UNITED STATES OF AMERICA

DEPARTMENT OF ENERGY

PUBLIC MEETING

ON

DIRECT HEATING EQUIPM EN T ENERGY CONSERVATION STANDARD NOTICE OF PROPOSED RULEMAKING

U.S. Department of Energy 1000 Independence Avenue, SW Washi ngton, DC 20585 Room 8 th Floor

Thurs day September 1 , 201 1

Chair:

John Cymbalsky

Facilitator:

Doug Brookman Public Solutions Baltimore, MDExecutive Court Reporters (301) 565

- 0064 2 Participants Identified:

Timothy Ballo EarthJustice 1625 Massachusetts Avenue Suite 702 Washi ngton, DC 20036

Jane Bauer Empire Comfort Systems 918 Freeberg Avenue Belleville, IL 62220

Kenneth Belding Empire Comfort Systems 918 Freeberg Avenue Belleville, IL 62220

Leslie Bortz President RH Peterson Co. 14724 East Proctor Ave City of Industry, CA 91746

W. Allan Cagnoli Director, Government Affairs HPBA 1901 North Moore Street Suite 600 Arlington, VA 22209

Ryan Carroll Manager of Government Affairs 1901 North Moore Street Suite 600 Arlington, VA 22209

Barton Day Counsel Hearth, Patio and Barbec ue Association

Robert Elliott National Propane Gas Association

Jack GoldmanExecutive Court Reporters (301) 565

- 0064 3 President HPBA 1901 North Moore Street Suite 600 Arlington, VA 22209

Benjamin Longstreth Attorney National Resources Defense Council 1152 15 th Street NW Suite 300 Washington, D C 20005

Joanna Mauer Appliance Standards Awareness Project (ASAP) 529 14 th St. NW, Suite 500 Washington, DC 20045

Tim Perrin Legislative Director Polsinelli Shughart 1152 15 th Street NW Suite 300 Washington, DC 20005

James A. Ranfone AGA 400 N. Capitol St. NW Washington, DC 20001

Rett Rasmussen, III 12228 Philadelphia Street Whittier, CA 90601

Raymond T. Reott Reott Law Offices, LLC 35 East Wacker Drive, Suite 850 Chicago, IL 60601

Jerry Scott Robert H. Peterson Company 14724 East Proctor Ave City of Industry, CA 91746

Fra nk StanonikExecutive Court Reporters (301) 565

- 0064 4 Chief Technical Advisor Air conditioning, Heating, and Refrigeration Institute 2111 Wilson Boulevard Suite 500 Arlington, VA 22201

Thomas Stroud Senior Manager, Codes and Standards HPBA 1901 North Moore Street Suite 600 Arlington, VA 22209

Participants from Navigant :

Rob Carmichael Navigant Consulting 1801 K St. NW Suite 500 Washington, DC 20006

Adam Darlington Navigant Consulting 1801 K St. NW Suite 500 Washington, DC 20006Executive Court Reporters (301) 565

- 0064 5

Participants from DOE:

Ashley Ar mstrong Department of Energy

Chris Cal amita D epartment of Energy

Dan Cohen DOE General Counsel’s office.

Mohammed Khan Department of Energy Michael Ki d o DOE General Counsel’s office

Francine Pinto DOE General Counsel’s office

Eric Stas DOE General Cou nsel’s office

Presenter :

John Cymbalsky D epartment of EnergyExecutive Court Reporters (301) 565

- 0064 6

AGENDA

ITEM PAGE

Welcome, Doug Brookman 7

Opening Remarks, Mr. Cymbalsky 7

Introductions 9

Agenda Review , Doug Brookman 1 1

Opening Statem ents 1 4

Mr. Goldman 15 Mr. Elliott 30 Mr. Bortz 36 Ms. Bauer 59 Mr. Rasmussen 65 Mr. Ranfone 86

Regulatory History 9 0

Amended Definitions 103

Analysis of National Energy Savings 122

Small Business Impact 129

Submitting Written Comments 135

Closing Remarks 142Executive Court Reporters (301) 565

- 0064 7

P R O C E E D I N G S 1

MR. BROOKMAN: Good morning everybody and 2

w elcome . This is the U.S. Department of Energy’s 3

Direct Heating Equipment Energy Conservation 4

Standar ds Notice of Proposed Rulemaking meeting. 5

Today is September 1, 2011. My name is Doug 6

Brookman from Public Solutions . I w elcome you, glad 7

you’re here this morning . We’re going to start off 8

this morning with welcoming remarks by John 9

Cymbalsky

. 10

Welcomin g Remarks 11

MR. CYMBALSKY: Thanks, Doug. My name is 12

John Cymbalsky. I am the supervisor of the 13

Appliance Standards Program here at DOE. I’ve been 14

on the job about a year and a half now, so I’d like 15

to welcome everybody here to this public meeting to 16

di scuss the July 2011 Notice of Proposed Rulemaking 17

for Vented Hearth Heaters. 18

As many of you know, the Department of 19

Energy is currently in litigation regarding the 20

April 2010 rule establishing the efficiency 21

standards for direct heating equipment. Toda y’s 22

public meeting is for the purpose of hearing public 23

comment on our July 2011 Notice of Proposed 24Executive Court Reporters (301) 565

- 0064 8 Rulemaking for vented hearth heaters, and we’re not 1

here to talk about the April 2010 rule or the 2

litigation surrounding it. So with that, I’ll turn 3

it bac k to Doug. 4

Agenda Review 5

MR. BROOKMAN: Okay. If all of you have 6

received a packet when you walked in the door, if 7

you’ll take a peek at that and turn to Page 2, 8

please, you can see there the public meeting agenda. 9

This is how we intend to do the meeti ng today. 10

After this agenda review, everyone has a 11

chance to introduce him or herself. Please say your 12

name and your organizational affiliation

. 13

Immediately following the introductions, there’s an 14

opportunity to make brief opening r emarks or summary 15

s tatements. It’s our tradition here to try and get 16

folks to make brief remarks. I understand some of 17

you might wish to make extended remarks this 18

morning. To the extent you can summarize, that’s 19

great. To the extent you can’t, I understand. 20

However, le t me say your complete statements, 21

written, can be inserted in their full lengths as 22

you’ve written them, in the record of the meeting 23

today, so there’s an option for you if you can find 24

a way to summarize your remarks. 25Executive Court Reporters (301) 565

- 0064 9 Following those opening remarks, w e’re 1

going to have a summary of the regulatory history, 2

and following that, proposed amended definition of 3

vented hearth heater as you see in the agenda here. 4

Following that, analysis of national energy savings, 5

and then small business impacts, with yet a nother 6

opportunity for any sort of comment, closing remarks 7

that anybody wishes to say at the end of the day. 8

We’ll take a break mid

- morning, about 9

10:30

- ish. We’ll pause for lunch, when the 10

appropriate time falls on us, and we’ll just try to 11

be as effi cient as we can as the day goes on. 12

So questions and comments about the plan 13

for the day? 14

So I’d ask your consideration over the 15

span of many years, these have emerged as norms. 16

Please speak one at a time. These microphones that 17

you see before yo u, you need to push the button and 18

get the little green LED button working in order for 19

you to be captured in the record. 20

There will be a complete transcript of 21

this public meeting today, and that will be 22

available and we’ll describe where you can find it. 23

Please say your name for the record each 24

time you speak. You can say your organizational 25Executive Court Reporters (301) 565

- 0064 10 affiliation if you wish, but say your name, please, 1

each time. Please keep the focus here. Turn your 2

cell phones on silent mode. Limit sidebar 3

conversations. If you need to have a lengthy talk 4

with the person next to you, it’s okay to take it 5

out of the room and then come on back. 6

I’m going to be cueing individuals as best 7

I can to speak one by one. I also wish to encourage 8

follow

- on remarks. Sometimes th e back and forth 9

between individuals can be very helpful to the 10

Department as they try to detangle these issues. 11

And if you could, please be concise, share the air 12

time. There’s a lot to be said here today, I’m 13

sure, that’s what we’ll be trying to do as the day 14

goes on. 15

So, that is what I have to say here at the 16

outset. Do you have any summary comments at this 17

point, John? 18

MR. CYMBALSKY: No, I think we should do 19

introductions at this point. 20

MR. BROOKMAN: Okay. Let’s do 21

introductions around the r oom. Name, and 22

organizational affiliation. 23

Introductions 24

MR. GOLDMAN: Sure. Jack Goldman, Hearth, 25Executive Court Reporters (301) 565

- 0064 11 Patio and Barbecue Association. 1

MR. BROOKMAN: Thank you. 2

MR. DAY: Barton Day, Counsel for Hearth, 3

Patio and Barbecue Association. 4

MR. ELLIOTT: R obert Elliott, National 5

Propane Gas Association. 6

MS. BAUER: Jane Bauer, Empire Comfort 7

Systems. 8

MR. BORTZ: Leslie Bortz, The Robert H. 9

Peterson company. 10

MR. RASMUSSEN: Rett Rasmussen, Rasmussen 11

Gas Logs and Grills. 12

MR. RANFONE : Jim Ranfone , wit h the 13

American Gas Association. 14

MS. MAUER: Joanna Mauer, Appliance 15

Standards Awareness Project. 16

MR. STANONIK: Frank Stanonik, Air 17

Conditioning, Heating and Refrigeration Institute. 18

MR. BALLO: Tim Ballo, Earth Justice. 19

MS. PINTO: Francine Pinto, General 20

Counsel’s office , DOE

. 21

MR. STAS: Eric Stas, DOE General 22

Counsel’s office. 23

MR. KHAN: Mohammed Khan, Department of 24

Energy, Building Technologies. 25Executive Court Reporters (301) 565

- 0064 12 MR. COHEN: Dan Cohen, DOE General 1

Counsel’s office. 2

MR. BROOKMAN: Please stand up. 3

MR. DAR LINGTON: Adam Darlington, Navigant 4

Consulting. 5

MR. CARMICHAEL: Rob Carmichael, Navigant. 6

MR. BROOKMAN: Yes, you. 7

MR. CAGNOLI: Adam Cagnoli, HPBA. 8

MR. STROUD: Tom Stroud, HPBA. 9

MR. CARROLL: Ryan Carroll, HPBA. 10

MR. SCOTT: Jerry Scott, Rob ert H. 11

Peterson Company. 12

MR. RE OTT: Ray Reo tt, Robert H. Peterson. 13

MR. BELDING: Ken Belding, Empire Comfort 14

Systems. 15

MR. LO NGSTRETH : Ben Longstreth, National 16

Resources Defense Council. 17

MR. CAL AMITA : Chris Cal amita , DOE. 18

MR. KI D O: Michael Ki d o (off mic) 19

MR. BROOKMAN: Okay. So thanks to all of 20

you, and we have a few individuals that are just 21

joining us now and as soon as they get seated and 22

comfortable, they can introduce themselves. 23

MR. CYMBALSKY: Okay. Doug went over the 24

agenda for to day, so, as I said, I’m John Cymbalsky, 25Executive Court Reporters (301) 565

- 0064 13 supervisor of the Appliance Standards Program. I’m 1

going to take you through the presentation, and as 2

we go along, there’ll be some issue boxes where 3

we’ll allow time for comment. 4

Purpose of Public Meeting 5

MR. CY MBALSKY: So the purpose of this 6

public meeting. We’re here today to present the 7

analysis and justification for amending the 8

definition of vented hearth heaters. We’re here 9

also to inform interested parties and facilitate the 10

rulemaking process. Thirdly , provide a forum for 11

public comment on rulemaking issues, specifically, 12

for vented hearth heaters. And finally, we 13

encourage interested parties to submit data, 14

information, and written comments. And for us, 15

particularly, we’re going to talk a lot here t oday, 16

and we will hear your comments, but we also would 17

really like your comments to be in written form. 18

First issue box. At this time, DOE 19

welcomes comment on its Notice of Proposed 20

Rulemaking for direct heating equipment. Throughout 21

this presentation , specific issues will be raised 22

for comment on slides with issue boxes such as this, 23

with identifying numbers, corresponding to those in 24

the Notice of Proposed Rulemaking from July 22 nd

. 25Executive Court Reporters (301) 565

- 0064 14 Nonetheless, comments concerning any part of that 1

document or this presentation are welcome. 2

At this time we welcome opening statements 3

from anyone in the group who wishes to make them. 4

You can come up to this microphone, sit at the 5

table, or take the two mikes in the back. 6

MR. BROOKMAN: Okay. Let me just get a 7

bri ef show of hands. How many of you wish to make 8

opening statements? One, two, three, four, five, 9

six or so. Okay. So then, why don’t I just go 10

right down the line here, and I’ll start with Jack. 11

Opening Remarks 12

MR. GOLDMAN: Thank you. I’m Jack 13

Goldm an, President and CEO of the Hearth, Patio, and 14

Barbecue Association. 15

This rulemaking is fatally defective and 16

the Hearth, Patio, and Barbecue Association requests 17

that it be terminated immediately. HPBA will be 18

submitting this request in writing to S ecretary Chu. 19

Agencies have a clear and legal obligation 20

to provide a cogent explanation of the legal and 21

factual basis for their proposed actions, and in 22

particular, Executive Order 13563 specifically 23

directs that a proposed rule should be issued only 24

u pon a reasoned determination that its benefits 25Executive Court Reporters (301) 565

