, DOE 

withdraws its proposed test procedure 

for STBs. DOE notes that it will 

continue to monitor the STB market 

closely and would consider reinitiating 

the rulemaking if it was found that the 

energy efficiency gains for STBs and 

consumer savings envisioned in the 

Agreement were not being realized. 

By separate action published 

elsewhere in today’s Federal Register, 

DOE is withdrawing its proposed rule to 

determine STBs as a covered product. 

IV. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this withdrawal. 

List of Subjects 

10 CFR Part 429 

Confidential business information, 

Energy conservation, Household 

appliances, Imports, Reporting and 

recordkeeping requirements. 

10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses. 

Issued in Washington, DC, on December 

20, 2013. 

Kathleen B. Hogan, 

Deputy Assistant Secretary of Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

[FR Doc. 2013–31264 Filed 12–30–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No EERE–2013–BT–DET–0057] 

RIN 1904–AD14 

Energy Conservation Program for 

Consumer Products: Proposed 

Determination of Hearth Products as a 

Covered Consumer Product 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Proposed determination of 

coverage. 

SUMMARY: The U.S. Department of 

Energy (DOE or the ‘‘Department’’) has 

tentatively determined that hearth 

products qualify as a covered product 

under Part A of Title III of the Energy 

Policy and Conservation Act (EPCA), as 

amended. More specifically, DOE has 

tentatively determined that hearth 

products meet the criteria for covered 

products because classifying products of 

such type as covered products is 

necessary or appropriate to carry out the 

purposes of EPCA (which is to improve 

the efficiency of covered consumer 

products to conserve the energy 

resources of the Nation), and the average 

annual U.S. household energy use for 

hearth products is likely to exceed 100 

kilowatt-hours (kWh) per year. 

DATES: DOE will accept written 

comments, data, and information on this 

notice, but no later than January 30, 

2014. 

ADDRESSES: Interested persons are 

encouraged to submit comments 

electronically. However, interested 

persons may submit comments, 

identified by docket number EERE– 

2013–BT–DET–0057 or Regulatory 

Information Number (RIN) 1904–AD14, 

by any of the following methods: 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: 

HearthHtgProd2013DET0057@

ee.doe.gov. Include EERE–2013–BT– 

DET–0057 and/or RIN 1904–AD14 in 

the subject line of the message. Submit 

electronic comments in WordPerfect, 

Microsoft Word, portable document 

format (PDF), or American Standard 

Code for Information Exchange (ASCII) 

file format, and avoid the use of special 

characters or any form of encryption. 

• Postal Mail: Ms. Brenda Edwards, 

U.S. Department of Energy, Building 

Technologies Office, Mailstop EE–2J, 

Proposed Determination for Hearth 

Products, EERE–2013–BT–DET–0057 

and/or RIN 1904–AD14, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–2945. If possible, 

please submit all items on a compact 

disc (CD), in which case it is not 

necessary to include printed copies. 

• Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Office, 6th Floor, 

950 L’Enfant Plaza SW., Washington, 

DC 20024. Telephone: (202) 586–2945. 

If possible, please submit all items on a 

CD, in which case it is not necessary to 

include printed copies. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this 

rulemaking. No telefacsimilies (faxes) 

will be accepted. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see section VI of 

this document (Public Participation). 

Docket: The docket is available for 

review at www.regulations.gov, 

including Federal Register notices, 

comments, and other supporting 

documents/materials (search EERE– 

2013–BT–DET–0035). All documents in 

the docket are listed in the 

www.regulations.gov index. However, 

not all documents listed in the index 

may be publicly available, such as 

information that is exempt from public 

disclosure. 

A link to the docket Web page can be 

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

#!docketDetail;D=EERE-2013-BT-DET0057. This Web page contains a link to 

the docket for this notice on the 

www.regulations.gov site. The 

www.regulations.gov Web page contains 

instructions on how to access all 

documents, including public comments, 

in the docket. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Cymbalsky, U.S. Department of 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 79639 

1For editorial reasons, upon codification in the 

U.S. Code, Part B was re-designated Part A. 

2All references to EPCA in this document refer 

to the statute as amended through the American 

Energy Manufacturing Technical Corrections Act 

(AEMTCA), Public Law 112–210 (Dec. 18, 2012). 

