[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Proposed Rules]
[Pages 6786-6795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02386]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 87, No. 25 / Monday, February 7, 2022 / 
Proposed Rules

[[Page 6786]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2021-BT-DET-0034]


Energy Conservation Program: Proposed Determination of 
Miscellaneous Gas Products as a Covered Consumer Product

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

ACTION: Notification of proposed determination and request for comment.

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SUMMARY: The U.S. Department of Energy (``DOE'') has tentatively 
determined that miscellaneous gas products, which are comprised of 
decorative hearths and outdoor heaters, qualify as covered products 
under Part A of Title III of the Energy Policy and Conservation Act, as 
amended (``EPCA''). DOE has tentatively determined that coverage of 
miscellaneous gas products is necessary and appropriate to carry out 
the purposes of EPCA, and that the average U.S. household energy use 
for miscellaneous gas products is likely to exceed 100 kilowatt-hours 
per year.

DATES: Written comments, data, and information are requested and will 
be accepted on or before April 8, 2022.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at www.regulations.gov. Follow the 
instructions for submitting comments. Alternatively, interested persons 
may submit comments, identified by docket number EERE-2021-BT-DET-0034, 
via email to <a href="/cdn-cgi/l/email-protection#094a667f6c7b6c6d4e687a597b666d7c6a7d7a3b393b384d4c5d39393a3d496c6c276d666c276e667f"><span class="__cf_email__" data-cfemail="3c7f534a594e59587b5d4f6c4e5358495f484f0e0c0e0d7879680c0c0f087c595912585359125b534a">[email protected]</span></a>. Include docket 
number EERE-2021-BT-DET-0034 in the subject line of the message.
    No telefacsimiles (``faxes'') will be accepted. For detailed 
instructions on submitting comments and additional information on this 
process, see section IV of this document.
    Although DOE has routinely accepted public comment submissions 
through a variety of mechanisms, including postal mail and hand 
delivery/courier, the Department has found it necessary to make 
temporary modifications to the comment submission process in light of 
the ongoing coronavirus 2019 (``COVID-19'') pandemic. DOE is currently 
suspending receipt of public comments via postal mail and hand 
delivery/courier. If a commenter finds that this change poses an undue 
hardship, please contact Appliance Standards Program staff at (202) 
586-1445 to discuss the need for alternative arrangements. Once the 
COVID-19 pandemic health emergency is resolved, DOE anticipates 
resuming all of its regular options for public comment submission, 
including postal mail and hand delivery/courier.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. 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.
    The docket web page can be found at www.regulations.gov/docket/EERE-2021-BT-DET-0034.
    The docket web page contains instructions on how to access all 
documents, including public comments, in the docket. See section VI, 
``Public Participation,'' for further information on how to submit 
comments through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: 
    Ms. Julia Hegarty, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Email: 
<a href="/cdn-cgi/l/email-protection#f8b98888949199969b9dab8c99969c998a9c8ba98d9d8b8c9197968bb89d9dd69c979dd69f978e"><span class="__cf_email__" data-cfemail="c081b0b0aca9a1aea3a593b4a1aea4a1b2a4b391b5a5b3b4a9afaeb380a5a5eea4afa5eea7afb6">[email protected]</span></a>.
    Mr. Peter Cochran, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. 
Telephone: (202) 586-9496. Email: <a href="/cdn-cgi/l/email-protection#86d6e3f2e3f4a8c5e9e5eef4e7e8c6eef7a8e2e9e3a8e1e9f0"><span class="__cf_email__" data-cfemail="2171445544530f624e424953404f6149500f454e440f464e57">[email protected]</span></a>.
    For further information on how to submit a comment or review other 
public comments and the docket contact the Appliance and Equipment 
Standards Program staff at (202) 287-1445 or by email: 
<a href="/cdn-cgi/l/email-protection#135263637f7a727d70764067727d777261776042667660677a7c7d605376763d777c763d747c65"><span class="__cf_email__" data-cfemail="377647475b5e5659545264435659535645534466425244435e5859447752521953585219505841">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Rulemaking History
    A. April 2010 Final Rule
    B. November 2011 Final Rule
    C. February 2013 Court Decision
    D. December 2013 Coverage Determination
III. Current Rulemaking Process
IV. Scope of Coverage
    A. Existing Classifications in ANSI Standards
    B. Proposed Scope of Coverage
V. Evaluation of Miscellaneous Gas Products as a Covered Product 
Subject to Energy Conservation Standards
    A. Coverage Necessary or Appropriate To Carry Out Purposes of 
EPCA
    B. Average Annual Per-Household Energy Use
    C. Preliminary Determination
VI. 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
    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 of 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review
VII. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comments
VIII. Approval of the Office of the Secretary

I. Statutory Authority

    EPCA \1\ authorizes DOE to regulate the energy efficiency of a 
number of consumer products and certain industrial equipment. (42 
U.S.C. 6291-6317) Title III, Part B \2\ of EPCA established the Energy 
Conservation Program for Consumer Products Other Than Automobiles, 
which sets forth a variety of provisions designed to improve energy 
efficiency for certain

[[Page 6787]]

consumer products, referred to generally as ``covered products.'' \3\ 
In addition to specifying a list of consumer products that are covered 
products, EPCA authorizes the Secretary of Energy to classify 
additional types of consumer products as covered products. EPCA defines 
a ``consumer product'' in relevant part as any article (other than an 
automobile) of a type--(A) which in operation consumes, or is designed 
to consume, energy; and (B) which, to any significant extent, is 
distributed in commerce for personal use or consumption by individuals; 
without regard to whether such article of such type is in fact 
distributed in commerce for personal use or consumption by an 
individual.\4\ (42 U.S.C. 6291(a)(1)) For a given consumer product to 
be classified as a covered product, the Secretary must determine that:
---------------------------------------------------------------------------

    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
    \3\ The enumerated list of covered products is at 42 U.S.C. 
6292(a)(1)-(19).
    \4\ As such, in considering the potential scope of coverage, DOE 
does not consider whether an individual product is distributed in 
commerce for residential or commercial use, but whether it is of a 
type of product distributed in commerce for residential use.