- 0064 15 justify its costs. 1

It is obvious that the Department of 2

Energy issued this proposed rule without even the 3

basic information necessary to understand the 4

consequences of the results it seeks to impose. In 5

par ticular, the proposed rule is based upon a 6

materially inaccurate understanding of the nature, 7

characteristics, and use of the products at issue, 8

and upon key assumptions and factual assertions that 9

are unsubstantiated and in some cases, clearly 10

false. 11

Co nsequently, the assessment of the 12

purported benefits and costs of the proposed rule 13

are entirely without basis. Moreover, the Notice 14

itself fails to provide any adequate explanation of 15

DOE’s analysis. DOE has filed exactly two pages, 16

two fingers here, tw o pages in the rulemaking 17

records to support this rule, and those pages deal 18

with whether the proposal must be subject to the 19

provisions of the National Environmental Policy Act. 20

The proposal was published 41 days ago. As of 21

today, the day of the hearing , a deadline for the 22

regulated community in the process, and with only 19 23

more days until comments are due, the Department’s 24

placing absolutely no backup materials, including 25Executive Court Reporters (301) 565

- 0064 16 but not limited to, supporting data, technical 1

support documents, and the economi c impact analysis 2

into the rulemaking record, is legally inadequate to 3

satisfy the requirements for notice and comment 4

rulemaking. 5

Indeed, how can we adequately comment on 6

DOE’s analysis of regulatory impacts, when no 7

analysis is provided? 8

HPBA will co ntinue its testimony at this 9

hearing, bearing in mind that it is responding 10

solely to the information in the Federal Register 11

notice published on July 22 nd . HPBA reserves its 12

right to submit comments to the rulemaking record 13

when or if DOE’s analyses are even made available. 14

Given DOE’s unexplained departure from its 15

normal rulemaking procedures as outlined in Appendix 16

A to Subpart C of 10CFR430, there is no reasonable 17

way for DOE to overcome lack of information and 18

analysis reflected in the proposed rul e. The 19

asserted factual basis of the proposed rule is so 20

riddled with error that any final rule would have to 21

rest on evidence and conclusions entirely different 22

from those presented in the proposed rule. There is 23

simply no justification for this expedit ed 24

rulemaking. The proposed rule will not provide an 25Executive Court Reporters (301) 565

- 0064 17 adequate remedy to the problems created by the April 1

16, 2010 final rule. The proposed rule will not 2

eliminate the need to resolve HPBA’s pending 3

petition for review of that rule. 4

DOE is simply rus hing to adopt a rule that 5

would be based on a status quo entity, the April 16, 6

2010 final rule that is unlikely to survive judicial 7

review. By rushing through this rulemaking, DOE is 8

denying the regulated community and the public their 9

access to the Depar tment’s data and analyses 10

undergirding the proposal. 11

DOE created enormous problems for this 12

industry by making a precipitous and uninformed 13

decision to regulate decorative gas fireplaces as 14

though they were direct heating equipment. DOE 15

should not com pound its error with a precipitous and 16

uninformed decision to regulate gas log sets as 17

direct heating equipment. 18

DOE should terminate this regulation and 19

rulemaking immediately. 20

At this point, HPBA will provide comments 21

on the four questions posed by DOE in the proposal 22

under protest, because of the lack of background 23

information available. Based on our limited 24

understanding of DOE’s thinking and reasoning, HPBA 25Executive Court Reporters (301) 565

- 0064 18 reserves the right to amend its testimony and 1

comments when or if DOE files the backgroun d 2

information that it is obligated to file as part of 3

this rulemaking. 4

First issue, direct heating equipment. 5

Decorative vented gas fireplaces and gas log sets 6

are plainly not direct heating equipment. The 7

statute specifically identifies the categories of 8

products that are DHE, and provides specific energy 9

efficiency standards for each of these categories. 10

Both decorative gas fireplaces and gas log sets 11

existed at the time of the amendment to the statute 12

and were not identified or regulated as DHE by t he 13

statute. 14

The statute provides standards and 15

procedures through which DOE can regulate consumer 16

products not covered by the statute. DOE is 17

circumventing the statutory process to regulate 18

products that are not covered by the statute. The 19

proposal g rossly mischaracterizes the nature of the 20

products. DOE’s statement that, quote, “hearth 21

products are intended to be used to either as only a 22

heat source or as a heat source with aesthetic 23

appeal,” unquote, is patently false. No hearth 24

product at issue h ere is intended solely for 25Executive Court Reporters (301) 565

- 0064 19 heating. All of the products are intended for their 1

aesthetics. Heater rated products are intended for 2

providing heat and aesthetic appeal. I ask the 3

Department to produce a vented gas hearth product 4

intended for heating but n ot aesthetic purposes. 5

There is no such product. 6

DOE also states that DHE is not dependent 7

on a manufacturer’s principal intention in 8

designing, manufacturing, or marketing the product. 9

This interpretation is irrational in the context of 10

efficiency reg ulation, because by definition, the 11

efficiency of a product can be determined only by 12

reference to how efficiently it serves its intended 13

function. 14

Similarly, DOE asserts that products can 15

be classified by DHE simply because they provide, 16

quote, “some am ount of heat to the living space,” 17

unquote. But many products, such as kitchen stoves, 18

refrigerators, incandescent light bulbs, circulating 19

air fans, and desk top computers, to name just a 20

few, provide some amount of heat to the living space 21

but cannot re asonably considered to be direct 22

heating equipment. 23

With respect to the compliance date. 24

Number two. The proposed compliance dates are 25Executive Court Reporters (301) 565

- 0064 20 illegal and non

- achievable. The proposal 1

effectively makes the regulations applicable to gas 2

log sets as of April 16 , 2013. The April 16, 2010 3

final rule did not apply to gas log sets, so the 4

April 2013 deadline does not apply. The pilot light 5

restriction would be a new energy conservation 6

standard that could only take five years from the 7

date of any final rule imposi ng it. 8

With respect to both decorative gas 9

fireplaces and gas log sets, there’s absolutely no 10

basis provided by DOE for the July 1, 2014 effective 11

date for its proposed pilot light restrictions. It 12

is a completely arbitrary date. 13

Further, Executive Or der 13563 emphasizes 14

the need for agencies to consider the cumulative 15

impact of regulations. DOE has already imposed 16

burdensome regulations on the hearth industry for 17

heater rated products, and is now adding regulations 18

for gas log sets as well. The prop osed effective 19

date would be an issue for the industry due to an 20

anticipated backlog at the few independent testing 21

labs that certify hearth products. More products 22

would have to be certified, and the current capacity 23

of the labs is insufficient to absorb a significant 24

increase in the number of products that would have 25Executive Court Reporters (301) 565

- 0064 21 to be certified. Although the labs can currently 1

keep up with the demand created by the U.S. 2

Environmental Protection Agency, and the new source 3

perform standards for wood

- burning products and the 4

fraction of gas appliances currently listed, the 5

labs will simply not be able to handle the surge in 6

requests that will occur when the NSPs goes into 7

effect, and if more gas products have to be 8

certified or recertified with new DOE regulations, 9

as a result, some products will be significantly 10

delayed in getting to market, which by itself could 11

be a fatal blow to the future of a product since, 12

under the proposal, it could not be sold after July 13

2014 without certification, and to companies that 14

make them. 15

DOE has not taken into account this 16

critical choke point, which by itself, will be a 17

huge impediment. 18

Item three. Proposed exclusion. DOE has 19

no lawful basis to impose heating efficiency 20

standards for decorative gas fireplaces and gas log 21

sets. Accordingly, it has no basis to impose 22

conditions for any exclusion from such requirements. 23

Since decorative gas fireplaces and gas log sets are 24

not DHE, the products cannot reasonably be subjected 25Executive Court Reporters (301) 565

- 0064 22 to energy efficiency standards. Further, DOE cannot 1

im pose an energy efficiency standard for a product 2

unless there is an applicable efficiency test method 3

for the product. And there are no such test methods 4

for decorative fireplaces and gas log sets. The 5

AFUE methodology is inapplicable to decorative gas 6

f ireplaces and gas log sets and cannot even be 7

conducted on a gas log set. 8

DOE may not impose heating efficiency 9

standards without determining that such standards 10

are technologically feasible and economically 11

justified. And DOE has never made such a 12

dete rmination for decorative gas fireplaces or gas 13

log sets. In fact, the heating efficiency standards 14

are not achievable for gas log sets and many 15

decorative gas fireplaces. 16

The terms of the proposed exclusion are 17

also unreasonable and unjustified. There is a 18

serious misstatement of the consequences of the 19

requirement to list decorative gas fireplaces to 20

Z21.50 and gas log sets to Z21.60. DOE states that, 21

quote, “DOE is not aware of any vented hearth 22

products on the market that are not already 23

certified t o” unquote, one of these two standards. 24

HPBA has submitted information to DOE that there are 25Executive Court Reporters (301) 565

- 0064 23 decorative gas fireplaces that are not certified to 1

Z21.50, the standard covering decorative gas 2

fireplaces. 3

Further, a substantial proportion of gas 4

log sets are not, and cannot be certified to Z21.60. 5

The market and products manufactured is more complex 6

than for decorative gas fireplaces, and there are 7

products that are regulated to Z21.60, Z21.84, for 8

RADCO standard, and many are not certified at all. 9

If t he proposal is finalized requiring Z21.60 for 10

all gas logs, would result in match light systems 11

which do not use a standing pilot light, and cannot 12

be certified to Z21.60 being outlawed. 13

There is no credible basis for the 14

purported energy conservation be nefits cited in the 15

proposal. There is no basis provided regarding 16

pilot light use. DOE makes the premise that 75% of 17

pilot lights on decorative gas fireplaces are on all 18

of the time, and that none are off most or all of 19

the time. DOE’s assertion is bas eless, 20

unreasonable, and arbitrary. Information and 21

experience in the industry indicate that DOE’s 22

assumption is absurdly high. DOE failed to fulfill 23

its obligation to consider other less costly 24

conservation alternatives to the prohibition of 25Executive Court Reporters (301) 565

- 0064 24 standing pi lot lights. The Department does not even 1

appear to have considered the possibility that equal 2

or even greater energy conservation benefits might 3

be achieved by providing information to the public, 4

to make appropriate energy conservation decisions. 5

Item 4. Impacts on small business 6

manufacturers. The proposed rule cites 14 small 7

business manufacturers that will be adversely 8

affected by the new regulation. The estimate is not 9

credible and appears to be low by at least a factor 10

of three. In addition, th ere are thousands of small 11

business specialty retailers, as well as 12

distributors who would be adversely affected by the 13

proposed regulation. 14

There is no recent assessment of costs or 15

other impacts in the proposal or the record. DOE 16

assumes that there wi ll be no regulatory burdens 17

associated with certification to Z21.50 or Z21.60 18

because it claims that all existing decorative 19

products are already certified to those standards. 20

This is a false assumption. There are significant 21

numbers of decorative vented hardware products that 22

are not certified to either standard, including a 23

substantial number of gas log sets that cannot be 24

certified to Z21.60 and hence would be banned 25Executive Court Reporters (301) 565

- 0064 25 outright. For those companies that can certify 1

their products to one of the standards , even if they 2

have to recertify their products, the assumptions in 3

the proposal are incorrectly low. 4

DOE states that compliance cost for gas 5

log sets, quote, “can be reasonably assumed to be 6

largely the same as the compliance costs of small 7

business man ufacturers” of decorative gas 8

fireplaces. There is no basis for this assumption. 9

In fact, gas log sets are significantly different 10

from decorative gas fireplaces. The market is more 11

complex in terms of geography, types of products, 12

and certifications ob tained. There are a variety of 13

ignition systems and the gas log sets are designed 14

to be installed into pre

- existing wood

- burning 15

fireplaces, which create a host of installation and 16

design issues not faced by decorative fireplaces. 17

DOE appears to have no understanding of 18

these issues. The Department states that it, quote, 19

“attempted to contact,” unquote, four manufacturers. 20

DOE did not attempt to consult HPBA and did not 21

communicate with any gas log set manufacturers. 22

HPBA is hereby requesting to know the identity of 23

those four manufacturers that DOE attempted to 24

contact, how DOE attempted to contact them, and when 25Executive Court Reporters (301) 565

- 0064 26 those contacts were attempted. And again, I can’t 1

find it in the record, because there is no record. 2

DOE also erroneously understates the 3

economic impact on the hearth industry by stating 4

that 80 percent of gas log sets already have 5

electronic or other intermittent ignition systems. 6

In fact, fewer than five percent of gas log sets 7

have electronic ignition systems, and the balance is 8

approx imately evenly distributed between match light 9

systems and standing pilot lights. DOE has not even 10

identified match light systems as a major ignition 11

system used in the industry. The reality is that 12

the overwhelming majority, 95 percent of the gas log 13

se t market will have to be reengineered and 14

certified, and match light systems cannot be listed 15

to the Z21.60 standard. As a result, there will be 16

a substantial cost to the industry to come into 17

compliance with the proposal. 18

DOE further states that, quote , “the 19

elimination of standing pilot lights would only 20

result in product conversion costs associated with 21

testing and recertification to ANSI safety 22

standards.” Unquote. This assumption is 23

unreasonable and incorrect. First, design changes 24

will be needed , especially for gas log sets. 25Executive Court Reporters (301) 565

- 0064 27 Electronic ignition is required for gas log sets, 1

whether or not it is feasible, and it is not. Over 2

90 percent of the products in the market would need 3

to be redesigned. The cost of redesign and all at 4

once to meet an arb itrary compliance date are not 5

insignificant, especially for an industry that has 6

yet to recover from the recession. 7

Second, there will be backlogs in getting 8

product recertified with the potential for many 9

products not being able to reach markets in tim e. 10

Third, as discussed earlier, the costs of 11

recertification are not insignificant. 12

Fourth, elimination of standing pilot 13

lights would, in some cases, have a significant 14

effect on product pricing, causing reduction in 15

sales, margins, or both. 16

The a ssumption by DOE in the proposal is 17

again a clear example of the Department having not 18

done the proper due diligence before it regulates an 19

industry. Finally, DOE has not looked at the 20

cumulative regulatory impacts and costs on small 21

businesses as the Exe cutive Order directs it to do. 22

In considering the economic justification 23

of any requirements, DOE must consider the economic 24

condition of the hearth industry. The industry is 25Executive Court Reporters (301) 565