3 DOE notes that a drafting error arose at the time 

Congress adopted the amendments to EPCA 

contained in the Energy Independence and Security 

Act of 2007 (EISA 2007), Public Law 110–140. As 

part of the EISA 2007 amendments, Congress added 

metal halide lamp fixtures to the list of specifically 

enumerated covered products at 42 U.S.C. 

6292(a)(19) and shifted the provision for the 

Secretary to classify ‘‘any other type’’ of a consumer 

product as a covered product to 42 U.S.C. 

6292(a)(20). However, Congress did not similarly 

amend the criteria and other requirements for 

setting energy conservation standards for ‘‘other’’ 

covered products in 42 U.S.C. 6295(l)(1) and (2). 

The provisions in 42 U.S.C. 6295(l) continued to 

refer to standards for ‘‘any type’’ of covered 

product, while continuing to refer to 42 U.S.C. 

6292(a)(20). Clearly, the provisions at 42 U.S.C. 

6295(l) were intended to apply more broadly than 

to metal halide lamp fixtures, so DOE continues to 

apply this provision as if the drafting error had not 

occurred. To do otherwise would render the 

provision at 42 U.S.C. 6295(l) a nullity, thereby 

thwarting DOE’s ability to set energy conservation 

standards for newly covered products, an outcome 

which Congress could not have intended. 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 287–1692. Email: 

hearth_products@ee.doe.gov. 

Mr. Eric Stas, U.S. Department of 

Energy, Office of the General Counsel, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–9507 Email: 

Eric.Stas@hq.doe.gov. 

For information on how to submit or 

review public comments, contact Ms. 

Brenda Edwards, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, Mailstop EE–2J, 

1000 Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–2945. Email: 

Brenda.Edwards@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Statutory Authority 

II. Current Rulemaking Process 

III. Proposed Definition 

IV. Evaluation of Hearth Products as a 

Covered Product Subject to Energy 

Conservation Standards 

A. Coverage Necessary or Appropriate to 

Carry Out Purposes of EPCA 

B. Average Household Energy Use 

V. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act of 1995 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Review Under the Information Quality 

Bulletin for Peer Review 

VI. Public Participation 

A. Submission of Comments 

B. Issues on Which DOE Seeks Comments 

I. Statutory Authority 

Title III of the Energy Policy and 

Conservation Act of 1975 (EPCA), as 

amended (42 U.S.C. 6291 et seq.), sets 

forth various provisions designed to 

improve energy efficiency for consumer 

products and certain commercial and 

industrial equipment. Title III, Part B1

of EPCA,2 Pubic Law 94–163 (42 U.S.C. 

6291–6309, as codified) established the 

‘‘Energy Conservation Program for 

Consumer Products Other Than 

Automobiles,’’ a program covering most 

major household appliances (hereafter 

referred to as ‘‘covered products’’). In 

addition to specifying a list of covered 

residential and commercial products, 

EPCA contains provisions that enable 

the Secretary of Energy to classify 

additional types of consumer products 

as covered products. (42 U.S.C. 

6292(a)(20)) Specifically, for a given 

product to be classified as a covered 

product, the Secretary must determine 

that: 

(A) Classifying the product as a covered 

product is necessary or appropriate for the 

purposes of carrying out EPCA; and 

(B) The average annual per-household 

energy use by products of such type is likely 

to exceed 100 kilowatt-hours (kWh) per year. 

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

For the Secretary to prescribe an 

energy conservation standard pursuant 

to 42 U.S.C. 6295(o) and (p) for covered 

products added pursuant to 42 U.S.C. 

6292(b)(1), the Secretary must also 

determine that: 

(A) The average household energy use of 

the products has exceeded 150 kWh (or its 

Btu equivalent) per household for any 12- 

month period; 

(B) The aggregate 12-month household 

energy use of the products has exceeded 4.2 

TWh; 

(C) Substantial improvement in energy 

efficiency is technologically feasible; and 

(D) Application of a labeling rule under 42 

U.S.C. 6294 is unlikely to be sufficient to 

induce manufacturers to produce, and 

consumers and other persons to purchase, 

covered products of such type (or class) that 

achieve the maximum energy efficiency that 

is technologically feasible and economically 

justified. 