    (1) Classifying the product as a covered product 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 kilowatt-hours (``kWh'') (or its 
British thermal unit (``Btu'') equivalent) per year. (42 U.S.C. 
6292(b)(1)) \5\
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    \5\ DOE has defined ``household'' to mean an entity consisting 
of either an individual, a family, or a group of unrelated 
individuals, who reside in a particular housing unit. For the 
purpose of the definition:
    <bullet> Group quarters means living quarters that are occupied 
by an institutional group of 10 or more unrelated persons, such as a 
nursing home, military barracks, halfway house, college dormitory, 
fraternity or sorority house, convent, shelter, jail or correctional 
institution.
    <bullet> Housing unit means a house, an apartment, a group of 
rooms, or a single room occupied as separate living quarters, but 
does not include group quarters.
    <bullet> Separate living quarters means living quarters:
    [cir] To which the occupants have access either:
    [ssquf] Directly from outside of the building; or
    [ssquf] Through a common hall that is accessible to other living 
quarters and that does not go through someone else's living 
quarters; and
    [cir] Occupied by one or more persons who live and eat 
separately from occupant(s) of other living quarters, if any, in the 
same building. 10 CFR 430.2.

    When attempting to cover additional consumer product types, DOE 
must first determine whether these criteria from 42 U.S.C. 6292(b)(1) 
are met. Once a determination is made, the Secretary may prescribe test 
procedures to measure the energy efficiency or energy use of such 
product. (42 U.S.C. 6293(a)(1)(B)) Furthermore, once a product is 
determined to be a covered product, the Secretary may set standards for 
such product, subject to the provisions in 42 U.S.C. 6295(o) and (p), 
provided that DOE determines that four additional criteria at 42 U.S.C. 
6295(l) have been met. Specifically, 42 U.S.C. 6295(l) requires the 
---------------------------------------------------------------------------
Secretary to determine that:

    (1) The average household energy use of the products has 
exceeded 150 kWh per household for a 12-month period;
    (2) The aggregate 12-month energy use of the products has 
exceeded 4,200 gigawatt-hours;
    (3) Substantial improvement in energy efficiency of products of 
such type is technologically feasible; and
    (4) Application of a labeling rule under 42 U.S.C. 6294 is not 
likely 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))

II. Rulemaking History

A. April 2010 Final Rule

    On April 16, 2010, DOE published a final rule in the Federal 
Register, which, in relevant part, promulgated definitions and energy 
conservation standards for certain direct heating equipment, i.e., 
vented gas hearth products. 75 FR 20111 (``April 2010 final rule'').\6\ 
In the April 2010 final rule, DOE concluded that vented hearth 
products--which were described as including gas-fired products such as 
fireplaces, fireplace inserts, stoves, and log sets that typically 
include aesthetic features and that provide space heating--meet the 
definition of ``vented home heating equipment.'' Id. 75 FR 20128. In 
the April 2010 final rule, DOE also adopted a definition of ``vented 
hearth heater'' as 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. Those 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. Id. 75 FR 
20130.
---------------------------------------------------------------------------

    \6\ A correction to the April 2010 final rule was published on 
April 27, 2010, to correct a date that is not relevant to this 
discussion. 75 FR 21981.
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B. November 2011 Final Rule

    On November 18, 2011, DOE published a final rule that amended the 
definition of vented hearth heater, in relevant part, by removing the 
maximum capacity threshold to distinguish vented hearth heaters from 
purely decorative heaters and adding other criteria in its place to 
determine such differentiation. 76 FR 71836 (``November 2011 final 
rule''). These criteria included specific types of hearth products, 
safety standard certifications, labeling, and prescriptive elements 
(i.e., sold without a thermostat and without a standing pilot light). 
Id. 76 FR 71859. The November 2011 final rule defined a vented hearth 
heater as 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:
    <bullet> Vented gas log sets; and
    <bullet> Vented gas hearth products that meet all of the following 
four criteria:
    [cir] Certified to American National Standards Institute (``ANSI'') 
Z21.50,\7\ but not to ANSI Z21.88; \8\
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    \7\ ANSI Z21.50/CSA 2.22, ``Vented Decorative Gas Appliances'' 
is available at: webstore.ansi.org/standards/csa/ansiz21502016csa22.
    \8\ ANSI Z21.88/CSA 2.33, ``Vented Gas Fireplace Heaters'' is 
available at: webstore.ansi.org/Standards/CSA/CSAANSIZ218819332019.
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    [cir] Sold without a thermostat and with a warranty provision 
expressly voiding all manufacturer warranties in the event the product 
is used with a thermostat;
    [cir] 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
    [cir] With respect to products sold after January 1, 2015, not 
equipped with a standing pilot light or other continuously-burning 
ignition source.
    Id. at 76 FR 71859.

C. February 2013 Court Decision

    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 final rule and November 
2011 final rule as those rules pertained to vented gas hearth products. 
Statement of Issues to Be Raised, Hearth, Patio & Barbecue Association 
v. Department of Energy, et

[[Page 6788]]

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). The Court held that the phrase ``vented hearth heater'' did not 
encompass decorative fireplaces as that term is traditionally 
understood, vacated the entire statutory definition of ``vented hearth 
heater,'' and remanded for DOE to interpret the challenged provisions 
consistent with the court's opinion. Id. at 509. On July 29, 2014, DOE 
published a final rule amending the relevant portions of its regulation 
to reflect the Court's decision to vacate the regulatory definition of 
``vented hearth heater'' (and by implication, the associated energy 
conservation standards). 79 FR 43927.