- 0064 28 highly and directly dependent on the health of the 1

housing market. Total pr oduct shipments for vented 2

hearth gas hearth products fell by a third from 2005 3

to 2007, and by an additional half, or a total of 4

two

- thirds, between 2005 and 2009. The industry 5

sales have not recovered from the weak 2009 levels. 6

This industry is struggl ing to survive, and the 7

potential of a large market

-- excuse me -- and the 8

potential elimination of a large market will result 9

in even more job losses in this industry and the 10

general economy. 11

In conclusion, when one testifies at a 12

hearing, it is common practice for the person 13

testifying to thank the agency for the opportunity 14

to testify. I cannot thank DOE for that opportunity 15

today. I cannot do so because DOE has not provided 16

the regulated community and the public with the 17

information they need and t hat DOE is required by 18

law to provide, to facilitate effective comment on 19

the proposal. We have been put in the position of 20

responding to black boxes and items behind the 21

curtain. This is not what the Administrator 22

Procedure Act or DOE’s own regulations governing 23

rulemakings require. We again request that DOE 24

terminate this rulemaking. Thank you. 25Executive Court Reporters (301) 565

- 0064 29 MR. BROOKMAN: Thank you. I think many or 1

most of you have a copy of these written remarks and 2

I just wanted, for those of you who don’t have a 3

copy yet, I think we have some additional copies. I 4

have four written copies here in front of me and 5

going down the line, Robert, do you wish to go next? 6

MR. ELLIOTT: Robert Elliott, National 7

Propane Gas Association. The National Propane Gas 8

Association is a nati onal trade association of 9

propane industry, having a membership of 10

approximately 3200 companies with 39 state and 11

regional associations represented in all 50 states. 12

While NPGA’s membership covers a broad section of 13

categories, over 90 percent of our memb ers are 14

retail marketers of propane gas, who deliver the 15

fuel to the end user. However, our membership also 16

includes suppliers, manufacturers, and distributors 17

of appliances, including decorative vented and non

18

vented fireplaces and gas log sets. 19

Propa ne represents a small, but important 20

part of the US energy sector, and our industry is 21

both directly and significantly affected by the 22

Department of Energy’s proposed energy conservation 23

standards for direct heating equipment. 24

NPGA is concerned with the development of 25Executive Court Reporters (301) 565

- 0064 30 the recent Notice of Proposed Rulemaking published 1

July 22, 2011 in the Federal Register . As you know, 2

the Notice of Proposed Rulemaking of December 11, 3

2009 proposed two new definitions defining direct 4

heating equipment as both vented and unvented home 5

heating equipment. The Notice of Proposed 6

Rulemaking also proposed to expand the product class 7

of covered products as follows: vented hearth 8

heaters to include vented fireplace heaters or gas 9

fireplace inserts or gas stoves which simulate a 10

solid fuel fireplace and is designed to furnish warm 11

air without ducts to the space in which it is 12

installed. 13

However, the April 2010 final rule 14

expanded the proposed definition to include, and I 15

quote, “Those heaters with a maximum input capacity 16

less t han or equal to 9000 BTU per hour as measured 17

using DOE’s test procedure for vented home heating 18

equipment are considered purely decorative and are 19

excluded from DOE’s regulations.” 20

NPGA supports DOE’s efforts to develop and 21

promote energy conservation s tandards for the 22

consumer products covered under the Energy Policy 23

and Conservation Act, however, we are opposed to the 24

proposed inclusion of decorative vented hearth 25Executive Court Reporters (301) 565

- 0064 31 products and gas log sets as defined by DOE in the 1

covered product class of direct heatin g equipment. 2

Decorative hearth products are not designed to 3

furnish warm air to the surrounding living space. 4

NPGA contends that heat generated by these 5

decorative products is produced incidentally, as the 6

primary design and function is for aesthetics an d 7

ambiance. 8

NPGA believes several administrative and 9

procedural errors have occurred in the development 10

of the definition. NPGA finds reason for rulemaking 11

based on uncorroborated assumptions, and a mix of 12

misinformation. It is the opinion of NPGA th at the 13

requirements for the Administrative Procedures Act 14

have not been met. The April 2010 final rule, 15

promulgated a definition that was not included in 16

the December 2009 Notice of Proposed Rulemaking. 17

Therefore, the affected public was not provided the 18

opportunity to comment on the rule. 19

Further, it goes to reason that if the 20

underlying final rule was procedurally in error, 21

then the subsequent July 2011 Notice of Proposed 22

Rulemaking seeking to amend the April 2010 final 23

rule is also in error. 24

NPGA i s also concerned that the current 25Executive Court Reporters (301) 565

- 0064 32 rulemaking process does not meet the relevant 1

standards of Executive Orders 12988, Civil Justice 2

Reform , or Executive Order 13563 that requires 3

agencies to use the best available techniques to 4

quantify and anticipate prese nt and future benefits 5

and costs as accurately as possible. 6

With regards to Executive Order 12988 that 7

requires federal agencies to write regulations to 8

minimize litigation. Clearly this is not the case 9

as the HP B A has brought suit and other stakeholder s, 10

such as NPGA, believe they have standing. EO 12988 11

also requires that key terms be adequately defined. 12

We argue that the proposed definitions being 13

promulgated and amended by the Department of Energy 14

for direct heating equipment are not adequately 15

def ined. 16

Regarding Executive Order 13563, NPGA 17

believes that the average annual energy savings for 18

both vented hearth products and vented gas log sets 19

are erroneously skewed and anecdotal at best. The 20

July 2011 rulemaking states, and I quote, “DOE 21

assumes that pilot lights operate year

- round, 365 22

days a year, 24/7 for 75 percent of installations, 23

and the remaining 25 percent of consumers operate 24

their pilot lights one

- fourth of the year.” Based 25Executive Court Reporters (301) 565

- 0064 33 upon service call information supplied to NPGA by 1

our membersh ip, we believe that only about 25 2

percent of all installations for vented hearth 3

products and vented gas log sets remain on year

4

round. The remaining 75 percent of consumers keep 5

their pilot lights on for three or four months of 6

the year. This is complet ely opposite to your 7

assumptions. 8

Therefore, NPGA believes that DOE has not 9

sufficiently met the criteria found in Executive 10

Order 13563 and it is questionable whether the 11

standard is economically justified. 12

NPGA also believes that DOE has not met 13

se veral requirements of the Energy Policy and 14

Conservation Act. 42 US Code 6295 states that the 15

Secretary of Energy is required to determine that 16

the benefits of the standard must exceed the burdens 17

and that the standard is technologically and 18

economically justified. As stated earlier, we 19

believe the economic justification based upon DOE 20

assumptions is questionable at best. 21

Under Section 42 of the US Code 629503(a) 22

requires DOE to establish the test procedure for any 23

prescribed or amended standards. DOE test procedure 24

for vented home heating equipment states, and I 25Executive Court Reporters (301) 565

- 0064 34 quote, “Install thermocouples for measuring 1

condition to warm air temperature.” And the test 2

also requires one to, quote, “Establish the 3

temperature of inlet air by means of a thermocouple 4

sui tably shielded from direct radiation and located 5

in the center of the plane of heat and lit opening.” 6

Then if you look at Title 10 CFR 430.2 for 7

definitions, it states that vented home heating be 8

designed to furnish warm air to the living space of 9

a re sidence. We question whether this test method 10

determines to any degree the intent to be designed 11

to furnish warm air. NPGA does not believe these 12

products are designed to furnish warm air, and 13

therefore this test procedure is not valid for 14

prescribing or amending direct heating equipment 15

standards. 16

In conclusion, NPGA does not believe that 17

Congress intended for decorative hearth products to 18

be included as a covered product of direct heating 19

equipment. We believe the heat generated from the 20

flame is pro duced incidentally, and not by specific 21

design. It is also the opinion of NPGA that several 22

procedural and administrative errors have occurred 23

in the promulgation of the standard and its most 24

recent Notice of Proposed Rulemaking. We therefore 25Executive Court Reporters (301) 565

- 0064 35 respectfull y request that decorative hearth products 1

and gas log sets be excluded from the definition of 2

direct heating equipment. 3

NPGA thanks you for this opportunity to 4

express our comments and we will be providing more 5

detail in our written comments. 6

MR. BROOK MAN: Thank you. I think Leslie, 7

you indicated that you wish to speak as well. I’m 8

looking at your statement. I notice there’s 14 9

pages here. Do you wish to read all of this into 10

the record? 11

MR. BORTZ: I do. 12

MR. BROOKMAN: Okay. Please proceed. 13

MR. BORTZ: My name is Leslie Bortz. I am 14

the President of the R.H. Peterson Company, which is 15

among the larger manufacturers of vented gas logs in 16

the United States. We’ve been in business since 17

1949, and I have been an owner of the business for 18

34 yea rs. While our volume constitutes a 19

significant portion of our industry, we are still a 20

relatively small business, with approximately 220 21

employees. Almost all of our employees are based in 22

California, where we have our manufacturing facility 23

just outside L.A. 24

I have traveled here today to respond to 25Executive Court Reporters (301) 565

- 0064 36 the many incorrect statements and conclusions based 1

on so - called DOE research placed into its Notice of 2

Proposed Rulemaking published in the Federal 3

Register on July 22 nd

. 4

The Department of Energy was corr ect in 5

April 2010 as noted in the FAQ published 6

contemporaneously with the original DOE rulemaking. 7

Gas log sets have specific characteristics that 8

differentiate them from gas fireplaces, gas 9

fireplace inserts, and gas stoves. In 2010, DOE 10

continued, the y do not provide the same heating 11

function as those appliances which are constructed 12

as closed systems, and stated DOE believes that gas 13

log set products are intended to be installed for 14

decorative purposes. As a result, DOE interpreted 15

its definition of a vented hearth heater as not 16

covering vented log sets. 17

Nothing has changed since April 2010 to 18

make gas log sets any more of a heating appliance. 19

Now, however, the DOE asserts that because gas log 20

sets employ a flame, that they necessarily heat the 21

r oom in which they’re located. In terms of gas log 22

sets, DOE recognized in 2010, there is no 23

significant heating function for the room. Gas log 24

sets are not even able to be tested using the 25Executive Court Reporters (301) 565

- 0064 37 standard AFUE test applied to direct heating 1

equipment to measure the output of heated air. 2

Gas log sets will generate radiant heat 3

like other appliances, such as computers or light 4

bulbs, which warm the objects that are nearby, but 5

not the room air. For the first time, DOE purports 6

to regulate appliances producing r adiant heat as 7

direct heating equipment, but there is no approved 8

test for the efficiency of radiant heat. 9

The statute says that where there is no 10

approved efficiency test method, DOE is not allowed 11

to adopt a standard. Here, however, DOE is 12

recommendin g a standard which would impose 13

catastrophic costs upon the industry and would harm 14

consumers. 15

As I explained below, the standard DOE 16

proposes to adopt for vented gas logs would not 17

result in any significant energy savings, which is 18

the threshold that DO E must meet to justify imposing 19

any standard. DOE is not going to meet the stated 20

goals of this program, and in fact, will undermine 21

those same very goals by limiting consumer 22

alternatives and depriving consumers of a more 23

efficient option, gas logs, whic h generate less 24

pollution from the existing wood burning fireplaces. 25Executive Court Reporters (301) 565

- 0064 38 DOE had the opportunity to ask the gas log 1

industry for the factual information which would 2

have enabled it to identify these issues before 3

issuing the NOPR. Despite having access to t he 4

membership list for our trade association, which 5

identifies all of the significant gas log 6

manufacturers, DOE did not contact any of these 7

significant gas log manufacturers. And it appears 8

quite obvious to our industry that DOE made no 9

serious effort t o do so. Even a simple Google 10

search for gas logs could not have missed us. There 11

is simply no basis for failing to gather necessary 12

information about gas log sets. It would have been 13

readily available through discussions with any 14

manufacturers like us. 15

DOE made mistaken statements and 16

conclusions. The mistakes in the NOPR are based on 17

massive research errors, leading to totally 18

unsupported conclusion. The errors are so large 19

that random guessing would have been twice as close 20

on average. Random gue ssing would have been twice 21

as close on average. 22

DOE also assumed incorrectly that gas logs 23

have similar characteristics to decorative 24

fireplaces. Gas log sets can only be used in wood 25Executive Court Reporters (301) 565

- 0064 39 burning fireplaces. While DOE states that they are 1

difficult to dis tinguish, anyone who is making a 2

purchase, could easily distinguish them from 3

decorative gas fireplaces. Anyone investigating 4

them thoroughly would know that there are many 5

issues, like pilot lights and certifications, where 6

the two appliances have marked ly different 7

characteristics. 8

I’m now going to address several major 9

topics. Number one, gas log sets are in fact an 10

efficient substitute for consumers with wood burning 11

fireplaces, which is the only place where gas log 12

sets can be used. Gas logs are e fficient and better 13

for the environment. On Page 43945 of the proposed 14

rule, DOE states that gas log sets are relatively 15

inefficient products. How did DOE determine this? 16

Relative to what? 17

First, gas log sets are not designed, 18

intended, marketed, or purchased to provide heat. 19

They are decorative to provide a realistic 20

simulation of a wood burning fire in a wood burning 21

fireplace. There is no DOE approved test to measure 22

the heating efficiency of a vented log set, making 23

DOE’s interpretation that th ey are a type of direct 24

heating equipment unreasonable on its face. 25Executive Court Reporters (301) 565