(42 U.S.C. 6295(l)(1)(A)–(D)) 3

Hearth products are gas-fired 

equipment that provide space heating 

and/or provide an aesthetic appeal to 

the living space. If DOE issues a final 

determination that hearth products are a 

covered product, DOE will consider test 

procedures and energy conservation 

standards for hearth products, including 

an initial determination as to whether 

hearth products satisfy the provisions of 

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

II. Current Rulemaking Process 

On April 16, 2010, DOE published a 

final rule in the Federal Register 

(hereafter referred to as the ‘‘April 2010 

final rule’’) in accordance with the 

relevant statutory provisions discussed 

in that final rule, which, in relevant 

part, promulgated definitions and 

energy conservation standards for 

vented gas hearth products. 75 FR 

20112. Following DOE’s adoption of the 

April 2010 final rule, the Hearth, Patio 

& Barbecue Association (HPBA) sued 

DOE in the United States Court of 

Appeals for the District of Columbia 

Circuit (D.C. Circuit) to invalidate the 

April 2010 rule and an amendment to 

that rule published on November 18, 

2011 (76 FR 71836) as those rules 

pertained to vented gas hearth products. 

Statement of Issues to Be Raised, 

Hearth, Patio & Barbecue Association v. 

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

1113 (D.C. Cir. filed July 1, 2010). On 

February 8, 2013, the D.C. Circuit issued 

its opinion in the HPBA case and 

ordered that the definition of ‘‘vented 

hearth heater’’ adopted by DOE be 

vacated, and remanded the matter to 

DOE to interpret the challenged 

provisions in accordance with the 

Court’s opinion. Hearth, Patio & 

Barbecue Association v. Department of 

Energy, et al., 706 F.3d 499 (D.C. Cir. 

2013). 

DOE has not previously conducted an 

energy conservation standards 

rulemaking for hearth products with the 

exception of the vented hearth heaters, 

which are no longer covered products as 

a result of the Court ruling. If, after 

public comment, DOE issues a final 

determination of coverage for this type 

of product, DOE will consider both test 

procedures and energy conservation 

standards for all hearth products. 

With respect to test procedures, DOE 

would consider a proposed test 

procedure for measuring the energy 

efficiency, energy use, or estimated 

annual operating cost of hearth products 

during a representative average use 

cycle or period of use that is not unduly 

burdensome to conduct. (42 U.S.C. 


emcdonald on DSK67QTVN1PROD with PROPOSALS
79640 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

4The aggregate national energy use of hearth 

products is based on energy use estimates for hearth 

products provided in section IV.B, Energy 

Information Administration, 2009 Residential 

Energy Consumption Survey (Available at: http:// 

www.eia.doe.gov/emeu/recs), U.S. Census, 2011 

American Housing Survey (Available at 

http://www.census.gov/housing/ahs/data/

national.html), 2002 to 2012 HPBA U.S. hearth 

shipments (Available at http://www.hpba.org/

statistics/hpba-us-hearth-statistics), and. 2010 

report prepared for HPBA by J. Houck, Residential 

Decorative Gas Fireplace Usage Characteristic 

(Available at: http://energy.gov/sites/prod/files/

gcprod/documents/RFIRegReview_HPBAAttachC_

03212011.pdf). 

5Houck, James. Residential Decorative Gas 

Fireplace Usage Characteristic. Report prepared for 

HPBA (2010) (Available at: http://energy.gov/sites/ 

prod/files/gcprod/documents/RFIRegReview_HPBA

AttachC_03212011.pdf). 

6U.S. Department of Energy-Office of Codes and 

Standards, Analytical Tools: Energy Conservation 

Standards for Residential Water Heaters, Direct 

Heating Equipment, and Pool Heaters (April 27, 

2010) (Available at: http://www1.eere.energy.gov/

buildings/appliance_standards/residential/pdfs/

htgp_finalrule_correction.pdf). 

7This value was derived from data collected on 

the following manufacturer Web sites: GRI 1997 

Study: Menkedick, J., Hartford, P., Collins, S., 

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

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

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

Intertek Testing Service. NOPR Comment # 0198 

to Hearth Products NOPR. (Available at: http://

www.regulations.gov/#%21docketDetail;dct=FR+

PR+N+O+SR+PS;rpp=50;so=DESC;sb=posted

Date;po=0;D=EERE-2011-BT-STD-0047). 