D. December 2013 Coverage Determination

    On December 31, 2013, DOE published a proposed determination of 
coverage for hearth products. 78 FR 79638 (``December 2013 NOPD''). DOE 
described hearth products as gas-fired equipment that provide space 
heating and/or provide an aesthetic appeal to the living space. Id. 78 
FR 79639. DOE proposed to define ``hearth product'' as a gas-fired 
appliance that simulates a solid-fueled fireplace or presents a flame 
patterns (for aesthetics or other purpose) and that may provide space 
heating directly to the space in which it is installed, and provided 
examples of products meeting this definition, including vented 
decorative hearth products, vented heater hearth products, vented gas 
logs, gas stoves, outdoor hearth products, and ventless hearth 
products. Id. 78 FR 79640. DOE stated it had 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. Id. On February 9, 2015, DOE 
published a NOPR proposing energy conservation standards for hearth 
products. 80 FR 7082 (``February 2015 NOPR''). On March 31, 2017, DOE 
withdrew the December 2013 NOPD \9\ in the bi-annual publication of the 
DOE Regulatory Agenda.\10\
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    \9\ Withdrawal of the December 2013 NOPD also resulted in the 
withdrawal of the February 2015 NOPR.
    \10\ Past publications of DOE's Regulatory Agenda can be found 
at: resources.regulations.gov/public/component/main.
---------------------------------------------------------------------------

    On further consideration of the Court's opinion, DOE believes that 
DOE was overly broad in discussion of the Court's holding in the 
context of vented hearth heaters in the withdrawn December 2013 NOPD. 
In that vented hearth heaters provide space heating, classifying vented 
hearth heaters as vented home heating equipment would be consistent 
with the Court's opinion. (See the Court's explanation that decorative 
fireplaces are outside the scope of direct heating equipment and that 
the phrase ``vented hearth heater'' did not encompass decorative 
fireplaces as that term is traditionally understood. (706 F.3d 499, 
505, 509)) Therefore, although there are not currently energy 
conservation standards for vented hearth heaters, these products are 
appropriately covered as vented home heating equipment (and direct 
heating equipment (``DHE'')). Because vented hearth heaters are already 
covered as vented home heating equipment under EPCA, such products are 
not part of this proposed coverage determination. To the extent DOE 
considers energy conservation standards for venter hearth heaters, it 
will do so in a separate rulemaking.

III. Current Rulemaking Process

    This proposed determination of coverage addresses miscellaneous gas 
products, which are consumer products comprising: (1) Those hearth 
products that are not DHE (i.e., those hearth products that are indoor 
or outdoor decorative hearth products) and (2) outdoor heaters. If, 
after public comment, DOE issues a final determination of coverage for 
miscellaneous gas products, DOE may prescribe both test procedures and 
energy conservation standards for these products. DOE will publish a 
final decision on coverage as a separate notice, an action that will be 
completed prior to the initiation of any test procedure or energy 
conservation standards rulemaking. 10 CFR part 430, subpart C, appendix 
A, section 5(c). If DOE determines that coverage is warranted, DOE will 
proceed with its typical rulemaking process for both test procedures 
and standards. Id. DOE is not proposing test procedures or energy 
conservation standards as part of this proposed determination. If DOE 
proceeds with a rulemaking to establish energy conservation standards, 
DOE would determine if miscellaneous gas products satisfy the 
provisions of 42 U.S.C. 6295(l)(1) during the course of that 
rulemaking.

IV. Scope of Coverage

    Miscellaneous gas products as considered in this NOPD are comprised 
of decorative hearth products and outdoor heaters.
    For the purpose of this analysis, DOE evaluated decorative hearth 
products that are gas-fired products that simulate a solid-fuel 
fireplace and/or present an aesthetic flame pattern, and that are not 
designed to heat the space in which they are used. A wide range of 
decorative hearth products are available on the market, including, for 
example, gas log sets, gas fire pits, gas stoves, and gas fireplace 
inserts. Decorative hearth products may be used indoors or outdoors.
    For the purpose of this analysis, DOE evaluated outdoor heaters 
that are gas-fired products that heat the area proximate to the heater 
and that are designed to be used outdoors.

A. Existing Classifications in ANSI Standards

    To help inform its proposed scope of coverage, DOE reviewed 
existing classifications of miscellaneous gas products (i.e., hearth 
products and outdoor heaters) in various ANSI standards. Table III.1 
presents the ANSI standards that DOE identified which cover the various 
types of decorative hearth products and outdoor heaters on the market.

 Table III.1--ANSI Standards Covering the Various Types of Miscellaneous
                              Gas Products
------------------------------------------------------------------------
       ANSI standard                            Title
------------------------------------------------------------------------
Z21.50....................  Vented Decorative Gas Appliances.
Z21.60....................  Decorative Gas Appliances for Installation
                             in Solid-Fuel Burning Fireplaces.
Z21.84....................  Standard for Manually Lighted, Natural Gas,
                             Decorative Gas Appliances for Installation
                             in Solid-Fuel Burning Fireplaces.

[[Page 6789]]

 
Z21.97....................  Outdoor Decorative Gas Appliances.
Z83.26....................  Gas-Fired Outdoor Infrared Patio Heaters.
------------------------------------------------------------------------

    Issue 1: DOE requests comment on whether there are other industry 
standards that should be reviewed for this coverage determination for 
decorative hearth products and outdoor heaters.
    ANSI Z21.50 covers vented decorative gas appliances with input 
ratings up to 400,000 Btu/h, that do not have a thermostat and are not 
a source of heat. In covering vented decorative gas appliances, ANSI 
Z21.50 provides the following definitions relevant to defining the 
scope of a decorative appliance:

    Decorative gas appliance--an appliance whose only function lies 
in the aesthetic effect of the flame. A vented decorative gas 
appliance may be freestanding, recessed, zero clearance, or a gas 
fireplace insert, and is further defined as:
    Direct vent decorative gas appliance--a system consisting of (1) 
an appliance for indoor installation that allows the view of flames 
and provides the simulation of a solid fuel fireplace; (2) 
combustion air connections between the appliance and the vent-air 
intake terminal; (3) flue gas connections between the appliance and 
the vent-air intake terminal; and (4) a vent-air intake terminal for 
installation outdoors, constructed such that all air for combustion 
is obtained from the outdoor atmosphere and all flue gases are 
discharged to the outdoor atmosphere. All of these components are 
supplied by the manufacturer.
    Fan type vented decorative gas appliance--a vented decorative 
gas appliance equipped with an integral circulating air fan, the 
operation of which is necessary for satisfactory appliance 
performance.
    Gas fireplace insert--a vented decorative gas appliance designed 
to be fully or partially installed in a solid-fuel burning 
fireplace.
    Gravity vented decorative gas appliance--a vented decorative gas 
appliance consisting of an appliance constructed so all air for 
combustion is obtained from the room in which the appliance is 
installed and all flue gases are discharged to the outdoor 
atmosphere. The discharge of flue gases is by gravity forces.
    Power vented decorative gas appliance--a vented decorative gas 
appliance consisting of an appliance constructed so all air for 
combustion is obtained from the room in which it is installed and 
all flue gases are discharged to the outdoor atmosphere. The 
discharge of flue gases is by mechanical means.
    Gas stove--a vented gas appliance designed to be freestanding.

