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.

Proposed Rules Federal Register

6786 

Vol. 87, No. 25 

Monday, February 7, 2022 

1All 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). 

2For editorial reasons, upon codification in the 

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

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. 

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 

CoveredGasProducts2021DET0034@

ee.doe.gov. 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/EERE2021-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: 

ApplianceStandardsQuestions@

ee.doe.gov. 

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: 

Peter.Cochran@hq.doe.gov. 

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: 

ApplianceStandardsQuestions@

ee.doe.gov. 

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 


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3The enumerated list of covered products is at 42 

U.S.C. 6292(a)(1)–(19). 

4As 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. 

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: 

• 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. 

• 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. 

• Separate living quarters means living quarters: 

Æ To which the occupants have access either: 

D Directly from outside of the building; or 

D Through a common hall that is accessible to 

other living quarters and that does not go through 

someone else’s living quarters; and 

Æ 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. 

6A 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. 

7ANSI Z21.50/CSA 2.22, ‘‘Vented Decorative Gas 

Appliances’’ is available at: webstore.ansi.org/ 

standards/csa/ansiz21502016csa22. 

8ANSI Z21.88/CSA 2.33, ‘‘Vented Gas Fireplace 

Heaters’’ is available at: webstore.ansi.org/ 

Standards/CSA/CSAANSIZ218819332019. 

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) 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

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 gigawatthours; 

(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. 

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: 

• Vented gas log sets; and 

• Vented gas hearth products that 

meet all of the following four criteria: 

Æ Certified to American National 

Standards Institute (‘‘ANSI’’) Z21.50,7

but not to ANSI Z21.88; 8

Æ Sold without a thermostat and with 

a warranty provision expressly voiding 

all manufacturer warranties in the event 

the product is used with a thermostat; 

Æ 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 

Æ 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 


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9Withdrawal of the December 2013 NOPD also 

resulted in the withdrawal of the February 2015 

NOPR. 

10Past publications of DOE’s Regulatory Agenda 

can be found at: resources.regulations.gov/public/ 

component/main. 

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

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 gasfired 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. 


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TABLE III.1—ANSI STANDARDS COVERING THE VARIOUS TYPES OF MISCELLANEOUS GAS PRODUCTS—Continued 

ANSI 

standard Title 

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 selfcontained, 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. 


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11 DOE defines the term ‘‘gas’’ to mean either 

natural gas or propane. 10 CFR 430.2. 

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. 

13This 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-HistoricalHearth-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. 

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: 

• Simulates a solid-fueled fireplace or 

presents a flame pattern; 

• Includes products designed for 

indoor use, outdoor use, or either indoor 

or outdoor use; 

• Is not designed to be operated with 

a thermostat; 

• For products designed for indoor 

use, is not designed to provide space 

heating to the space in which it is 

installed; and 

• 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. 

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. 

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 


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14The 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/AnnualHistorical-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). 

15The 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: LifeCycle-Cost Analysis. January 30, 2015. Available at: 

www.regulations.gov/document/EERE-2014-BTSTD-0036-0002.) 

16Siap, 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. 

18U.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. 

19Siap, 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. 

20The decorative only and mostly decorative 

product categories include both indoor and outdoor 

units. 

21Siap, 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. 

22U.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. 

24The 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. 

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). 

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’’) 16 17 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

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). 

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. 

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 


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6792 Federal Register / Vol. 87, No. 25 / Monday, February 7, 2022 / Proposed Rules 

25The outdoor products addressed in the 

February 2015 NOPR were outdoor fireplaces, 

outdoor fireplace inserts, outdoor fire pits, outdoor 

gas lamps, and patio heaters. 

26U.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. 

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 perhousehold 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. 

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 


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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 


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6794 Federal Register / Vol. 87, No. 25 / Monday, February 7, 2022 / Proposed Rules 

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 predissemination 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. 


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

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2022–0089; Project 

Identifier MCAI–2021–01027–T] 

RIN 2120–AA64 

Airworthiness Directives; Airbus SAS 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to 

supersede Airworthiness Directive (AD) 

2021–14–17, which applies to certain 

Airbus SAS Model A350–941 and –1041 

airplanes. AD 2021–14–17 requires 

revising the existing maintenance or 

inspection program, as applicable, to 

incorporate new or more restrictive 

airworthiness limitations. Since the 

FAA issued AD 2021–14–17, the FAA 

has determined that new or more 

restrictive airworthiness limitations are 

necessary. This proposed AD would 

require revising the existing 

maintenance or inspection program, as 

applicable, to incorporate new or more 

restrictive airworthiness limitations, as 

specified in a European Union Aviation 

Safety Agency (EASA) AD, which is 

proposed for incorporation by reference. 

The FAA is proposing this AD to 

address the unsafe condition on these 

products. 

DATES: The FAA must receive comments 

on this proposed AD by March 24, 2022. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

For material that will be incorporated 

by reference (IBR) in this AD, contact 

the EASA, Konrad-Adenauer-Ufer 3, 

50668 Cologne, Germany; telephone +49 

221 8999 000; email ADs@

easa.europa.eu; internet 

www.easa.europa.eu. You may find this 

IBR material on the EASA website at 

https://ad.easa.europa.eu. You may 

view this IBR material at the FAA, 

Airworthiness Products Section, 

Operational Safety Branch, 2200 South 

216th St., Des Moines, WA. For 

information on the availability of this 

material at the FAA, call 206–231–3195. 

It is also available in the AD docket on 

the internet at https://

www.regulations.gov by searching for 

and locating Docket No. FAA–2022– 

0089. 

Examining the AD Docket 

You may examine the AD docket on 

the internet at https://

www.regulations.gov by searching for 

and locating Docket No. FAA–2022– 

0089; or in person at Docket Operations 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

The AD docket contains this NPRM, any 

comments received, and other 

information. The street address for 

Docket Operations is listed above. 

Comments will be available in the AD 

docket shortly after receipt. 

FOR FURTHER INFORMATION CONTACT: Dan 

Rodina, Aerospace Engineer, Large 

Aircraft Section, International 

Validation Branch, FAA, 2200 South 

216th St., Des Moines, WA 98198; 

telephone and fax 206–231–3225; email 

dan.rodina@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA invites you to send any 

written relevant data, views, or 


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