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

www.heatilator.com/customerCare/

searchFaq.asp?c=Gas). 

EER Consulting, ‘‘Input Rate of Pilot Burners on 

Gas Fireplaces’’ (Consultant Report). EER 

Consulting (Nov. 6, 2011). 

NRCAN. Personal: Residential: Chapter 3—All 

About Gas Fireplaces (Available at URL: http:// 

oee.nrcan.gc.ca/Publications/infosource/Pub/home/

all_about_gas_fireplaces_chapter3.cfm?text=N&

printview=N). 

Pittsburg Gas Grill and Heater Co. Frequently 

Asked Questions. (Available at URL: http://

www.pittsburghgasgrill.com/faq.html). 

6293(b)(3)) In a test procedure 

rulemaking, DOE initially prepares a 

notice of proposed rulemaking (NOPR) 

and allows interested parties to present 

oral and written data, views, and 

arguments with respect to such 

procedures. In prescribing new test 

procedures, DOE would take into 

account relevant information including 

technological developments relating to 

energy use or energy efficiency of hearth 

products. 

With respect to energy conservation 

standards, DOE is required to publish a 

NOPR that would provide DOE’s 

proposal for potential energy 

conservations standards and a summary 

of the results of DOE’s supporting 

technical analysis. The details of DOE’s 

energy conservation standards analysis 

would be provided in a technical 

support document (TSD) that describes 

the details of DOE’s analysis of both the 

burdens and benefits of potential 

standards, pursuant to 42 U.S.C. 

6295(o). Because hearth products would 

be a product that is newly covered 

under 42 U.S.C. 6292(b)(1), DOE would 

also consider as part of any energy 

conservation standard NOPR whether 

hearth products satisfy the requirements 

of 42 U.S.C. 6295(l)(1). After the 

publication of the NOPR, DOE would 

afford interested persons an opportunity 

during a period of not less than 60 days 

to provide oral and written comment. 

(42 U.S.C. 6295(p)(2)) After receiving 

and considering the comments on the 

NOPR and not less than 90 days after 

the publication of the NOPR, DOE 

would issue the final rule prescribing 

any new energy conservation standards 

for hearth products. (42 U.S.C. 

6295(p)(3)) 

III. Proposed Definition 

DOE proposes to add a definition for 

‘‘hearth products’’ in the Code of 

Federal Regulations (CFR) to clarify 

coverage of any potential test procedure 

or energy conservation standard that 

may arise from today’s proposed 

determination. There currently is no 

statutory definition of ‘‘hearth 

products.’’ As discussed in section IV of 

this notice, DOE has preliminarily 

determined that adding hearth products 

as a covered product is justified under 

the relevant statutory criteria. 

Accordingly, DOE proposes to adopt the 

following definition of ‘‘hearth 

products’’ to consider in the context of 

any subsequent test procedures and 

energy conservation standards for 

hearth products, and to provide clarity 

for interested parties as it continues its 

analyses: 

Hearth product means a gas-fired 

appliance that simulates a solid-fueled 

fireplace or presents a flame pattern (for 

aesthetics or other purpose) and that may 

provide space heating directly to the space in 

which it is installed. 

This proposed definition includes 

(but is not necessarily limited to) all 

vented and unvented hearth products. 

More specifically, it includes vented 

decorative hearth products, vented 

heater hearth products, vented gas logs, 

gas stoves, outdoor hearth products, and 

ventless hearth products. 

DOE seeks comments from interested 

parties on its proposed definition of 

‘‘hearth products.’’ 

IV. Evaluation of Hearth Products as a 

Covered Product 

The following sections describe DOE’s 

evaluation of whether hearth products 

fulfill the criteria for being added as a 

covered product pursuant to 42 U.S.C. 

6292(b)(1). As stated previously, DOE 

may classify a consumer product as a 

covered product if: (1) Classifying 

products of such type as covered 

products is necessary or appropriate to 

carry out the purposes of EPCA; and (2) 

the average annual per-household 

energy use by products of such type is 

likely to exceed 100 kWh (or its Btu 

equivalent) per year. 