    ANSI Z21.60 covers decorative gas appliances for installation in 
solid-fuel burning fireplaces with input ratings up to 400,000 Btu/h 
that do not have a thermostat. ANSI Z21.60 provides the following 
definitions relevant to defining the scope of decorative gas appliances 
for installation in solid-fuel burning fireplaces:

    Decorative gas appliance--a self-contained, free-standing, gas-
burning appliance designed for installation only in a solid-fuel 
burning fireplace and whose primary function lies in the aesthetic 
effect of the flame.
    Coal basket--an open-flame type appliance consisting of a metal 
basket filled with simulated coals, which gives the appearance of a 
coal fire when in operation.
    Gas log--an open-flame type appliance consisting of a metal 
frame or base supporting simulated logs.

    ANSI Z21.84 covers manually lighted, natural gas, decorative gas 
appliances for installation in solid-fuel burning fireplaces, that are 
not thermostatically controlled, and with input ratings up to 90,000 
Btu/h. These appliances do not incorporate a pilot burner or an 
automatic gas ignition system. The main burner(s) is intended to be 
lighted by hand each time the appliance is used. ANSI Z21.84 provides 
the following definitions relevant to defining the scope of manually 
lit decorative gas appliances for installation in solid-fuel burning 
fireplaces:

    Decorative appliance--a self-contained, freestanding, gas-
burning appliance designed for installation only in a solid-fuel 
burning fireplace and whose function primarily lies in the aesthetic 
effect of the flame.
    Coal basket--an open flame type appliance consisting of a metal 
basket filled with simulated coals, which gives the appearance of a 
coal fire when in operation.
    Gas log--an open flame type appliance consisting of a metal 
frame or base supporting simulated logs.

    ANSI Z21.97 covers decorative gas appliances for outdoor 
installation and are classified as one of the following: Portable, 
stationary, or built-in. Thermostatically controlled appliances are not 
within the scope of ANSI Z21.97. ANSI Z21.97 provides the following 
definitions relevant to defining the scope of decorative gas appliances 
for outdoor installation:

    Built-in--appliances that are mounted or attached to a permanent 
structure and not intended to be moved.
    Outdoor decorative gas appliance--an appliance for use in 
outdoor spaces only, which does not incorporate a venting system, 
and whose primary function lies in the aesthetic effect of the 
flame.
    Outdoor spaces--an appliance is considered to be outdoors if 
installed with shelter no more inclusive than:
    (a) With walls on all sides, but with no overhead cover;
    (b) within a partial enclosure that includes an overhead cover 
and no more than two sidewalls. The sidewalls may be parallel, as in 
a breezeway, or at right angles to each other; or
    (c) within a partial enclosure that includes an overhead cover 
and three sidewalls, as long as 30 percent or more of the horizontal 
periphery of the enclosure is permanently open.
    Stationary--appliances that are not equipped with wheels, 
casters, or other means of easy movement. These appliances are only 
moved by lifting and carrying.

    ANSI Z83.26 covers gas-fired outdoor infrared patio heaters 
intended for installation in and heating of residential or non-
residential spaces. Infrared patio heaters may be suspended overhead, 
angle-mounted overhead, wall-mounted, floor-mounted, or for tabletop 
use. ANSI Z83.26 provides the following definitions relevant to 
defining the scope of infrared patio heaters:

    Infrared patio heater--a heater which directs a substantial 
amount of its energy output in the form of infrared energy into the 
outdoor area to be heated.
    Outdoor spaces--for the purpose of this Standard, an appliance 
is considered to be outdoors if installed with shelter no more 
inclusive than:
    (a) With walls on all sides, but with no overhead cover;
    (b) within a partial enclosure that includes an overhead cover 
and no more than two sidewalls. The sidewalls may be parallel, as in 
a breezeway, or at right angles to each other.
    (c) within a partial enclosure that includes an overhead cover 
and three sidewalls, as long as 30 percent or more of the horizontal 
periphery of the enclosure is permanently open.

    Portable infrared patio heater--a free standing, infrared heater 
designed with the intent of being moved from one outdoor location to 
another.

[[Page 6790]]