- 0064 40 As DOE has recognized, however, houses 1

with gas log sets are more whole

- home efficient than 2

houses with the products with which they compete. 3

Gas log sets compete with wood, wax logs, and coal. 4

When a consumer has a wood

- burning fire, they 5

consume more BTUs per hour of use, about three times 6

the amount, and take more heated home air out of the 7

house to achieve the same aesthetic appeal. Many 8

wood

- burning fireplaces also use log light ers that 9

burn large amounts of natural gas to light the wood. 10

In addition, consumers will leave the flue fully 11

open overnight following a wood

- burning fire, 12

allowing the home to vent heated indoor air to the 13

outside all night. 14

In contrast, gas logs an d decorative 15

fireplaces are instant on, instant off. The flue 16

does not stay fully open beyond the period of usage. 17

Based on our consumer feedback, consumers with gas 18

log sets like them because they replicate a wood 19

fire. They are not bought to heat a ro om. If they 20

want to heat, they buy a different product. 21

Consumers buy our vented log sets for 22

several reasons. 23

Number one, safety. There are no dangerous 24Executive Court Reporters (301) 565

- 0064 41 sparks coming from a gas log set, no chimney 1

fires, no hot ashes spilling into the room. 2

Number two, cleanliness. There’s improved air 3

quality. There are no bugs. There’s no dirt. 4

Health. There are no toxins in the wood, no 5

allergens, no particulates, no asthma. 6

Convenience. Instant on/off, low maintenance, 7

low service needs. 8

Inexpensive. Gas logs are the least expensive 9

product to buy to convert your fireplace, and 10

they are the least expensive to use. Fire wood 11

is three to four times per hour more expensive 12

than gas. They buy gas log sets because it 13

saves trees. They buy gas log sets be cause it 14

uses a fuel abundant in the United States. 15

The proposed rule will interfere with all 16

of these advantages by making the units 17

prohibitively expensive. Gas log sets are far 18

cleaner from an environmental perspective than the 19

product they are repla cing. As US EPA has 20

recognized in its Burn Wise Program, consumers would 21

be well advised to shift from wood

- burning fires to 22

gas log sets in terms of an overall reduction in 23

critical air pollutants. 24Executive Court Reporters (301) 565

- 0064 42 In its analysis, DOE is assuming that 1

there is some en vironmental benefit from limiting 2

gas log sets. To the contrary, anything which 3

discourages people from making the transition from 4

gas log sets

-- excuse me -- to gas log sets from 5

wood

- burning, wax log

- burning, or coal

- burning, will 6

have an immediate and major negative effect on the 7

environment. 8

Many state environmental agencies and 9

other environmental and health groups, like the NRDC 10

and the American Lung Association, have adopted the 11

same environmental position endorsed by US EPA, 12

favoring the transit ion to gas log sets. As an 13

example, the leading air quality agency in the 14

country in charge of improving air quality, in the 15

difficult Los Angels region, has what it calls 16

“Healthy Hearths Program.” As part of that program 17

to improve public health, the S outh Coast Air 18

Quality Management District actually pays consumers 19

to change out their wood

- burning fireplaces and to 20

use gas log sets. The agency adopted this position 21

after an extensive rulemaking examining health and 22

environmental benefits of this tran sition to gas log 23

sets, and they partially used the analysis done by 24

the very experts cited by you, the DOE, Jim Hauck. 25Executive Court Reporters (301) 565

- 0064 43 DOE has simply assumed a non

- existent 1

environmental benefit in its analysis, and ignored 2

the considerable environmental detriment that will 3

come about by making gas log sets three times as 4

expensive as they are now. When properly accounted 5

for, the net environmental impact of the rule is 6

negative and would trigger requirements that DOE 7

evaluate the rule under the National Environmental 8

Policy Act. 9

My second topic is standing pilots. DOE 10

simply does not understand how standing pilots work 11

in gas log sets. The type of pilot is restricted by 12

the pre

- existing wood

- burning fireplace, and the 13

heat in the fireplace when the fireplace is bei ng 14

used. 15

First, based upon purported consultation 16

of the various websites with wholly ambiguous 17

information, DOE has decided to use 1250 BTUs per 18

hour as the pilot light gas consumption rate use for 19

vented gas log sets. DOE chose the wrong rate, 20

based u pon the use of five websites listed in the 21

proposed rule, none of which provide BTU usage 22

numbers for vented gas logs. I have the information 23

here, I will talk to you later about all five of the 24

places which you looked in the internet were not 25Executive Court Reporters (301) 565

- 0064 44 correct, co uld not give you the information that you 1

said they gave you. 2

For gas log sets, typical low BTU pilots 3

allow for low BTU consumption per hour. Peterson 4

recently tested its most common low BTU pilot on an 5

ANSI Z21.60 set, found the pilot light consumes 5 62 6

BTUs per hour at 4.5 inches of water column 7

pressure, and just slightly higher, 599 BTUs per 8

hour at the highest natural gas pressure we see in 9

the market. This rate is less than half of the 10

amount that DOE assumed. This one change cuts the 11

theoretica l gas savings from the proposed DOE rule 12

by about 55 percent. 13

To put that number in perspective, at the 14

current consumer price of natural gas, which is 65 15

to 68 cents, it costs approximately $32 per year to 16

burn vented log sets low BTU pilot for the enti re 17

year, assuming that you’re one of the minority of 18

customers to do so. 19

DOE also assumed that gas log sets would 20

last approximately 15 years. Our typical warranty 21

for gas log burners is five to seven years. Our 22

experience, a consumer who uses his or h er gas log 23

sets will replace them or stop using them in less 24

than ten years. Fifteen years is really a long time 25Executive Court Reporters (301) 565

- 0064 45 for doing that. This also cuts the potential gas 1

savings of the proposed rule by an additional third. 2

In terms of energy usage from standin g 3

pilots, DOE assumes 75 percent of the standing pilot 4

users leave their standing pilot ignited 365 days 5

each year, and 25 percent leave the standing pilot 6

ignited only seasonally during the months when 7

they’re more likely to have a reason to use the gas 8

l og set. Based upon our experience in the industry, 9

we believe that DOE has these percentages wrong. We 10

estimate that a minority of the consumers on natural 11

gas leave their gas log sets’ standing pilots on 12

year round. Most operate the standing pilots 13

sea sonally and extinguish the standing pilot and 14

close the gas valve at the end of the season. Our 15

systems are designed to make this easy to do, and we 16

provide clear instructions for how to reignite the 17

pilot after the consumer has extinguished the pilot. 18

Consumers are moving in that direction. 19

For example, our VP of sales, who is here, recently 20

returned from Alabama where the local gas company is 21

teaching consumers to turn off their pilots in the 22

off

- season, and offering a free light

- up service in 23

the f all. We will be happy to recommend consumers 24

operate their units in this manner, which would be 25Executive Court Reporters (301) 565

- 0064 46 far more cost effective solution than charging a 1

seasonal user $600 extra to save them $8 worth of 2

gas a year. 3

DOE did not address specifically the issue 4

of standing pilots for liquid propane or LP units. 5

Approximately 15 percent of our market involves the 6

sale of gas log sets that will be fueled by propane. 7

Very few LP customers use their standing pilots year 8

round. Almost everyone turns off the pilot when 9

done using the LP unit. 10

These erroneous assumptions by DOE 11

drastically overstate the energy savings for the 12

proposed rule. While DOE did not provide all of its 13

assumptions, if you use the same number of units in 14

service with pilot lights, but adjust fo r the 15

reduced number of years, adjust for the reduced low 16

BTU pilot usage, and adjust for the more common 17

seasonal consumer usage of the products, we estimate 18

that the total energy savings from this NOPR for 19

vented gas log sets would be less than 20 percen t of 20

DOE’s estimate. DOE’s estimate is more than five 21

times too high. 22

In addition, natural gas is plentiful in 23

the United States. Unlike oil, natural gas reserves 24

are higher now than they’ve been at any time in our 25Executive Court Reporters (301) 565

- 0064 47 history. Natural gas prices are drop ping each year 1

as we find more sources for natural gas, at a rate 2

that exceeds consumption. In addition, natural gas 3

is a local fuel with virtually all of the United 4

States natural gas consumption coming from sources 5

within North America. 6

DOE’s propos al would add about $600 per 7

unit to the cost of a gas log set. There’s no 8

payback for the consumer if you force them to accept 9

electronic ignition system that markets have already 10

shown the consumer doesn’t want. 11

DOE also assumed, based on a 1997, 14 ye ar 12

old study, that intermittent ignition systems 13

already are common. This may be true for 14

fireplaces, not true for gas log sets. We probably 15

sell more intermittent ignition sets than anyone in 16

the vented gas log industry, but we sell six to 17

seven percent of our units that way. No one else 18

that I know sells over five percent that way. 19

Several reasons for the unpopularity of 20

intermittent ignition systems with consumers. First 21

is obviously that the cost would triple the cost of 22

the most common gas log set sizes, and there’s no 23

significant savings. Critically, however, is the 24

difficulty of installation. Gas log sets must fit 25Executive Court Reporters (301) 565

- 0064 48 into an existing wood

- burning fireplace. Over 95 1

percent of our sales are to retrofit it to an 2

existing wood

- burning fireplace. Unlike a 3

decorative fireplace, which has spaces within its 4

design to house and protect an intermittent pilot 5

unit, gas log sets have no such area. 6

In most installations of gas logs the 7

intermittent ignition system needs to be in the same 8

wood

- burning firebox where it is difficult to 9

protect it from the surrounding flames. In many 10

installations, adding the intermittent pilot system 11

often causes the gas logs to go off center within 12

the fireplace. That, along with the battery pack 13

and box that houses th e pilot, reduces the aesthetic 14

appeal for the unit. Consumers want our product to 15

look like a wood

- burning fire and wood

- burning fires 16

do not have large battery packs in them. 17

Finally, in many shallow wood

- burning 18

fireplaces, there’s simply no room to a dd an 19

intermittent pilot system. To compete in the 20

market, gas log sets must be able to be installed in 21

a wide variety of circumstances. DOE’s proposed 22

rule would greatly restrict the number of wood

23

burning fireplaces that could accept gas log sets. 24

As DOE recognized in is Q&A to the 25Executive Court Reporters (301) 565

- 0064 49 original 2010 rule, unlike decorative fireplaces, 1

gas log sets are not constructed as a part of an 2

entire enclosure. A gas log manufacturer cannot 3

control the size and shape of the wood

- burning 4

fireplace in which the gas l ogs will be installed. 5

To accommodate this market, we sell 20 different 6

types of burners, ten to 12 different sizes, 600 7

different log sets and another several thousand add

8

on options, including many different pilots to meet 9

the needs of consumers. In th e face of this broad

10

range of installation requirements, DOE is 11

attempting to impose a one

- size

- fits

- all solution 12

which will restrict consumer choice. 13

Certification requirements. Once again, 14

based on its familiarity with decorative fireplaces, 15

DOE wrong ly assumed that the certification practices 16

of the gas log industry were the same. While it may 17

be true that most of the decorative gas fireplaces 18

are certified to an ANSI standard, this is not true 19

for gas logs. There is no universal certification 20

for g as log sets. Gas log sets are regulated 21

differently by different cities and states. 22

The ANSI Z21.60 standard is really only a 23

regional standard. For example, in the United 24

States, our company sells 21 percent of its gas log 25Executive Court Reporters (301) 565

- 0064 50 sets certified to Z21.60

. DOE assumes that all gas 1

log sets were already certified to Z21.60 , and the 2

new rule would therefore impose few certification 3

costs on manufacturers. This is clearly incorrect. 4

Over 75 percent of Peterson’s United States sales of 5

vented gas logs as list ed to what is known as the 6

RADCO standard, or are sold uncertified. 7

For gas log sets the certification issue 8

is very different than for gas fireplaces. 9

Fireplaces must contain the fire being built within 10

them. Accordingly, the code

- setting agencies hav e 11

generally regulated those fireplaces strictly. In 12

contrast, gas log sets are designed to go into a 13

wood

- burning fireplace that itself is constructed to 14

meet the various codes. Consequently, building 15

standard agencies around the country treat gas log 16

se ts very differently and quite inconsistently. The 17

standard that applies in one state or city is not 18

used by other states or cities. DOE’s attempt to 19

have a one

- size

- fits

- all approach to the 20

certification issue will necessarily conflict with 21

the certifica tion practices already in place in many 22

states and cities. 23

Directly contrary to DOE’s unsupported 24

conclusion, the ANSI Z21.60 standard represents a 25Executive Court Reporters (301) 565

- 0064 51 change in design for over 75 percent of Peterson’s 1

gas log sets, and for over 80 percent of our 2

industry. For example, ANSI Z21.60 only covers gas 3

log burners up to 30 inches. We sell 36, 42, 48, 60 4

and higher sizes to consumers with large wood

5

burning fireplaces. 6

The ANSI Z21.60 design is also more 7

expensive to build. Peterson sells some sets 8

certified to Z21.60 , largely in a few northeastern 9

states, the Virginia and Maryland suburbs of 10

Washington, D.C., and Maryland. Those units cost an 11

extra 40 to 50 percent by itself, without 12

intermittent ignition. 13

There are also other standards. There’s 14

the AN SI Z21.8 4 standard, is available, 15

theoretically, for natural gas, but it isn’t that 16

often used. Peterson sells no Z21.8 4 units. Z21.8 4 17

allows for what are called match

- lit sets, where the 18

consumer lights a match and lights the unit each 19

time the unit is turned on, without the use of a 20

pilot light. These types of units do not comply in 21

many local building codes that require a pilot, 22

however, and cannot be used with LP for safety 23

reasons. 24

The proposed rule would bar match

- lit 25Executive Court Reporters (301) 565

- 0064 52 vented gas logs, however, be cause they are not 1

allowed under ANSI Z21.60 . This is about half of 2

our industry. The vast majority of vented gas log 3

sets are sold listed to the RADCO 272

-- RGA272 4

standard. These are sold in areas that do not 5

require ANSI certification. RADCO allows match lit 6

sets without a standing pilot. In addition, rather 7

than to pay for certifying to ANSI Z21.8 4, it’s 8

easier to simply sell a listed or uncertified set, 9

depending on local requirements at a lower cost. 10

In addition, there’s no energy savings 11

basi s to insist that gas log sets are certified to 12

any particular standard. For gas fireplaces, there 13

are two different standards, there’s Z21.50 and 14

Z21.8 8, which represent a difference in function. 15

Gas fireplaces certified to Z21.50 are decorative, 16

certifi ed to Z21.8 8 are heaters. There’s no 17

comparable distinction for gas log sets. There is 18

no heater standard for gas log sets because gas log 19

sets are not sold as heaters. 20

This calls into question the whole reason 21

to regulate gas log sets in the first pla ce. The 22

absence of any standard describing any gas log sets 23

as heater should tell DOE, by itself, that gas logs 24

simply are not designed to be heating appliances and 25Executive Court Reporters (301) 565