A. Coverage Necessary or Appropriate 

to Carry Out Purposes of EPCA 

Coverage of hearth products is 

necessary or appropriate to carry out the 

purposes of EPCA, which include: (1) 

To conserve energy supplies through 

energy conservation programs, and, 

where necessary, the regulation of 

certain energy uses; and (2) to provide 

for improved energy efficiency of motor 

vehicles, major appliances, and certain 

other consumer products. (42 U.S.C. 

6201) The aggregate national energy use 

of hearth products is estimated to be 

0.11 quads (31.2 TWh).4 Coverage of 

hearth products will further the 

conservation of energy supplies through 

both labeling programs and the 

regulation of energy efficiency. There is 

significant variation in the annual 

energy consumption of otherwise 

comparable models currently available, 

indicating that technologies exist to 

reduce the energy consumption of 

hearth products. Therefore, DOE has 

tentatively determined that coverage of 

hearth products is necessary and 

appropriate to carrying out the purposes 

of EPCA, thereby satisfying the 

provisions of 42 U.S.C. 6292(b)(1)(A). 

B. Average Household Energy Use 

DOE calculated average household 

energy use for hearth products, in 

households that use the product, based 

on a study prepared for HPBA.5 Based 

on this study, vented heater hearth 

products operate on average 75 hours 

per year, while vented decorative hearth 

products operate half that number (or 

37.5 hours per year). DOE assumes that 

ventless hearth products operate 75 

hours per year (similar to vented heater 

hearth products), while vented gas logs 

and outdoor units operate 37.5 hours 

per year (similar to vented decorative 

hearth products). Based upon a review 

of available information, DOE has 

tentatively determined that the average 

input capacity for all hearth products is 

35,000 Btu/h, based on hearth models 

offered in 2010.6 DOE also took into 

account the energy use from a standing 

pilot light or other continuouslyburning ignition source. DOE estimated 

that on average, continuous pilot energy 

use is about 800 Btu/h.7 DOE assumed 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 79641 

Leonard’s Stone & Fireplace. Frequently Asked 

Questions. (Available at URL: http://www.leonards

stoneandfireplace.net/faq.html). 

Fireside Hearth & Home. Frequently Asked 

Questions. (Available at URL: http://www.fire

sidehearthandhome.com/faq.php). 

Fireplace Professionals. Frequently Asked 

Questions. (Available at URL: http://www.fireplace

professionals.com/faqs.htm). 

that pilot lights operate year round (i.e., 

8,760 h/yr) for 25 percent of the 

installations, only during the heating 

season (about one-fourth of the year, or 

2,190 h/yr) for 25 percent of the 

installations, and only when the burner 

is on for the remaining 50 percent of the 

installations. Based on these combined 

estimates, vented heater hearth products 

and ventless hearth products are 

estimated to consume 4.82 MMBtu/yr 

(1,411 kWh/yr) per hearth product, 

while vented decorative hearth products 

and vented gas logs and outdoor units 

are estimated to consume 3.49 MMBtu/ 

yr (1,022 kWh/yr) per hearth product. 

Based on disaggregated shipments 

provided by HPBA from 2002–2003, 

vented decorative hearth products 

account for 30 percent of total 

shipments, vented heater hearth 

products account for 13 percent, vented 

gas logs and outdoor units account for 

7 percent, and ventless hearth products 

account for 51 percent. Using the 

distribution of shipments from the data 

provided by HPBA results in a weighted 

average energy use of 4.33 MMBtu/yr 

(1,269 kWh/yr) per hearth product. 

Therefore, DOE has tentatively 

determined that the average annual perhousehold energy use for hearth 

products is likely to exceed 100 kWh/ 

yr, thereby satisfying the provisions of 

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

Based on the above, DOE has 

determined tentatively that hearth 

products qualify as a covered product 

under Part A of Title III of the EPCA, as 

amended. 

V. Procedural Issues and Regulatory 

Review 

DOE has reviewed its proposed 

determination of hearth products under 

the following Executive Orders and 

Acts. 

A. Review Under Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that coverage 

determination rulemakings do not 

constitute ‘‘significant regulatory 

actions’’ under section 3(f) of Executive 

Order 12866, ‘‘Regulatory Planning and 

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

Accordingly, this proposed action was 

not subject to review under the 

Executive Order by the Office of 

Information and Regulatory Affairs 

(OIRA) in OMB. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996) requires 

preparation of an initial regulatory 

flexibility analysis for any rule that, by 

law, must be proposed for public 

comment, unless the agency certifies 

that the proposed rule, if promulgated, 

will not have a significant economic 

impact on a substantial number of small 

entities. A regulatory flexibility analysis 

examines the impact of the rule on 

small entities and considers alternative 

ways of reducing negative effects. Also, 

as required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003 to ensure that the potential impact 

of its rules on small entities are properly 

considered during the DOE rulemaking 

process. 68 FR 7990 (Feb. 19, 2003). 