B. Proposed Scope of Coverage

    As discussed, DOE is proposing coverage of miscellaneous gas 
products, which are comprised of decorative hearth products and outdoor 
heaters.
    In considering the scope of ``decorative hearth product,'' DOE 
considered the identified ANSI standards (i.e., ANSI Z21.50, ANSI 
Z21.60, ANSI Z21.84, ANSI Z21.97, and ANSI Z83.24), as well as DOE's 
previously adopted and proposed definitions related to hearth products. 
The considered scope of ``decorative hearth product'' presented below 
combines pertinent elements of the previously proposed definition for 
``hearth product'' included in the December 2013 NOPD and the February 
2015 NOPR, and the definition of a ``decorative gas appliance'' in ANSI 
Z21.50 to describe a decorative hearth product for the purposes of 
coverage in this NOPD. DOE considered decorative hearth products to 
include indoor and outdoor products.
    DOE notes that the scopes of the relevant ANSI standards for 
decorative products exclude products that are equipped with a 
thermostat. Consistent with the industry standards, DOE has tentatively 
determined that the presence of a thermostat indicates that a product 
is designed to provide heat rather than being purely decorative. Thus, 
the proposed scope of decorative hearth products excludes those 
products equipped with a thermostat.
    The proposed definition for a ``decorative hearth product'' would 
be a gas-fired appliance that:
    <bullet> Simulates a solid-fueled fireplace or presents a flame 
pattern;
    <bullet> Includes products designed for indoor use, outdoor use, or 
either indoor or outdoor use;
    <bullet> Is not designed to be operated with a thermostat;
    <bullet> For products designed for indoor use, is not designed to 
provide space heating to the space in which it is installed; and
    <bullet> For products designed for outdoor use, is not designed to 
provide heat proximate to the unit.
    Issue 2: DOE requests comment on whether the presence of a 
thermostat would indicate that a hearth product is intended to provide 
heat to the space in which it is installed rather than being purely 
decorative.
    DOE also considered inclusion of outdoor heaters in the proposed 
scope of the coverage determination. DOE understands outdoor heaters to 
be products that are used for heating outdoor areas. DOE proposes to 
define an outdoor heater as a gas-fired appliance designed for use in 
outdoor spaces only, and which is designed to provide heat proximate to 
the unit.
    Issue 3: DOE seeks feedback from interested parties on its proposed 
definition for ``outdoor heater.''
    Issue 4: DOE requests comment on whether outdoor hearth products 
exist that are designed to provide a large amount of heat as their 
primary function, and thus would meet the definition of outdoor heater.
    Issue 5: DOE seeks feedback from interested parties on it proposed 
scope of coverage of miscellaneous gas products, which would include 
decorative hearth products and outdoor heaters.
    As evaluated in this proposed coverage determination DOE considers 
miscellaneous gas products to include products using natural gas or 
liquified petroleum gas (``propane''). As propane is a type of gas, DOE 
tentatively determined it is appropriate to include propane products in 
the scope of this proposed coverage determination.\11\ Were DOE to 
finalize the coverage determination as proposed, DOE would consider 
whether propane fueled products warrant different treatment under test 
procedures and energy conservation standards, should such test 
procedures and standards be established.
---------------------------------------------------------------------------

    \11\ DOE defines the term ``gas'' to mean either natural gas or 
propane. 10 CFR 430.2.
---------------------------------------------------------------------------

    Issue 6: DOE requests comment on whether propane-fueled decorative 
hearth products and outdoor heaters should be within the scope of this 
coverage determination.
    DOE was not able to identify an ANSI standard which addresses 
decorative unvented gas hearth products.
    DOE requests comment on whether unvented hearth products designed 
for indoor installation exist that are designed to be purely 
decorative, or if an unvented hearth product would always provide 
enough heat to the space in which it is installed to be classified as 
an unvented heater.\12\ If such products exist, DOE seeks information 
on the features or characteristics that differentiate them from 
unvented heaters.
---------------------------------------------------------------------------

    \12\ DOE defines an ``unvented gas heater'' as an unvented, 
self-contained, free-standing, nonrecessed gas-burning appliance 
which furnishes warm air by gravity or fan circulation. 10 CFR 
430.2. An unvented gas heater is a type of unvented home heating 
equipment and covered as direct heating equipment.
---------------------------------------------------------------------------

V. Evaluation of Miscellaneous Gas Products as a Covered Product 
Subject to Energy Conservation Standards

    As an initial step, DOE evaluated whether miscellaneous gas 
products, which are comprised of decorative hearth products and outdoor 
heaters, are ``consumer products'' under EPCA. As discussed in section 
I of this document, a consumer product is any article (other than an 
automobile) of a type--(A) which in operation consumes, or is designed 
to consume energy; and (B) which, to any significant extent, is 
distributed in commerce for personal use or consumption by individuals; 
without regard to whether such article of such type is in fact 
distributed in commerce for personal use or consumption by an 
individual. (42 U.S.C. 6291(a)(1)) Miscellaneous gas products consume 
energy during operation and are distributed in commerce for personal 
use by individuals. Therefore, DOE has determined that miscellaneous 
gas products are consumer products.
    The following sections describe DOE's preliminary evaluation of 
whether miscellaneous gas products fulfill the criteria for being added 
as covered products 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

    DOE has preliminarily determined that coverage of miscellaneous gas 
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. 
6291(4)-(5))

    DOE estimates that annual shipments of miscellaneous gas products 
have averaged approximately 190,000 units per year from 2016 to 
2020.\13\ DOE estimates that the aggregate national

[[Page 6791]]

energy use of decorative hearth products is 0.0135 quadrillion British 
thermal units (``quads'') (4.0 Terawatt-hours (``TWh'')),\14\ and that 
the aggregate national energy use of outdoor heaters is estimated to be 
0.0007 quads (0.2 TWh).\15\ DOE estimates that the aggregate national 
energy use of decorative hearth products and outdoor heaters, 
comprising miscellaneous gas products, is 0.0143 quads (4.2 TWh). 
Coverage of miscellaneous gas products would further the conservation 
of energy supplies through the regulation of energy efficiency. 
Therefore, DOE has tentatively determined that coverage of 
miscellaneous gas 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).
---------------------------------------------------------------------------

    \13\ This estimate was developed by scaling the hearth product 
shipments found on page 9-2 of Chapter 9 in the February 2015 NOPR 
Technical Support Document to the total gas appliance shipments from 
2016 through 2020 from HPBA (www.hpba.org/Resources/Annual-Historical-Hearth-Shipments). Manufacturer interviews conducted for 
the February 2015 NOPR analysis were used to develop the market 
share of decorative hearths (39%) and outdoor heaters (3%) from 
total shipments. The market shares were assumed to remain constant 
from 2016-2020.
    \14\ The aggregate national energy use of decorative hearths is 
based on energy use estimates developed in section V.B, along with 
historical shipments from HPBA (www.hpba.org/Resources/Annual-Historical-Hearth-Shipments) and the 2015 NOPR National Impact 
Analysis, of which 39 percent are assumed to be decorative hearths, 
and a 15-year hearth lifetime which was used for all products in the 
2015 Hearth Products NOPR (U.S. Department of Energy. Technical 
Support Document: Energy Conservation Programs for Consumer 
Products, Energy Conservation Standards for Hearth Products. Chapter 
8: Life-Cycle-Cost Analysis. January 30, 2015. Available at: 
www.regulations.gov/document/EERE-2014-BT-STD-0036-0002).
    \15\ The aggregate national energy use of outdoor heaters is 
based on energy use estimates developed in section V.B of this 
document, along with historical shipments from the 2015 NOPR 
National Impact Analysis, which assumed that ratio of patio heaters 
shipments to HPBA hearth shipments was 3 percent, and a 15-year 
hearth lifetime which was used for all products in the 2015 Hearth 
Products NOPR (U.S. Department of Energy. Technical Support 
Document: Energy Conservation Programs for Consumer Products, Energy 
Conservation Standards for Hearth Products. Chapter 8: Life-Cycle-
Cost Analysis. January 30, 2015. Available at: www.regulations.gov/document/EERE-2014-BT-STD-0036-0002.)
---------------------------------------------------------------------------