- 0064 53 should not be regulated at all as part of this 1

rulemaking. 2

Fourth is cost analysis. T he proposed 3

requirements for gas log sets would sharply increase 4

the cost of gas log sets. Based on a 1997, 14 year 5

old report that estimated 20 percent of vented gas 6

log sets had standing pilots, DOE assumed that the 7

remaining 80 percent already used alt ernatives, in 8

quotes, “such as intermittent pilot or electronic 9

ignition,” close quotes. Back in 1997 there were 10

just about zero electronic ignition systems in the 11

market in the gas log business. Zero. Even today, 12

under seven percent of our units, and l ess than five 13

percent of the industry units are sold with 14

intermittent ignition

-- intermittent electronic 15

ignition systems. The cost of a 24

- inch log set is 16

less than $400. The cost of adding an electronic 17

ignition is an additional $596 dollars, our lis t 18

price. Thus DOE’s proposed regulation would nearly 19

triple the cost merely by adding the intermittent 20

pilot requirement. 21

The financial impact on the second most 22

common size

-- these two sizes make up probably 75 23

percent of our business, is even more because the 24

set is a little bit cheaper, and the ignition system 25Executive Court Reporters (301) 565

- 0064 54 is the same. 1

In addition, DOE is purporting to impose a 2

new certification requirement. Having a gas log 3

certified to ANSI Z2 1. 60 adds even more cost

. 4

In summary, DOE is taking a product that 5

costs less than $400 and increasing its cost to a 6

consumer to more than $1000. This is being done in 7

order to save between eight and $32 of natural gas 8

each year. There is no economic basis for the rule 9

that has been proposed. The rule will restric t 10

consumer choice, greatly discourage more effective 11

use of wood

- burning fireplaces, and impose 12

significant unwanted costs on those consumers who 13

still will be able to purchase gas log sets. 14

Virtually all of the gas log set 15

manufacturers who do not produ ce fireplaces are 16

small businesses like Peterson. If you look at the 17

market shares of the companies involved in the 18

industry, the majority of the overall vented gas log 19

market is controlled by companies that are small 20

businesses. While DOE stated that it identified 21

four small business manufacturers of vented gas log 22

sets, there are 20 to 30 such entities, all of whom 23

will face catastrophic market change from the forced 24

tripling of the price of their main product. 25Executive Court Reporters (301) 565

- 0064 55 Tripling the price of our primary product will have 1

a significant economic impact on a substantial 2

number of small business entities. 3

In its analysis of the cost of compliance, 4

DOE correctly stated

-- excuse me -- DOE incorrectly 5

stated that all vented gas log sets are already 6

certified to ANSI Z21.60 . As I explained above, 7

this is incorrect. Eighty percent are not such 8

certified. DOE also wrongly stated that the 9

elimination of the standing pilot requirement would 10

only result in product conversion cost associated 11

with testing and recertificat ion. The cost of the 12

equipment itself triples the price. The alternative 13

ignition device must have its own power source, 14

which requires another significant change in the 15

type of equipment sold with the basic log set. 16

DOE’s proposed rule would drive many small 17

manufacturers of vented gas log sets out of 18

business. 19

Five is the time line. Over 95 percent of 20

our gas logs do not meet one or both of the proposed 21

certification and pilot light restrictions. DOE has 22

proposed to make the ANSI certification requ irement 23

applicable April of 2013 and to make the no standing 24

pilot light portion of the proposed rule applicable 25Executive Court Reporters (301) 565

- 0064 56 July 2014. Gas log manufacturers were not part of 1

this rulemaking as recently as seven weeks ago. 2

Until July 22, 2011, DOE’s official positio n was 3

that gas logs were not vented hearth heaters subject 4

to these requirements. 5

First, the statute requires DOE to give 6

gas log sets at least three years from any final 7

rule on gas log sets to comply with any new DOE 8

requirements. There’s also practic al means of 9

recertifying a large percentage of the gas log set 10

market by April 2013, given the work to be done by 11

the testing agencies because of other issues in the 12

2010 rule, we have no reason to think that the 13

testing agencies could comply with the cert ification 14

requirement by then, particularly given that its 15

exact parameters have not even been identified yet. 16

With regard to pilot light restriction, 17

compliance by July 2014 is impossible. This would 18

require redesign of the units that represent over 95 19

percent of our sales, and their recertification 20

testing. 21

In summary, I’d like to make sure that you 22

understand, consumers do not buy vented gas log sets 23

for heat. Again, consumers do not buy vented gas 24

log sets for heat. Vented gas log sets only go in to 25Executive Court Reporters (301) 565

- 0064 57 wood

- burning fireplaces. Again, vented gas log sets 1

only go into wood

- burning fireplaces. There are 2

many other products in the market which will provide 3

heat. They are marketed based on their AFUE numbers 4

because there are tests that can determine w hether 5

they supply a given percentage of their BTUs in 6

heated air to the room. 7

The authorizing statute instructs DOE that 8

it may not set energy conservation standards unless 9

the appliance has a clearly identified test which 10

can measure its compliance. Here there is no 11

efficiency test that can be applied to gas log sets 12

and DOE has not even suggested that there is any 13

such test. Thus it is incorrect to say, as DOE has 14

stated in its proposed rule, that gas log set 15

manufacturers can comply by meeting the efficiency 16

test for vented hearth heaters. It is not possible 17

to test gas log sets to meet that standard. 18

In addition, consumers do not want the 19

heat that would be generated. When a consumer wants 20

a hearth product that provides heat, there are 21

readily available options in the market that will do 22

so. Gas log sets represent by far the lowest cost 23

alternative for consumers tired of the inefficiency 24

and pollution of their wood

- burning fireplaces. 25Executive Court Reporters (301) 565

- 0064 58 DOE’s proposal would rob consumers of that low

- cost 1

choice while providing no offsetting financial 2

benefit, because the gas savings, if any from the 3

proposed rule, is so small. 4

As it applies to gas log sets, DOE’s 5

proposal does not achieve greater energy savings 6

because homes with gas log sets in terms of who le 7

home heating efficiency are more efficient than that 8

alternative. The alternative is burning wood, 9

burning wax logs, burning coal. Because th e savings 10

from the pilot restriction is trivial, it would only 11

-- it would be offset by the significant cost t hat 12

would eliminate or discourage consumers from 13

switching from wood

- burning fireplaces to gas logs. 14

The proposed rule would also undermine 15

consumer alternatives because it would limit 16

severely the number of available products at the 17

market, particularly for consumers looking for low 18

cost alternatives in wood

- burning fireplaces. 19

Finally, the proposal does not ease 20

manufacturer burdens in any respect. Under the 21

prior rules, gas log sets were not subject to 22

restrictions. The proposed rule only adds 23

rest rictions and manufacturing burdens which would 24

have a traumatic and negative impact on the gas log 25Executive Court Reporters (301) 565

- 0064 59 industry. 1

I thank you for giving me the time to make 2

my statement. 3

MR. BROOKMAN: Okay. Thank you. Jane , 4

when I first looked down

-- did you wish to mak e a 5

statement as well? 6

MS. BAUER: Yes. Okay. I guess you’re 7

next in the queue. 8

MS. B AUER: Okay. 9

MR. BROOKMAN: Let me make a note that 10

we’ve been doing this now for about an hour, these 11

written statements, anybody that wishes to do so can 12

have it fully inserted into the record without 13

reading it, but if

-- no one wants to deny you that 14

option. So proceed, Jane. 15

MS. BAUER: I did time myself, so it’s 16

only about five minutes. 17

MR. BROOKMAN: Very good. 18

MS. BAUER: Good morning. My name is J ane 19

Bauer. I am part of the fourth generation of Bauers 20

who have manufactured in southern Illinois, 21

Belleville, Illinois, for the last 79 years. My 22

great

- grandfather who at age 17 immigrated from 23

Germany to try his luck at the American dream, 24

started Emp ire Comfort Systems in 1932. We’ve been 25Executive Court Reporters (301) 565

- 0064 60 manufacturing heating products for 79 years and 1

time for people to make, you know, like an d 2

decorative hearth products for 15. 3

Like many of our consumers, we are a small 4

family

- run -- customers

-- we’re a small family

- run 5

business. The following is our response to your 6

request for comments. 7

The interpretation that decorative vented 8

fireplaces and log sets are direct heating equipment 9

is unreasonable. By description, intended use, and 10

ANSI certification, deco rative hearth products are 11

decorative products, not heaters, intended to be 12

used for ambiance, not heating, and certified to a 13

standard specifically designed for ambiance and not 14

direct heating use. They are designed and used for 15

decorative purposes. It is not reasonable to assume 16

that because a product uses energy or has heat as a 17

byproduct that it can be regulated as another 18

product which is designed, certified, and currently 19

regulated as a direct heating product. 20

The gas porch light, gas fire pit, Ol ympic 21

torch, and President Kennedy’s eternal flame all 22

consume energy and produce heat, but the design, 23

intended use, and certification has nothing to do 24

with direct heating equipment. Just as a decorative 25Executive Court Reporters (301) 565

- 0064 61 hearth product is not a direct heating product. 1

Our company, because we manufacture wall 2

furnaces and heaters, has been involved in the 3

direct heating equipment regulations sin ce the 4

beginning. When the direct heating equipment 5

statute was defined, decorative hearth products 6

existed, but were not inc luded. We manufacture 7

heater

- rated products and, in fact, have the most 8

efficient vented hearth products in the industry. 9

The design of this product is obviously to be energy 10

efficient. At the same time, we cannot ignore the 11

decorative nature of the hea rth industry. Even with 12

the most efficient product, we cannot ignore the 13

ambiance. The total utilitarian product is a 14

contradiction in terms, which is why there are two 15

categories of hearth products. 16

The proposed date of compliance is an 17

over - burdensom e date for manufacturers. A minimum 18

of three years from a final rule publication is more 19

reasonable. It has been identified that 70 percent 20

of the industry shipments are in the decorative 21

hearth category. This is a low estimate, especially 22

considering t hat the estimate did not include gas 23

log sets. 24

Not only do the manufacturers, most of 25Executive Court Reporters (301) 565

- 0064 62 which are small business, need time for research and 1

development, but the volume of certifications will 2

increase at this level. The finite amount of 3

certification faci lities available to manufacturers, 4

at date of 2014 is too aggressive for an industry 5

made up of small businesses with limited resources. 6

This industry, of all the categories targeted for 7

inclusion and being regulated, is the smallest 8

energy user. An aggr essive timeline is not 9

warranted. 10

Mandating the same timeline for a 11

completely new

- regulated category that a long

12

regulated product would have is over

- burdensome and 13

too aggressive for relatively little savings in 14

return. 15

The proposed exclusion is only necessary 16

if the decorative vented hearth product and vented 17

gas log set categories are kept in the direct 18

heating equipment category. The inclusion, and then 19

the exclusion, is a contradiction in defined terms 20

by the DOE. The DOE refers to the ambiance and 21

decorative nature of these products, which is an 22

admitted contradiction by definition. There is one 23

primary use for decorative products, ambiance. The 24

heat is the result of unintended, but necessary, 25Executive Court Reporters (301) 565

- 0064 63 consequence for safety and practical application o f 1

the product. 2

The incorporation of the proposal 3

amendment for vented hearth heater will result in 4

stopping current research and development on new 5

heater hearth and space heating equipment. So 6

manufacturers, like us, are spending these resources 7

on hig her AFUE equipment research and development. 8

The end result will be delays in product 9

introductions of a greater value in energy savings. 10

It will also cause expenditures in research and 11

development, engineering, marketing, and inventory 12

that would be aga inst all good business practices. 13

The coordination of resources and expense 14

will put undue burden on industry that is small

15

business dominated, a stressed industry directly 16

affected by the housing market downturn. 17

The DOE has not considered the economi c 18

condition of our industry. The hearth industry is 19

struggling, scratching, and crawling to stay afloat 20

one small business by one small business. Since 21

2008, two major hearth manufacturers have gone 22

bankrupt, arguably, number two and number three 23

produc ers in the United States. This unreasonable 24

regulation is likely to promote more job loss for an 25Executive Court Reporters (301) 565

- 0064 64 energy load of truly little or no consequence. 1

Thank you for your time and consideration, 2

and we respectfully request you cancel the entire 3

proposal of regu lating decorative hearth products. 4

MR. BROOKMAN: Okay. Thank you. I 5

believe, Rett, you

-- you’re next and then Jim. 6

MR. RANFONE : I’ll be very brief. 7

MR. BROOKMAN: Okay. 8

MR. RASMUSSEN: You mentioned you wanted 9

to break around ten. 10

MR. BROO KMAN: Yeah. You provided a 11

written statement. 12

MR. RASMUSSEN: I would like to read it 13

also. 14

MR. BROOKMAN: You’d like to, okay. It’s 15

seven pages worth

-- yeah, that’s what I was 16

thinking. I think we should proceed with all of 17

these read statements. 18

MR. RASMUSSEN: Excellent. Good morning. 19

I am Rett Rasmussen, vice

- president of Rasmussen 20

Ironworks, Inc., also known as Rasmussen Gas Logs 21

and Grills. We are a five

- generation family 22

business founded in 1907 by my great

- grandfather, a 23

Danish immigra nt, who opened his blacksmith shop in 24

Whittier, California where we continue to conduct 25Executive Court Reporters (301) 565