DOE makes its procedures and policies 

available on the Office of the General 

Counsel’s Web site at www.gc.doe.gov./ 

gc/office-general-counsel. 

DOE reviewed today’s proposed 

determination under the provisions of 

the Regulatory Flexibility Act and the 

policies and procedures published on 

February 19, 2003. 

For manufacturers of hearth products, 

the Small Business Administration 

(SBA) has set a size threshold, which 

defines those entities classified as 

‘‘small businesses’’ for the purposes of 

the statute. DOE used the SBA’s small 

business size standards to determine 

whether any small entities would be 

subject to the requirements of the rule. 

65 FR 30836, 30848 (May 15, 2000), as 

amended at 65 FR 53533, 53544 (Sept. 

5, 2000) and codified at 13 CFR part 

121. The size standards are listed by 

North American Industry Classification 

System (NAICS) code and industry 

description, which are available at: 

http://www.sba.gov/sites/default/files/

Size_Standards_Table.pdf. There is no 

specific NAICS code for hearth 

products, so DOE applied the size 

threshold used for NAICS 333414, 

‘‘Heating Equipment (except Warm Air 

Furnaces) Manufacturing.’’ The SBA 

sets a threshold of 500 employees or less 

for an entity to be considered as a small 

business for this category 

DOE surveyed available information, 

including the HPBA membership 

directory, Air-conditioning, Heating, 

and Refrigeration Institute (AHRI) 

product databases, SBA databases, and 

individual company Web sites, to 

identify potential small manufacturers 

of ‘‘hearth products,’’ as defined in this 

notice. DOE screened out companies 

that did not offer products covered by 

this rulemaking, did not meet the 

definition of a ‘‘small business,’’ or are 

foreign-owned and operated. DOE 

identified 16 domestic, small business 

manufacturers of hearth products that 

are to be considered in this regulatory 

flexibility analysis. 

If adopted, today’s proposed 

determination would set no standards; it 

would only positively determine that 

future standards may be warranted and 

should be explored in subsequent 

energy conservation standards and test 

procedure rulemakings. Economic 

impacts on small entities would be 

considered in the context of such 

rulemakings. On the basis of the 

foregoing, DOE certifies that the 

proposed determination, if adopted, 

would not have a significant economic 

impact on a substantial number of small 

entities. Accordingly, DOE has not 

prepared a regulatory flexibility analysis 

for this proposed determination. DOE 

will transmit this certification and 

supporting statement of factual basis to 

the Chief Counsel for Advocacy of the 

Small Business Administration for 

review under 5 U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This proposed determination, which 

proposes to determine that hearth 

products meet the criteria for 

classification as a covered product for 

which the Secretary may prescribe an 

energy conservation standard pursuant 

to 42 U.S.C. 6295(o) and (p), will 

impose no new information or recordkeeping requirements. Accordingly, 

OMB clearance is not required under 

the Paperwork Reduction Act. (44 

U.S.C. 3501 et seq.) 

D. Review Under the National 

Environmental Policy Act of 1969 

In this notice, DOE proposes to 

positively determine that hearth 

products meet the criteria for 

classification as a covered product. 

Environmental impacts would be 

explored in any future energy 

conservation standards rulemaking for 

hearth products. DOE has determined 

that review under the National 

Environmental Policy Act of 1969 

(NEPA), Public Law 91–190, codified at 

42 U.S.C. 4321 et seq. is not required at 

this time. NEPA review can only be 

initiated ‘‘as soon as environmental 

impacts can be meaningfully evaluated’’ 