B. Average Annual Per-Household Energy Use

    DOE estimated average per-household energy use for decorative 
hearth products based on a 2017 survey by the Lawrence Berkeley 
National Laboratory (``2017 hearth survey'') <SUP>16 17</SUP> and the 
technical support document from the February 2015 NOPR.\18\ In the 2017 
hearth survey, products that were identified as ``decorative only'' 
represented 6 percent of the surveyed installations, with the main 
burner operating for 17 hours per year and the standing pilot operating 
for 4,919 hours per year. Products identified as ``mostly decorative'' 
represented 32 percent of installations, with the main burner operating 
for 50 hours per year and the standing pilot operating for 3,500 hours 
per year.\19\ The identification of a product as ``decorative only'' or 
``mostly decorative'' was based on the respondents' answer to a survey 
question about whether the product was for decorative or heating 
purposes; it did not necessarily reflect the manufacturer's design.\20\
---------------------------------------------------------------------------

    \16\ Siap, David. Willem, Henry. Price, Sarah. Yang, Hung-Chia. 
Lekov, Alex. Survey of Hearth Products in U.S. Homes. Energy 
Analysis and Environmental Impacts Division, Lawrence Berkeley 
National Laboratory. June 2017. eta.lbl.gov/publications/survey-hearth-products-us-homes.
    \17\ In the 2017 Hearth Survey, hearths were defined as: Gas or 
electric fireplaces, gas log sets, stoves, and outdoor units. DOE 
assumed the substantive majority of outdoor units were ``outdoor 
decorative hearths'' as proposed to be defined in section IV.B of 
this document.
    \18\ U.S. Department of Energy. Technical Support Document: 
Energy Conservation Programs for Consumer Products, Energy 
Conservation Standards for Hearth Products. Chapter 7: Energy Use 
Analysis. January 30, 2015. www.regulations.gov/document/EERE-2014-BT-STD-0036-0002.
    \19\ Siap, David. Willem, Henry. Price, Sarah. Yang, Hung-Chia. 
Lekov, Alex. Survey of Hearth Products in U.S. Homes. Energy 
Analysis and Environmental Impacts Division, Lawrence Berkeley 
National Laboratory. June 2017. eta.lbl.gov/publications/survey-hearth-products-us-homes.
    \20\ The decorative only and mostly decorative product 
categories include both indoor and outdoor units.
---------------------------------------------------------------------------

    For this NOPD, DOE assumed that the operating characteristics of 
``decorative only'' and ``mostly decorative'' products from the 2017 
survey would represent the market for decorative hearth products as 
proposed to be defined. Ignition systems in hearth products are 
typically either standing pilots, where the pilot flame is continuously 
lit unless turned off by the user; intermittent systems, where the 
pilot is lit using an electric starter only when there is a need for a 
flame; or match lit, when the main burner is lit by a match. To account 
for the energy use of the various ignition systems of decorative 
hearths, DOE relied on market share data of the ignition systems for 
gas fireplaces and gas log sets from the 2017 hearth survey: 71 percent 
of fireplaces and log sets use a standing pilot, 18 percent use 
intermittent ignition, and 12 percent are match lit.\21\ In the 
February 2015 NOPR, DOE used an input capacity of 35,000 Btu/h to 
represent decorative fireplace main burners and 1,000 Btu/h to 
represent standing pilot light input capacity, and calculated annual 
national intermittent ignition electricity use to be 29 kWh/yr.\22\ For 
this NOPD, DOE calculated the per-household weighted average ignition 
energy use to be 2.7 million British thermal units per year (``MMBtu/
yr'') \23\ and the weighted main burner energy use to be 1.5 MMBtu/yr, 
for a total decorative hearth energy use per household of 4.2 MMBtu/yr 
(1,230 kWh/yr).
---------------------------------------------------------------------------

    \21\ Siap, David. Willem, Henry. Price, Sarah. Yang, Hung-Chia. 
Lekov, Alex. Survey of Hearth Products in U.S. Homes. Energy 
Analysis and Environmental Impacts Division, Lawrence Berkeley 
National Laboratory. June 2017. eta.lbl.gov/publications/survey-hearth-products-us-homes.
    \22\ U.S. Department of Energy. Technical Support Document: 
Energy Conservation Programs for Consumer Products, Energy 
Conservation Standards for Hearth Products. Chapter 7: Energy Use 
Analysis. January 30, 2015. www.regulations.gov/document/EERE-2014-BT-STD-0036-0002.
    \23\ Decorative hearths with match lit ignition were assumed to 
use zero ignition energy.
---------------------------------------------------------------------------

    The 2017 hearth survey did not provide the operating 
characteristics of outdoor heaters and DOE was unable to find other 
data sources for the operating characteristics of outdoor heaters. In 
lieu of such data, DOE estimates that the burner operating hours for 
outdoor heaters would be the same as those for decorative hearths (both 
indoor and outdoor).\24\ DOE notes that in the December 2013 coverage 
determination, the burner operating hours were the same for indoor 
decorative products and outdoor decorative products and outdoor 
heaters. 78 FR 79638, 79640.
---------------------------------------------------------------------------

    \24\ The 2017 survey did provide the operating characteristics 
for hearth heaters; however, DOE believes the outdoor heaters would 
not operate in the same manner as indoor units providing primary or 
secondary space heating.
---------------------------------------------------------------------------