- 0064 65 business today. Among other items, my great

1

grandfather and grandfather made fireplace tool sets 2

and fireplace screens. In the early 1950s, we 3

opened a fireplace reta il store in front of our 4

manufacturing shop, and among the products we sold 5

were gas log sets made by other people. 6

In 1958, my father, T.R. Rasmussen, who is 7

our current president, created the San d pan Gas Log 8

Burner. Prior to this development, a gas log burner 9

was merely a pipe with holes drilled in it that 10

provided a very harsh, noisy jet of flame. However, 11

the pan burner, which is filled with a graded sand, 12

more evenly distributes the gas, quiets down the gas 13

flow noise, and creates a wood

- like, y ellow dancing 14

flame. Over the years, this original design has 15

been copied and modified by Rasmussen and 16

competitors alike, and is overwhelmingly the burner 17

design sold in gas log sets to this day. 18

I grew up in the business. From the age 19

of six until I graduated from high school, I pushed 20

a broom, worked in the metal fabrication shop, sold 21

gas logs, barbecue and fireplace equipment in our 22

retail store, made pickups and deliveries, and 23

attended trade shows. I’m a graduate of the U.S. 24

Naval Academy with a degree in engineering, served 25Executive Court Reporters (301) 565

- 0064 66 for five and half years on active duty as a surface 1

warfare officer, then left the service to rejoin my 2

family business in 1987. 3

For almost 24 years I have designed and 4

manufactured gas log burners and sets, have been 5

invol ved in industry and technical committees that 6

have developed and maintained product standards and 7

am a certified gas engineer by the American Society 8

of Gas Engineers. I know gas logs. 9

Unfortunately, I was not consulted during 10

the DOE’s research into this rulemaking. I wish to 11

take this opportunity to address some of the items 12

with which I take issue, based on my extensive 13

experience in the subject matter. 14

Vented gas log sets are a very convenient 15

replacement for all the hassles of burning wood, 16

suc h as procuring, chopping, stacking, and hauling 17

of the wood; spiders, bugs and vermin in the wood 18

pile; sparks, ashes, creosote, chimney fires, 19

cleaning, and waiting for the embers to die down 20

before going to bed, to name a few. Gas log sets 21

provide insta nt on and off, no sparks, a ready fuel 22

supply, and look good for the greater proportion of 23

time when a fire is not burning. They are installed 24

in a fireplace in which it is safe to burn wood, 25Executive Court Reporters (301) 565

- 0064 67 which means that they’re made of n on - combustible 1

material and h ave a working chimney flue system that 2

will exhaust all of the products of combustion up 3

the chimney, rather than into the room. 4

The fireplaces that my products are 5

installed in are not of my making or design. Vented 6

gas log sets are retrofits in somebo dy else’s 7

enclosures. 8

As a replacement for wood burning, the 9

flames must replicate that of a wood fire to be 10

commercially viable. If not, they will not sell. 11

If gas log sets are not sold, more wood will be 12

burned, which is counter to the aims of the ag encies 13

responsible for air quality issues. Since 2008, 14

Rasmussen and the Robert H. Peterson Company have 15

administered the gas log purchase incentive program 16

for the South Coast Air Quality Management District 17

in southern California. 18

The provisions of both the April 2010 19

final rule and the proposed rule would limit choice 20

by significantly increasing the consumer’s cost of 21

the gas log sets and would work counter to the 22

AQMD’s desire to have gas log sets replace wood 23

burning. The end result will be eithe r greater 24

burning of wood, or more restrictions on the use of 25Executive Court Reporters (301) 565

- 0064 68 fireplaces. In any of these cases, consumer choice 1

is affected. 2

The majority of gas log sets are in the 18 3

inch to 30 inch set size range, which is where most 4

gas log manufacturers focus thei r efforts. However, 5

there is a market of larger wood

- burning fireplaces 6

and unusually shaped wood

- burning fireplaces, such 7

as multiple sides, varying heights, and non

- linear 8

openings. We offer standard set sizes from 12 inch 9

to 96 inches, and go beyond t he traditional logs 10

with our fireballs, fire shapes, fire stones, and 11

fire glitter. We offer a variety of burner designs, 12

the selection of which is dependent on the fireplace 13

size, fireplace shape, and desired final effect. 14

My point is that a one

- size

- fits

- all 15

approach is not practical to meet the market’s 16

needs. 17

I’ll now address the various issues. Nine 18

thousand BTUs per hour. I take issue with the April 19

2010 final rule to which the proposed rule refers , 20

which arbitrarily established 9000 BTUs pe r hour as 21

the ceiling for gas fireplace to be decorative. 22

This is nothing but a category killer, as no gas log 23

set exists at such a low gas input. Assuming that a 24

pilot light consumes 1250 BTUs per hour, as the DOE 25Executive Court Reporters (301) 565

- 0064 69 states in the proposed rule with which I will take 1

issue later, then your typical gas log set will be 2

an array of seven one

- and

- one - half inch long flames. 3

One of Rasmussen’s areas of expertise is 4

in the making of custom sets for large and unusual 5

fireplaces. I can’t imagine trying to convi nce a 6

consumer that a seven foot long gas lot set with 7

seven one - and

- a - half inch flames is aesthetically 8

pleasing, except to the ultimate of minimalists. 9

Another issue. DOE’s desire to treat gas 10

log sets like gas fireplace appliances. That’s my 11

term wh ich encompasses both heater

- rated and 12

decorative gas fireplaces. On April 16, 2010, DOE’s 13

Mohammed Khan published “Frequently Asked Questions: 14

vented hearth heater definition.” And in answer to 15

question number two he says, you know, does the 16

definition o f vented hearth heater cover vented gas 17

log sets. Answer: No, DOE believes that gas log 18

sets have specific characteristics that 19

differenti a te them from gas fireplaces, gas 20

fireplace inserts, and gas stoves. The primary 21

differentiating feature of gas log sets is that they 22

are not constructed as part of an entire enclosure, 23

that is, there is no surrounding box or viewing 24

pane, or a sealed system. 25Executive Court Reporters (301) 565

- 0064 70 DOE recognizes that by the nature of gas 1

log set construction, they do not provide the same 2

heating function a s gas fireplaces, gas fireplace 3

inserts and gas stoves, which are constructed as 4

enclosed systems and thus, DOE believes that gas log 5

sets products are intended to be installed for 6

decorative purposes. DOE’s definition that a vented 7

hearth heater may be, quote, “Free

- standing, 8

recessed, zero clearance, or a gas fireplace insert 9

or stove,” end quote. DOE does not believe that any 10

of these terms include gas log sets, which DOE 11

considers as different products from free

- standing, 12

recessed and zero clearance g as fireplaces, gas 13

fireplace inserts, and gas stoves. As a result, DOE 14

interprets its definition of a vented hearth heater 15

as not covering vented gas log sets. Mr. Khan 16

correctly points out many of relevant differences 17

between gas logs and gas fireplace appliances. 18

A recent e

- mail received from a consumer 19

points out another set of reasons. Quoting, “I hate 20

the ceramic logs that came with my gas fireplace 21

appliance that my builder installed four years ago 22

when I moved into my home. My style is one of 23

blended traditional slash contemporary , but I never 24

turn the fireplace on because of two reasons. 25Executive Court Reporters (301) 565

- 0064 71 Number one, the flame is miniscule for the monstrous 1

logs that are there, and number two, the logs are 2

campy and stupid looking and installed behind a pane 3

of glass, a black marble surround, and a beautiful 4

white painted, full carved mantle.” 5

She desired to replace her logs with our 6

contemporary shapes that better suited the way her 7

fireplace was finished and her décor. I had to 8

break it to her that she co uld make no alteration to 9

the fireplace without compromising safety, and 10

voiding any warranty and certification, that gas 11

fireplaces are designed as a complete appliance 12

where all components interrelate. Any change in the 13

logs could negative effect the co mbustion 14

performance. In short, she was stuck forever with 15

the burner and logs that come with the gas fireplace 16

appliance. 17

With a vented gas log set in a wood 18

burning fireplace, however, she could have changed 19

it out for anything else that she desired. She 20

could achieve the look that she desired today and in 21

the future she could remodel her home in a different 22

theme. 23

With regard to the proposed exclusions, 24

there are several more differences. The product 25Executive Court Reporters (301) 565

- 0064 72 must be certified to a certain ANSI standard. All 1

gas fireplace appliances, the decorative and heater 2

rated fireplace appliances, sold on the market are 3

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

. 4

Requiring decorative gas fireplace appliances to be 5

certified to Z21.50 is no hardship, all of them 6

already are. There’s no such thing as an 7

uncertified gas fireplace appliance as they 8

incorporate not just the logs and burner but also 9

the firebox and venting system. 10

DOE assumes that all gas log sets on the 11

market are certified to ANSI Z21.60. This is far 12

from the truth. Over the past full three years, 13

only 2.3 percent of all vented gas log sets sold by 14

Rasmussen were certified to Z21.60. Z21.60 sets are 15

required by some, but not all jurisdictions on the 16

eastern seaboard, from Virginia through New En gland. 17

Our lack of 21.60 sales points out our market 18

weaknesses in the particular areas that require 19

Z21.60. My sense is that Z21.60 accounts for not 20

more than 20 percent of total gas log industry 21

sales. 22

As you move westward, jurisdictions may 23

require test agency listings, but not necessarily to 24

a particular standard, or they make no standard 25Executive Court Reporters (301) 565

- 0064 73 requirement at all. The predominant standards to 1

which gas logs are certified are the city of Los 2

Angeles Rule of General Application 272

-- RGA 272, 3

and ANSI Z21 .84. Both cover match lighted gas log 4

sets used with natural gas up to 90,000 BTUs per 5

hour. That covers up to about a 30

- inch gas log set 6

size. Which standard is followed is more of a 7

listing agency preference. 8

Additionally, some jurisdictions requir e 9

the installation of a safety control, but do not 10

specify that it be an ANSI

- certified set. 11

A great proportion of gas log sets carry 12

no certifications, either because their size or 13

design is not covered by an existing standard, or 14

the number of sets sol d does not justify the 15

considerable costs of testing, certification, and 16

ongoing listing costs. A gas log set without 17

certification does not mean that it is unsafe. It 18

just means that it does not have a listing. 19

In the case of Rasmussen’s uncertified 20

sets, they are all made from the same designs, same 21

materials, same construction techniques, same 22

equipment, same quality control, and same trained 23

personnel as certified sets. They have the same 24

installation requirements as certified sets. 25Executive Court Reporters (301) 565

- 0064 74 Rasmussen ha s not remained in business for over 104 1

years by selling unsafe products. 2

Our rule of thumb regarding the fireplace 3

enclosures to which a gas log set may be installed 4

is that if it’s safe to burn wood, it’s safe to burn 5

a gas log. UL127 standard for f actory

- built wood 6

burning fireplaces, subjects fireplaces to 7

temperatures several times more than produced by a 8

gas log set. Masonry fireplaces also have the heat

9

resistance required for burning wood. If the 10

fireplace exhausts the products of combustion when 11

burning wood, it will do so with a gas log set. 12

Safety for a gas log set resides more with the 13

enclosure in which it is used, rather than the gas 14

log set itself. Gas log sets, by their very nature, 15

even the crudest of designs, are more controllable 16

than a wood fire. 17

The requirement for certification of gas 18

log sets only to Z21.60 demonstrates a lack of 19

market knowledge by DOE, and would be overly 20

burdensome and restrictive to the gas log makers. 21

It would represent a C change to the industry and 22

market. I recommend that this provision be either, 23

one, struck from the exclusion as insuring safety 24

and proper operation, while a noble desire, seems 25Executive Court Reporters (301) 565

- 0064 75 out of the scope for an energy conservation measure; 1

or, two, broaden the scope of this provision to 2

inc lude the other standards and uncertified sets 3

whose labeling and instructions require that they be 4

installed in a fireplace in which it is safe to burn 5

wood. 6

Next issue, banning of thermostats on 7

decorative gas fireplaces and gas logs. I find this 8

issue to be very confusing. DOE admits that 9

decorative products in part, warm air into a room, 10

yet wishes to take away an automatic shutoff device 11

that would keep the consumer from over

- using their 12

decorative appliance. I think DOE has focused too 13

much on the low end startup function of thermostats 14

than on the high end shut down of the flame. 15

How much warmth a gas log set imparts to 16

the user is dependent on factors beyond the control 17

of the gas log set or manufacturer, such as the 18

efficiency of the wood

- bu rning fireplace, the 19

ambient temperature, both inside and outside of the 20

house, and the level at which the consumer burns his 21

gas log set, the height of the flame. 22

With a thermostat, the consumer sets a 23

comfortable temperature setting at which the gas l og 24

set cuts off the flame. Without a thermostat, most 25Executive Court Reporters (301) 565

- 0064 76 consumers will burn the unit on high for a short 1

period of time, then decrease the gas flow to a 2

lower flame height for the duration of the use, for 3

the evening. Before retiring for the night, they 4

sh ut off the unit. Consumers use gas log sets in 5

vented wood

- burning fireplaces as in tended 6

appliances for ambiance, with a secondary function 7

of warmth, either from the primal effect of viewing 8

the flame, the radiance of the luminous flame, the 9

radiant ene rgy emitted from the logs, or the 10

convected heat of the air warmed by the flame. 11

Gas log sets are also an excellent source 12

of emergency warmth in the case of a power outage. 13

In areas where electric heat pumps are the primary 14

source of heat, consumers wo uld be cold and dark 15

during ice storms that knock out power lines, except 16

for their gas log sets, unless they too require 17

electricity, such as with electronic ignition 18

systems, which I’ll discuss later. 19

While not a big part of the gas log set 20

market, t hermostats, this provision limits consumer 21

choice, especially the elderly who may not be as 22

mobile to adjust their gas log set when they wish to 23

stop it from warming their air. I recommend that 24

this provision be stricken from the final rule for 25Executive Court Reporters (301) 565