(10 CFR 1021.213(b)). This proposed 

determination would only determine 


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79642 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

that future standards may be warranted, 

but would not itself propose to set any 

specific standard. DOE has, therefore, 

determined that there are no 

environmental impacts to be evaluated 

at this time. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 10, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to assess carefully the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in developing 

regulatory policies that have Federalism 

implications. On March 14, 2000, DOE 

published a statement of policy 

describing the intergovernmental 

consultation process that it will follow 

in developing such regulations. 65 FR 

13735 (March 14, 2000). DOE has 

examined today’s proposed 

determination and concludes that it 

would not preempt State law or have 

substantial direct effects on the States, 

on the relationship between the Federal 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. EPCA governs and 

prescribes Federal preemption of State 

regulations as to energy conservation for 

the product that is the subject of today’s 

proposed determination. States can 

petition DOE for exemption from such 

preemption to the extent permitted, and 

based on criteria, set forth in EPCA. (42 

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

required by Executive Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the duty to: 

(1) Eliminate drafting errors and 

ambiguity; (2) write regulations to 

minimize litigation; (3) provide a clear 

legal standard for affected conduct 

rather than a general standard; and (4) 

promote simplification and burden 

reduction. Section 3(b) of Executive 

Order 12988 specifically requires that 

Executive agencies make every 

reasonable effort to ensure that the 

regulation specifies the following: (1) 

The preemptive effect, if any; (2) any 

effect on existing Federal law or 

regulation; (3) a clear legal standard for 

affected conduct while promoting 

simplification and burden reduction; (4) 

the retroactive effect, if any; (5) 

definitions of key terms; and (6) other 

important issues affecting clarity and 

general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in sections 3(a) and 3(b) to 

determine whether these standards are 

met, or whether it is unreasonable to 

meet one or more of them. DOE 

completed the required review and 

determined that, to the extent permitted 

by law, this proposed determination 

meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4, codified at 2 U.S.C. 1501 et seq.) 

requires each Federal agency to assess 

the effects of Federal regulatory actions 

on State, local, and tribal governments 

and the private sector. For regulatory 

actions likely to result in a rule that may 

cause expenditures by State, local, and 

Tribal governments, in the aggregate, or 

by the private sector of $100 million or 

more in any 1 year (adjusted annually 

for inflation), section 202 of UMRA 

requires a Federal agency to publish a 

written statement that estimates the 

resulting costs, benefits, and other 

effects on the national economy. (2 

U.S.C. 1532(a) and (b)) UMRA requires 

a Federal agency to develop an effective 

process to permit timely input by 

elected officers of State, local, and tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate.’’ UMRA 

also requires an agency plan for giving 

notice and opportunity for timely input 

to small governments that may be 

potentially affected before establishing 

any requirement that might significantly 

or uniquely affect them. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA. 62 FR 12820 (March 18, 1997). 

(This policy also is available at 

www.gc.doe.gov/gc/downloads/

unfunded-mandates-reform-actintergovernmental-relations). DOE 

reviewed today’s proposed 

determination pursuant to these existing 

authorities and its policy statement and 

determined that the proposed 

determination contains neither an 

intergovernmental mandate nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year, so the UMRA requirements do 

not apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

proposed determination would not have 

any impact on the autonomy or integrity 

of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

Pursuant to Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 15, 1988), 

DOE determined that this proposed 

determination would not result in any 

takings that might require compensation 

under the Fifth Amendment to the U.S. 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriation Act, 2001 

(44 U.S.C. 3516 note) requires agencies 

to review most disseminations of 

information they make to the public 

under guidelines established by each 

agency pursuant to general guidelines 

issued by OMB. The OMB’s guidelines 

were published at 67 FR 8452 (Feb. 22, 

2002), and DOE’s guidelines were 

published at 67 FR 62446 (Oct. 7, 2002). 

DOE has reviewed today’s proposed 

determination under the OMB and DOE 

guidelines and has concluded that it is 

consistent with applicable policies in 

those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OMB a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates a final 

rule or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 


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Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 79643 

a significant adverse effect on the 

supply, distribution, or use of energy; or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use if the 

proposal is implemented, and of 

reasonable alternatives to the proposed 

action and their expected benefits on 

energy supply, distribution, and use. 

DOE has concluded that today’s 

regulatory action proposing to 

determine that hearth products meet the 

criteria for a covered product for which 

the Secretary may prescribe an energy 

conservation standard pursuant to 42 

U.S.C. 6295(o) and (p) would not have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action is also not a significant 

regulatory action for purposes of 

Executive Order 12866, and the OIRA 

Administrator has not designated this 

proposed determination as a significant 

energy action under Executive Order 

12866 or any successor order. Therefore, 

this proposed determination is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects for this proposed 

determination. 