    Issue 7: DOE requests comment on the assumption that burner 
operating hours for outdoor heaters are similar to the main burner 
operating hours of decorative hearths. In addition, DOE requests any 
data available regarding the operating hours of outdoor heaters.
    The 2017 hearth survey provided a breakdown of the ignition systems 
used in outdoor units, as well as the breakdown of standing pilot 
operation: 48 percent use a standing pilot, 15 percent use intermittent 
ignition, and 37 percent are match lit. Of the standing pilots, 54 
percent remain on all-year, 5 percent are turned off throughout the 
summer, and 41 percent are turned off when not in use.
    As outdoor heaters are different products than outdoor decorative 
hearths, DOE assumed that there would be less standing pilot use for 
outdoor heaters. An outdoor heater is likely used only in colder 
weather to provide warmth to people outside rather than across all 
seasons like a decorative outdoor hearth; therefore, DOE reduced the 
share of standing pilots as well as the amount of time a standing pilot 
would operate in a year. DOE adjusted the above percentages so that 
standing pilot usage in heaters was 50 percent that of outdoor units in 
the 2017 hearth survey. The breakdown of outdoor heater ignition 
systems was calculated to be 24 percent standing pilot, 29 percent 
intermittent ignition, and 47 percent match lit. DOE also reduced the 
amount of standing pilots that operate

[[Page 6792]]

all year by 50 percent for outdoor heaters. Of the standing pilots for 
outdoor heaters, DOE estimated 27 percent remain on all year, 11 
percent are turned off throughout the summer, and 62 percent are off 
when not in use.
    Issue 8: DOE requests feedback on the breakdown of ignition systems 
for outdoor heaters as well as any data on standing pilot operating 
hours for outdoor heaters.
    In the February 2015 NOPR, DOE used an input capacity of 50,000 
Btu/h to represent the main burners of outdoor products \25\ and 1,000 
Btu/h to represent the standing pilots, and calculated annual national 
intermittent ignition electricity use to be 29 kWh/yr.\26\ For this 
NOPD, DOE calculated the per-household weighted average ignition energy 
of use of outdoor heaters to be 0.7 MMBtu/yr and the weighted burner 
energy use to be 2.2 MMBtu/yr, for total outdoor heater household 
energy use of 2.9 MMBtu/yr (859 kWh/yr). While DOE recognizes that the 
operation of outdoor heaters may vary from that of decorative and 
outdoor units from the 2017 hearth survey and outdoor products in the 
February 2015 NOPR, the conservative energy use estimate for outdoor 
heaters is well above the coverage threshold.
---------------------------------------------------------------------------

    \25\ The outdoor products addressed in the February 2015 NOPR 
were outdoor fireplaces, outdoor fireplace inserts, outdoor fire 
pits, outdoor gas lamps, and patio heaters.
    \26\ U.S. Department of Energy. Technical Support Document: 
Energy Conservation Programs for Consumer Products, Energy 
Conservation Standards for Hearth Products. Chapter 7: Energy Use 
Analysis. January 30, 2015. www.regulations.gov/document/EERE-2014-BT-STD-0036-0002.
---------------------------------------------------------------------------

    DOE estimates that decorative hearths account for 93 percent of the 
miscellaneous gas product market and that outdoor heaters account for 7 
percent. DOE calculated the weighted average per-household energy use 
of a miscellaneous gas product to be 4.1 MMBtu/yr (1,211 kWh/yr). 
Therefore, DOE has tentatively determined that the average annual per-
household energy use for miscellaneous gas 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 tentatively determined that 
miscellaneous gas products (comprised of decorative hearth products and 
outdoor heaters) qualify as a covered product under Part A of Title III 
of EPCA, as amended.

C. Proposed Determination

    Based on the foregoing, DOE has tentatively determined that 
classifying miscellaneous gas products, which are comprised of 
decorative hearths and outdoor heaters, as proposed to be defined in 
section IV.B of this document, is necessary and appropriate to carry 
out the purposes of EPCA; and the average annual per-household energy 
use is likely to exceed 100 kWh (or its Btu equivalent) per year for 
miscellaneous gas products. As such, DOE is proposing to determine to 
classify miscellaneous gas products as a covered product under Part A 
of Title III of EPCA, as amended.
    Issue 9: DOE requests comment on whether classifying miscellaneous 
gas products as a covered product is necessary or appropriate to carry 
out the purposes of EPCA.

VI. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    This proposed determination has been determined to be not 
significant for purposes of Executive Order (``E.O.'') 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (Oct. 4, 1993). As a 
result, the Office of Management and Budget (``OMB'') did not review 
this proposed determination.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (``IRFA'') 
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. As required by E.O. 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking'' 67 FR 53461 (Aug. 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 rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's website (energy.gov/gc/office-general-counsel).
    This proposed determination would not establish test procedures or 
energy conservation standards for miscellaneous gas products. If 
adopted, the proposed determination would only positively determine 
that future standards may be warranted and should be explored in an 
energy conservation standards and test procedure rulemaking. Economic 
impacts on small entities would be considered in the context of such 
rulemakings. Therefore, DOE initially concludes that the impacts of the 
proposed determination would not have a ``significant economic impact 
on a substantial number of small entities,'' and that the preparation 
of an IRFA is not warranted. 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

    Manufacturers of covered products must certify to DOE that their 
products comply with any applicable energy conservation standards. To 
certify compliance, manufacturers must first obtain test data for their 
products according to the DOE test procedures, 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. (See generally 10 CFR part 
429) The collection-of-information requirement for the certification 
and recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (``PRA''). This requirement has been approved 
by OMB under OMB control number 1910-1400. Public reporting burden for 
the certification is estimated to average 35 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. As noted previously, this 
proposed determination, if made final, would not establish any testing 
requirements or energy conservation standards for miscellaneous gas 
products.