- 0064 77 gas log se ts. 1

My next issue, language expressly and 2

conspicuously identifying gas logs as, quote, 3

“decorative product, not for use as a heating 4

appliance.” End quote. Similar to the thermostat 5

issue, the DOE classifies vented gas log sets as 6

vented hearth heater s, yet requires that we identify 7

them as not a heating appliance, which might be 8

confusing to the consumer. I know I’m confused. 9

The impact of adding this language to our materials 10

is mitigated by the overwhelming number of warnings 11

and cautions a consum er confronts on everyday 12

products, including gas log sets. This would just 13

be one more warning that the consumer would most 14

likely tune out or read and not heed. 15

Next issue, DOE’s market research 16

indicates that banning pilot lights would not impact 17

more than three

- quarters of the gas log market. DOE 18

has made an incorrect assumption here. DOE 19

estimates that 25 percent of gas log sets are 20

certified to ANSI Z21.60, which requires a safety 21

control, most of which on the market, is 22

accomplished by the use of a standing pilot safety 23

control system. DOE then makes the assumption that 24

the remaining 75 percent of gas log sets, quote, 25Executive Court Reporters (301) 565

- 0064 78 “already utilize alternatives to a standing pilot, 1

such as an intermittent pilot or electronic 2

ignition,” end quote. During the p ast three years, 3

Rasmussen sales of electronic ignition systems, EIS, 4

accounted for about 3.6 percent of our total vented 5

gas log sales. My sense is that this is a higher 6

percentage than most of our competitors’ sales of 7

EIS. None of the gas log sets sol d by Rasmussen 8

with EIS were certified to Z21.60. 9

What DOE has failed to identify in their 10

research is the existence of match lighted gas log 11

sets. Match lighted sets are just that. When the 12

user wishes to use his gas log set, he lights a 13

match or an aiming flame type of lighter, turns on 14

the gas, and lights the burner. When he’s done 15

using the gas log set, he stops the flow of gas by 16

closing the valve. This type of set is in keeping 17

with the spirit and intent of the energy 18

conservation goals of the proposed rules, as there 19

is no constant burning pilot at all, yet match 20

lighted sets are not covered in this proposed rule. 21

During the past three years, almost 72 22

percent, that’s 72 percent of Rasmussen’s sales were 23

of match

- lighted sets. My sense is th at the 24

industry average would be more about 55 or 50 25Executive Court Reporters (301) 565

- 0064 79 percent match

- lighted. 1

Relating this to the certification issue, 2

Z21.60 requires that the gas log set be equipped 3

with a safety system that will shut down the flow of 4

gas to the burner in the event of an interruption of 5

the gas supply or a flame out. Match lighted sets 6

are not covered under the standard. If prohibited 7

from using standing pilots, then all of our sets 8

must be equipped with EIS. This represents another 9

C changes, a potential category

- ki ller to the gas 10

log industry, and to the consumer for the following 11

reasons. 12

1. EIS components can cost five to six times more 13

than components used in standing pilot controls 14

2. EIS will add more than $650 to the retail 15

price of an otherwise match

- lighted set 16

3. Adding an EIS will more than quadruple the 17

retail price of our least expensive set that we 18

sell. Accordingly, adding an EIS to a gas log 19

set will price most consumers out of the 20

market. I expect gas log sales to plummet, 21

should EIS be required across th e board. 22

4. Propane sets require the use of a safety shut

23

down because of the nature of propane. While 24

natural gas is lighter than air and will vent 25Executive Court Reporters (301) 565

- 0064 80 up the chimney in its raw state, propane is 1

heavier than air and will pool, creating an 2

explosion hazard. P ropane is usually used in 3

more rural areas. Rural areas tend to be of 4

lower economic stature. Such an increase in 5

price due to the mandating of EIS, will 6

disproportionately affect the rural poor. 7

Adding an EIS to a gas log set presents a 8

very challeng ing proposition. As stated by Mr. 9

Khan, gas log sets, quote, “are not constructed as 10

part of an entire enclosure,” end quote. Gas log 11

manufacturers do not have the voids in the sides and 12

under the floor of the fireplace in which to hide 13

the EIS component s. Accordingly, unless the 14

installation is part of a new construction, or 15

extensive remodel, both of which are small 16

proportions of gas log sales, and the components can 17

therefore be installed outside of and adjacent to 18

the firebox, the EIS components mus t be installed in 19

the firebox, along with the gas log set. 20

Unfortunately, EIS components are greater in number 21

- valve, control module, wiring, battery pack or 22

transformer, and greater in size, more than double 23

the size, than those for a standing pilot. EIS 24

components are also more heat

- sensitive than those 25Executive Court Reporters (301) 565

- 0064 81 of a standing pilot system, further complicating the 1

location of components issue. If not located 2

properly, the components could become damaged from 3

the heat, potentially creating a safety hazard that 4

certification testing may not identify or prevent. 5

A further issue with EIS is that they 6

require outside power to operate. Since it is 7

highly unusual for a wood burning fireplace to have 8

a 110

- volt receptacle installed inside of it, 9

batteries must be u sed to power the functions of the 10

EIS. Unfortunately, batteries are also very heat

11

sensitive. While we are able to successfully locate 12

batteries in the fireplace to power remote controls 13

for standing pilot systems, the space limitations 14

caused by the EIS components and batteries usually 15

results in the gas log set having to be downsized in 16

order to provide more room. This detracts from the 17

aesthetic and decorative effect of the gas log set 18

and will most likely result in decreased sales. 19

Next issue, pilo t light consumption. I 20

take exception with the DOE’s assertion that, on 21

average, continuous pilot energy use is 1250 BTUs 22

per hour for vented gas log sets. The average gas 23

consumption for pilot

- equipped gas log sets sold by 24

Rasmussen is 662 BTUs per hour for simple 25Executive Court Reporters (301) 565

- 0064 82 thermocouple system, which is the majority of 1

piloted systems. At 830 BTUs per hour, for 2

thermopile mill volt systems, a little more 3

complicated system. My experience is that this is 4

similar with most other gas log manufacturers and 5

that the frequently asked questions cited as the 6

basis for DOE’s pilot consumption figures are 7

incorrect. 8

Two of the five sources cited as 9

manufacturers are actually dealers. Two of them are 10

actually different product lines from the same 11

company. This leaves ou t of that five, only one 12

true gas log set manufacturer as a source, and the ir 13

cited consumption of 1500 BTUs per hour is abnormal 14

to the industry. Based solely on pilot light 15

consumption, I contend that DOE’s energy savings 16

estimates are overstated by at least 40 percent. 17

Next issue, pilot light yearly usage. DOE 18

contends that the pilot lights are operated the same 19

amount of time for both gas fireplace appliances and 20

for gas log sets. It assumes that pilot lights 21

operate year

- round for 75 percent of th e 22

installations, and for the remaining 25 percent, the 23

consumer operates the pilots for one

- fourth of the 24

year. I contend that gas log sets should not be 25Executive Court Reporters (301) 565

- 0064 83 lumped in with the gas fireplaces for this issue. 1

Pilot lights are more visible and accessible in ga s 2

log sets than they are in gas fireplace appliances. 3

Most consumers first light their gas log pilot when 4

there’s a sustain ed cold, first good cold snap in 5

the autumn and turn it off when there’s a sustained 6

warmth, spring. Depending on the geographic ar ea, 7

this would result in sustained pilot usage from four 8

to six months. Based solely on yearly usage 9

assumptions, I contend that DOE has overstated the 10

energy savings by over 65 percent. Overall, I 11

contend that DOE has overstated the energy savings 12

estim ates by about one hundred and five percent, 13

just on these two issues. 14

Whenever I sit on standards technical 15

committees, my radar is always on against proposals 16

that would be so restrictive that they would stifle 17

innovation or damage the market for the pr oducts. 18

The proposal to lump gas log sets together with gas 19

fireplace appliances, the horribly incorrect 20

assumptions about the types of gas log controls sold 21

in today’s market, and the assumptions that lead to 22

highly overstated energy savings from the gas log 23

sets, points to a rush to judgment with the proposed 24

rule that will lead to irreparable harm to the gas 25Executive Court Reporters (301) 565

- 0064 84 log industry, which is comprised almost completely 1

of small businesses. Consumers will be severely 2

impacted by a limiting of choice of the types o f gas 3

logs and the tremendous increase in price. Frankly, 4

I couldn’t have designed a better job

- or company 5

killer for small business than what this proposal 6

represents

. 7

My lapel pin represents my membership in 8

Rotary International, another organization founded 9

in the early 1900’s. Rotarians follow the four way 10

test of the things we think, say, and do. 11

1. I s it the truth? 12

2. Is it fair to all concerned? 13

3. Will it build good will and better friendships? 14

4. Is it beneficial to all concerned? 15

In my estimation, the proposed rule fails the four

16

way test. 17

I respectfully recommend that you 18

immediately halt this rule and conduct a more 19

thorough research that is representative of the 20

actual gas log market. Thank you for the 21

opportunity to present to you. I welcome a ny 22

questions. 23

MR. BROOKMAN: Thank you. Jim. 24

MR. RANFONE : Yes, Jim Ranfone with the 25Executive Court Reporters (301) 565

- 0064 85 American Gas Association. We certainly agree with 1

most of the comments today, and I’m not going to go 2

into any more detail in supporting a majority of the 3

comments that were submitted and discussed. 4

It’s just amazing, when we looked at this 5

rulemaking how far it’s gotten out of hand. We 6

never thought the Department would include products 7

designed and certified to Z21.50 or 60 were included 8

in this entire rulemaki ng from the get

- go. When we 9

looked at the rule as it’s been presented now, it’s 10

kind of ironic that, you know, there’s no test 11

procedure for the product, Z21.50 or 60 products, 12

that the test procedure isn’t applicable; number 13

two, having been around a whi le, because I think 14

there’s only a few of us in the room that had been 15

around when the test procedures were developed for 16

this product line, home heating equipment not 17

including furnaces, this product wasn’t considered 18

as part of that developed test method

. 19

When we get into the Federal Trade 20

Commission looking at labeling for the product, this 21

product wasn’t considered during that labeling 22

discussion. It was certainly not, we believe, 23

included in the original intent of Congress that the 24

product be design ed to furnish warm heat

-- and I 25Executive Court Reporters (301) 565

- 0064 86 think you’ve heard enough of that this morning. I’m 1

not going to repeat that. 2

But when we looked at the final proposal 3

here, which basically says you’re not included as 4

long as you, you know, for Z21.50 or 60 products, a s 5

long as you have a label that says “not for use as a 6

heating appliance.” Well, it’s not for use as a 7

heating appliance, and DOE is agreeing to that and 8

suggesting you put a label on the product, then how 9

does it become a product? And then to go on and say 10

well, it’s

-- you put that label on but then you 11

can’t have standing pilots. 12

There needs to be some sense of reality 13

here and to what you’re attempting to do in terms of 14

energy conservation, and how it’s going to impact 15

the customers. And that’s w hat we’re concerned 16

about, specifically the replacement market and 17

what’s going to be the availability of products if 18

this rule would ever see the light of day, which we 19

hope it doesn’t. We hope it goes back to DOE, 20

review it. Maybe for some reason you d on’t like the 21

product, for whatever reason, and maybe you don’t 22

like red cars for that matter, but that’s not the 23

issue here. 24

We don’t believe legally you can cut

-- 25Executive Court Reporters (301) 565

- 0064 87 this product is covered under the legislation. Take 1

another look at the legislation a nd if you want to 2

modify legislation, you want to change it, you want 3

to include it, have at it, get the legislation 4

changed. But currently we don’t believe it is a 5

covered product, and we stand on that. 6

I think the actions from HP B A and the 7

other organ izations and the manufacturers involved 8

are -- this is a desperation issue for them at this 9

point in time as to whether or not the product as 10

they’re known today, and which are going to be 11

designed for the future, is going to be

-- continue 12

to exist. 13

We’ ll follow up with additional comments 14

on this, but, you know, in terms of

-- I’ve got to 15

say this, you know, the way the country is today, 16

being over

- regulated, I’ve never seen anything in my 17

time from the regulatory standpoint, that takes an 18

issue and has expanded to an area which is miniscule 19

when you think of it in terms of overall energy, and 20

is about ready to just implode an industry for no 21

reason. Thank you. 22

MR. BROOKMAN: Thank you. Other opening 23

remarks? I think we ’re due for a break. Let m e 24

remind everybody here present that the Department 25Executive Court Reporters (301) 565

- 0064 88 really appreciates your comments in writing. 1

Several of you, thank you, have already provided 2

your comments that you read into the record. 3

Let’s take a break. It’s now 11 o’clock. 4

We will resume at 11:15. Many of you are not 5

familiar with the way it works here in the Forestall 6

Building. You must wear this visitor’s badge 7

visible in the hallways of the Forestall Building. 8

There are restrooms at both ends of the hall. Down 9

on the ground floor dire ctly below us there’s a 10

coffee shop. Please don’t leave the building. 11

You’ll have to reenter through security if you do, 12

and thanks for a good start on the day. 13

We will, when we resume, you can scan 14

ahead in your packet. These materials will be 15

cove red with PowerPoint slides, and there’s an 16

opportunity for question and answer and discussion 17

at that point. So we’ll resume at 11:15. See you 18

back here then. 19

(Whereupon, the meeting was recessed for a 20

17 minute period.) 21

MR. BROOKMAN: As I said at t he outset, 22

all of you received a packet of information. We are 23

going to proceed with the packet in the order that 24

these pages are stacked. We’re going to commence 25Executive Court Reporters (301) 565