L. Review Under the Information 

Quality Bulletin for Peer Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy (OSTP), issued 

its Final Information Quality Bulletin 

for Peer Review (the Bulletin). 70 FR 

2664 (Jan. 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

Bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. DOE has 

determined that the analyses conducted 

for this rulemaking do not constitute 

‘‘influential scientific information,’’ 

which the Bulletin defines as ‘‘scientific 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions.’’ 70 FR 2667 (Jan. 14, 2005). 

The analyses were subject to predissemination review prior to issuance 

of this rulemaking. 

DOE will determine the appropriate 

level of review that would be applicable 

to any future rulemaking to establish 

energy conservation standards for 

hearth products. 

VI. Public Participation 

A. Submission of Comments 

DOE will accept comments, data, and 

information regarding this notice of 

proposed determination no later than 

the date provided at the beginning of 

this notice. After the close of the 

comment period, DOE will review the 

comments received and determine 

whether hearth products are a covered 

product under EPCA. 

Comments, data, and information 

submitted to DOE’s email address for 

this proposed determination should be 

provided in WordPerfect, Microsoft 

Word, PDF, or text (ASCII) file format. 

Submissions should avoid the use of 

special characters or any form of 

encryption, and wherever possible 

comments should include the electronic 

signature of the author. No 

telefacsimiles (faxes) will be accepted. 

Pursuant to 10 CFR 1004.11, any 

person submitting information that he 

or she believes to be confidential and 

exempt by law from public disclosure 

should submit two copies: One copy of 

the document marked ‘‘confidential’’ 

including all the information believed to 

be confidential, and one copy of the 

document marked ‘‘non-confidential’’ 

with all the information believed to be 

confidential deleted. DOE will make its 

own determination as to the 

confidential status of the information 

and treat it according to its 

determination. 

Factors of interest to DOE when 

evaluating requests to treat submitted 

information as confidential include: (1) 

A description of the items; (2) whether 

and why such items are customarily 

treated as confidential within the 

industry; (3) whether the information is 

generally known or available from 

public sources; (4) whether the 

information has previously been made 

available to others without obligations 

concerning its confidentiality; (5) an 

explanation of the competitive injury to 

the submitting persons which would 

result from public disclosure; (6) a date 

after which such information might no 

longer be considered confidential; and 

(7) why disclosure of the information 

would be contrary to the public interest. 

B. Issues on Which DOE Seeks 

Comments 

DOE welcomes comments on all 

aspects of this proposed determination. 

DOE is particularly interested in 

receiving comments from interested 

parties on the following issues related to 

the proposed determination for hearth 

products: 

• Definition(s) of ‘‘hearth product’’; 

• Whether classifying hearth products 

as a covered product is necessary or 

appropriate to carry out the purposes of 

EPCA; 

• Calculations and values for average 

household energy consumption of 

hearth products; and 

• Availability or lack of availability of 

technologies for improving the energy 

efficiency of hearth products. 

The Department is interested in 

receiving views concerning other 

relevant issues that participants believe 

may affect DOE’s ability to establish test 

procedures and energy conservation 

standards for hearth products. The 

Department invites all interested parties 

to submit in writing by January 30, 

2014, comments and information on 

matters addressed in this notice and on 

other matters relevant to consideration 

of a determination for hearth products. 

After the expiration of the period for 

submitting written statements, the 

Department will consider all comments 

and additional information that is 

obtained from interested parties or 

through further analyses, and it will 

prepare a final determination. If DOE 

determines that hearth products qualify 

as a covered product, DOE will consider 

a test procedure and energy 

conservation standards for hearth 

products. Members of the public will be 

given an opportunity to submit written 

and oral comments on any proposed test 

procedure and standards. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, Small 

businesses. 

Issued in Washington, DC, on December 

24, 2013. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficency, Energy Efficiency and Renewable 

Energy. 

[FR Doc. 2013–31261 Filed 12–30–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2013–BT–PET–0043] 

Energy Conservation Program for 

Consumer Products: Landmark Legal 

Foundation; Petition for 

Reconsideration 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 


emcdonald on DSK67QTVN1PROD with PROPOSALS