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this proposed determination in accordance with the 
National Environmental Policy Act (``NEPA'') and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE's regulations include 
a categorical exclusion for rulemakings that are strictly procedural. 
10 CFR part 1021, subpart D, appendix A6. DOE anticipates that this 
rulemaking qualifies for categorical exclusion A6 because it is a 
strictly procedural rulemaking and otherwise meets the requirements for 
application of a categorical exclusion. See 10 CFR

[[Page 6793]]

1021.410. DOE will complete its NEPA review before issuing the final 
determination.

E. Review Under Executive Order 13132

    E.O. 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 that it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed determination 
and has tentatively determined that it would not have a substantial 
direct effects on the States, on the relationship between the national 
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 products that are the subject of this proposed 
determination. 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) Therefore, no further action is required by E.O. 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 E.O. 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, (3) provide a 
clear legal standard for affected conduct rather than a general 
standard, and (4) promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Regarding the review required by section 3(a), 
section 3(b) of E.O. 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 sections 3(a) and 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 proposed determination meets the relevant 
standards of E.O. 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, sec. 201 (codified at 2 U.S.C. 1531). 
For a proposed 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 proposed ``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 them. 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 
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE examined this proposed determination according to UMRA and its 
statement of policy and determined that the proposed determination does 
not contain a Federal intergovernmental mandate, nor is it expected to 
require expenditures of $100 million or more in any one year by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector. As a result, the analytical requirements of UMRA do not apply.

H. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 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 E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15, 
1988), DOE has 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 
of 2001

    Section 515 of the Treasury and General Government Appropriation 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
information quality 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). Pursuant to OMB Memorandum M-19-15, Improving 
Implementation of the Information Quality Act (April 24, 2019), DOE 
published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this NOPD 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

    E.O. 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 the Office of 
Information and Regulatory Affairs (``OIRA'') at 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 or is expected to lead to

[[Page 6794]]

promulgation of a final rule, and that (1) is a significant regulatory 
action under Executive Order 12866, or any successor Executive 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 proposed 
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.
    This proposed regulatory action to classify miscellaneous gas 
products as covered products is not a significant regulatory action 
under Executive Order 12866. Moreover, it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as such by the Administrator of OIRA. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (``OSTP''), issued its Final Information 
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan. 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the Bulletin is to enhance the quality and credibility of 
the Government's scientific information. DOE has determined that the 
analyses conducted for this rulemaking do not constitute ``influential 
scientific information,'' which the Bulletin defines as ``scientific 
information the agency reasonably can determine will have or does have 
a clear and substantial impact on important public policies or private 
sector decisions.'' 70 FR 2667 (Jan. 14, 2005). The analyses were 
subject to pre-dissemination review prior to issuance of this 
rulemaking.

VII. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notification of proposed determination no later than the date provided 
in the DATES section at the beginning of this document. Interested 
parties may submit comments, data, and other information using any of 
the methods described in the ADDRESSES section at the beginning of this 
document.
    Submitting comments via www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
Building Technologies staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment or in any documents attached to your comment. 
Any information that you do not want to be publicly viewable should not 
be included in your comment, nor in any document attached to your 
comment. Otherwise, persons viewing comments will see only first and 
last names, organization names, correspondence containing comments, and 
any documents submitted with the comments.
    Do not submit to www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (``CBI'')). Comments submitted 
through www.regulations.gov cannot be claimed as CBI. Comments received 
through the website will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    Submitting comments via email. Comments and documents submitted via 
email also will be posted to www.regulations.gov. If you do not want 
your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information in a cover letter. Include your first 
and last names, email address, telephone number, and optional mailing 
address. With this instruction followed, the cover letter will not be 
publicly viewable as long as it does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. No faxes will be accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, or text (ASCII) file format. Provide documents that are not 
secured, that are written in English, and that are free of any defects 
or viruses. Documents should not contain special characters or any form 
of encryption and, if possible, they should carry the electronic 
signature of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. 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 via 
email two well-marked 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 the information believed to be confidential deleted. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    It is DOE policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

B. Issues on Which DOE Seeks Comments

    DOE welcomes comments on all aspects of this proposed 
determination. DOE is particularly interested in receiving comments and 
views of interested parties concerning the following issues:

    Issue 1: DOE requests comment on whether there are other 
industry standards that should be reviewed for this coverage 
determination for decorative hearth products and outdoor heaters.

[[Page 6795]]

    Issue 2: DOE requests comment on whether the presence of a 
thermostat would indicate that a hearth product is intended to 
provide heat to the space in which it is installed rather than being 
purely decorative.
    Issue 3: DOE seeks feedback from interested parties on its 
proposed definition for ``outdoor heater.''
    Issue 4: DOE requests comment on whether outdoor hearth products 
exist that are designed to provide a large amount of heat as their 
primary function, and thus would meet the definition of outdoor 
heater.
    Issue 5: DOE seeks feedback from interested parties on it 
proposed scope of coverage of miscellaneous gas products, which 
would include decorative hearth products and outdoor heaters.
    Issue 6: DOE requests comment on whether propane-fueled 
decorative hearth products and outdoor heaters should be within the 
scope of this coverage determination.
    Issue 7: DOE requests comment on whether unvented hearth 
products designed for indoor installation exist that are designed to 
be purely decorative, or if an unvented hearth product would always 
provide enough heat to the space in which it is installed to be 
classified as an unvented heater. If such products exist, DOE seeks 
information on the features or characteristics that differentiate 
them from unvented heaters.
    Issue 8: DOE requests comment on the assumption that burner 
operating hours for outdoor heaters are similar to the main burner 
operating hours of decorative hearths. In addition, DOE requests any 
data available regarding the operating hours of outdoor heaters.
    Issue 9: DOE requests feedback on the breakdown of ignition 
systems for outdoor heaters as well as any data on standing pilot 
operating hours for outdoor heaters.
    Issue 10: DOE requests comment on whether classifying 
miscellaneous gas products as a covered product is necessary or 
appropriate to carry out the purposes of EPCA.

    DOE is interested in receiving views concerning other relevant 
issues that participants believe would affect its ability to establish 
test procedures and energy conservation standards for miscellaneous gas 
products, which include decorative hearths and outdoor heaters.
    After the expiration of the period for submitting written 
statements, DOE will consider all comments and additional information 
that is obtained from interested parties or through further analyses, 
and it will prepare a final determination.

VIII. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
notification of proposed determination.

Signing Authority

    This document of the Department of Energy was signed on January 31, 
2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary 
for Energy Efficiency and Renewable Energy, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on February 1, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2022-02386 Filed 2-4-22; 8:45 am]
BILLING CODE 6450-01-P


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