- 0064 89 with regulatory history, which begins on slide nine, 1

and we’re going to hear from John Cymb alsky. 2

Regulatory History 3

MR. CYMBALSKY: Okay. Thank you, Doug. 4

So back to the deck. Thank you again for all your 5

introductory remarks. I think it covered a wide 6

swath of what I’m going to present here in the deck 7

going forward. So to the extent th at your comments 8

have already been made, they are already part of the 9

record. They don’t need to be repeated but, again, 10

you’re free to make comments as we go along. So 11

let’s start with the regulatory history. 12

The Energy Policy and Conservation Act , 13

EP CA, of 1975, prior to being amended in 1987, EPCA 14

included home heating equipment as covered products. 15

And in 1987 the National Appliance and Energy 16

Conservation Act amended EPCA to replace the term 17

“home heating equipment” with “direct heating 18

equipment. ” It established standards for direct 19

heating equipment and required that DOE determine 20

whether these standards should be amended. 21

DOE amended the statutorily prescribed 22

standards for direct heating equipment for the first 23

time in a final rule published on April 16, 2010. 24

This final rule created a definition for vented 25Executive Court Reporters (301) 565

- 0064 90 hearth heater. It established product classes for 1

gas hearth direct heating equipment, that is vented 2

hearth heaters, and amended the minimum standards 3

for direct heating equipment, incl uding gas hearth 4

direct heating equipment. 5

EPCA itself does not define direct heating 6

equipment. DOE established definitions for direct 7

heating equipment, vented home heating equipment, or 8

vented heater, and finally vented hearth heater. 9

DOE interpret s the term vented hearth 10

heater as included vented hearth

-- vented heating 11

hearth products, decorative hearth products, and gas 12

log sets. DOE believes that because these products 13

provide heat to the living space, they meet the 14

definition of direct heatin g equipment. 15

So, Issue Box Number 1, given the lack of 16

statutory definition for direct heating equipment, 17

DOE requests comment on whether DOE’s interpretation 18

that decorative vented hearth products and vented 19

gas log sets are types of direct heating eq uipment 20

is reasonable. 21

And I know a lot of this was covered 22

already in your opening statements, but comment box 23

1 if you’d like to make more comments. 24

MR. BROOKMAN: Frank Stanonik. 25Executive Court Reporters (301) 565

- 0064 91 MR. STANONIK: Frank Stanonik with AH R I. 1

I think in relation to this issue and the whole 2

point that, okay, there isn’t a statutory definition 3

in the legislation, but my

-- well, I think DOE’s 4

interpretation is not reasonable because you

-- 5

because it seems to ignore what actually was 6

implemented in National Appliance E nergy 7

Conservation Act. And by that I mean that, okay, it 8

wasn’t a definition, but in fact the only products 9

for which minimal efficiency standards were 10

established in 1987 were room heaters, floor 11

furnaces and wall furnaces. 12

And recognizing that back then, okay 13

perhaps we didn’t call it consensus agreements, but 14

the efforts that resulted in NAECA was, in fact an 15

agreement among the interested parties including 16

industry to accept federal efficiency standards. 17

And so this was certainly discussed among 18

manufacturers and conservationists, other people, 19

and there’s no question, as you’ve heard from the 20

testimony, decorative appliances existed back then. 21

They’ve been around for a long time, and in the 22

context of that discussion, if there had been an 23

intent , or if it had been determined that decorative 24

appliances, whatever shape or form, were part of 25Executive Court Reporters (301) 565

- 0064 92 direct heating equipment, it becomes difficult to 1

conceive that federal minimal efficiency standards 2

would have been established that wouldn’t have 3

identified t hose as distinct products subject to 4

some minimum requirement. 5

I’m going to tell you the people back then 6

knew what they were doing, and they identified room 7

heaters, floor furnaces, wall furnaces as subject to 8

minimum requirements. They didn’t identify a 9

decorative gas fireplace. They didn’t identify a 10

gas log set for installation in a wood

- burning 11

fireplace as products for which there would be 12

minimum standards. They didn’t identify vented 13

fireplace heaters, because in fact, that product 14

didn’t exist at the time. But as we mentioned in 15

comments that we submitted back in 2010, that as 16

that product evolved, in fact, there was a standard 17

developed, a safety standard developed that clearly 18

identified, these are heaters, and these are subject 19

to NAECA. 20

And so I think that given the fact that 21

okay, there’s no statutory definition, but the 22

practice, the implementation of the regulations 23

clearly are in the direction that products that were 24

decorative were not subject and were not intended to 25Executive Court Reporters (301) 565

- 0064 93 have minimum efficiency requirements. And I think 1

that DOE has somehow missed that point. 2

MR. BROOKMAN: Okay. Jim Ranfone

. 3

MR. RANFONE : Yes, Jim Ranfone , American 4

Gas Association. Let me just add on to Frank’s 5

comments about this term direct heating equipment 6

versus vented home heating equipment, because I 7

think that’s sort of one of the genesis of the issue 8

here in terms of what’s covered. 9

The test procedure is for vented home 10

heating equipment, it’s not for direct heating 11

equipment. And I believe, you know , you can either 12

believe me or not on this, but when NAECA was 13

developed back in 1986 or ’87, the use of the 14

inclusion of direct heating equipment into the 15

legislation was almost at the tail end of 16

negotiations. Manufacturers at that time

-- I was 17

with th e Gas Appliance Manufacturers Association

-- 18

was considering furnaces and what the level should 19

be, but when it came to this product, direct heating 20

equipment, that name I believe, comes from the 21

product class division that was represented by GAMA 22

at the t ime

-- 23

MR. BROOKMAN: Jim, did you participate in 24

those negotiations? 25Executive Court Reporters (301) 565

- 0064 94 MR. RANFONE : Yes. Yes, and the 1

decorative equipment was certainly not included. We 2

were talking about room heaters, wall furnaces and 3

floor furnaces, and I think there’s no doubt that 4

those products were covered. The reason the 5

legislation was revised to add this category of 6

direct heating equipment was because the 7

manufacturers wanted preemption from state 8

regulations. That was the primary reason. They 9

agreed to levels, they ag reed to the strong 10

preemptive positions in there, because at the time, 11

I believe California was looking at regulations on 12

this product class. Specifically floor furnaces, 13

because one of the big proponents for energy 14

efficiency had a floor furnace in his h ouse and he 15

wanted that product covered. So the real concern 16

was preemption. 17

When we’re talking about, you know, you’re 18

talking about these products

-- at that time there 19

was never any inclusion of any decorative appliances 20

in those discussions. The st andards themselves, 21

Z21.50 and 60, at that time, did not include 22

efficiency requirements. There were none. 23

The other gas standards, including room 24

heaters, both classes of wall furnaces, gravity or 25Executive Court Reporters (301) 565

- 0064 95 fan type, floor furnaces, did have efficiency 1

requireme nts. Believe it or not, the appliance 2

standards at that time had n.. efficiencies. They 3

had them on a thermal basis, on a steady

- state 4

basis. DOE, when they did their test procedure, 5

when they, as required by law in the late 70’s did 6

include a test proc edure for those products. 7

Decorative were not considered. 8

I don’t know if that adds a little bit of 9

insight as to why that term “direct heating 10

equipment” is in the law, but I think that’s what 11

happened. I think in the transfer of okay, let’s 12

put that product into the legislation, mainly 13

because we want federal preemption, number two, 14

these are our minimums for these product classes. 15

That sort of resolved the manufacturers issue at 16

that time. 17

Here we are in 2011, and suddenly we’re 18

reinterpreting wha t happened. And like I said 19

before, if you’re really interested in looking at 20

hearth products in terms of efficiency or whatever, 21

you really need to go back and take a look at the 22

product class and do your economics and technical 23

evaluation. 24

MR. BROOKMA N: Jack, you wish? Jack? 25Executive Court Reporters (301) 565

- 0064 96 Okay. Thank you. Yes, Tim Ballo. 1

MR. BALLO: Tim Ballo with Earth Justice. 2

It seems to me that in considering whether DOE has 3

properly interpreted vented hearth products and gas 4

log sets are types of direct heating equipmen t, it 5

almost doesn’t matter once you have a standard that 6

covers vented hearth heaters, and I think most in 7

the room would admit there are some subset of 8

products that are both designed and intended 9

primarily to serve a heating function. You need to 10

come up with some way to draw a line around those 11

products and to separate them from products that are 12

more ornamental and less heating products. 13

So it seems to me that what the Department 14

has done here is propose a way to draw that line and 15

I’ve heard a lo t of objections to the way, the 16

particular methods. I’m not sure there’s anything 17

that can’t be resolved, whether it’s by recognizing 18

a role for match light products or for different 19

ANSI standards for gas log sets, or through some of 20

the tweaks to the st andard. But I mean the fact is 21

we have a standard for vented hearth heaters and 22

there has to be some way to identify products that 23

standard should apply to and products that it 24

shouldn’t apply to. 25Executive Court Reporters (301) 565

- 0064 97 MR. BROOKMAN: Jack. 1

MR. GOLDMAN: Jack Goldman, HPBA. I guess 2

one of the problems I have is that this proposed 3

regulation doesn’t just distinguish. Because if an 4

appliance, a gas log set or a decorative fireplace 5

cannot meet the four conditions, then if my 6

interpretation is correct, then they’re then subje ct 7

to the energy efficiency requirements. They are 8

then regulated

-- if they’re going to be sold, they 9

then must be regulated as per the April 2010 rule, 10

and so it is not a distinction, it is a choice 11

between either meeting the four exceptions, if they 12

ca n be met, or being regulated. 13

MR. BROOKMAN: Tim. 14

MR. BALLO: Well, my comment is then we 15

need to get the exceptions right. If these 16

exceptions don’t work, what exceptions do work? 17

Because we need to get something in place to 18

distinguish between thes e two types of products. 19

MR. BROOKMAN: Excuse me. 20

MR. CYMBALSKY: So Doug earlier said that 21

he should silence all your

-- 22

MR. BROOKMAN: I had it in my briefcase, 23

sorry about that. 24

PARTICIPANT: It’s comforting. We all get 25Executive Court Reporters (301) 565

- 0064 98 a free pass. 1

MR. BROOKMAN: So I’ll remind everybody 2

again, silence all cell phones. Other comments? 3

Yes, please. Barton. 4

MR. DAY: Yes, just responding to Tim’s 5

comment. Tim, the issue, the difficulty here is 6

that it’s one thing to distinguish between products 7

that are not direct heating equipment and products 8

that are direct heating equipment. And that’s not a 9

discussion that the proposed rule is aimed at. The 10

proposed rule classifies everything as direct 11

heating equipment, and then you’ve got requirements 12

A, req uirements B, but it’s all direct heating 13

equipment. And it’s not. I mean the argument that 14

decorative products are direct heating equipment is, 15

I will be polite and say, not well taken. 16

MR. BROOKMAN: Other comments. Yes, 17

please, Rett. 18

MR. RASMUSSEN : Rett Rasmussen. Just as 19

your phone went off and a mistake was made, I think 20

what’s the biggest issue right here is in the face 21

of people who, you know, deal with gas log sets on a 22

daily basis for decades, in the face of our 23

experience, if DOE will admi t they made a mistake 24

and are willing to actually take action to correct 25Executive Court Reporters (301) 565

- 0064 99 those mistakes rather than get into a 1

confrontational type standpoint and everybody’s just 2

staring off across the line at each other, you know, 3

we want to make sure everything’s done properly too. 4

But not needlessly, not just for the sake of getting 5

something done. It’s got to be done for the 6

American people. It’s got to be done properly and 7

represent

-- not just throw out things wholesale 8

that are a part of the market and working n ow, you 9

know, throw out the baby with the bath water type of 10

thing, here just to accomplish something. 11

We came here in the spirit of cooperation, 12

ostensibly because our industry is in peril with the 13

way this is written right now. If we don’t comply 14

with the four exclusions, all four of them as 15

they’re proposed right now, then we are put into 16

this regulated category for which we have no way of 17

complying, other than decrease our BTUs to 9000 BTUs 18

-- and again, I remind you of the seven pilot 19

lights, this l ong. Maybe a few more if you use my 20

definition of how much a pilot light consumes, you 21

might have 14 or 12 pilot lights worth of flame to 22

fit whatever size fireplace. So we are here in the 23

spirit of cooperation because we want to keep our 24

businesses inta ct. We don’t want to go away. A 25Executive Court Reporters (301) 565

- 0064 100 hundred and four years is not something to just walk 1

away from, for myself, so on that basis I do avail 2

myself to answer questions to help out in any other 3

way and hope that we cannot just get into this, what 4

are you going to give up type of thing. Because 5

that seems to be kind of where some of the 6

negotiations have been throughout the last period of 7

time and then we get this big rush within the last 8

month and a half, all of a sudden, gas logs are 9

included where they hadn’ t been. In fact, they’re 10

explicitly excluded in all conversations in the 11

frequently asked questions. I feel kind of blind

12

sided in all this. So would like to see cooperation 13

and then a willingness on the other side, as we seem 14

to be split up here geogra phically in this room on

- 15

- with a dividing line. Let’s cross that divide and 16

let’s make this thing work right for the market. 17

MR. BROOKMAN: So there’s more contact to 18

follow. Other questions, comments on this specific 19

issue before we move on. Yes, J ack. 20

MR. GOLDMAN: I would like to ask DOE what 21

is the basis for changing its opinion 180 degrees 22

from the statement written by Mohammed Khan in the 23

FAQ in April 2010? 24

MR. BROOKMAN: John Cymbalsky. 25Executive Court Reporters (301) 565

- 0064 101 MR. CYMBALSKY: Well, I think you can read 1

in the p reamble that we came to the conclusion that 2

gas log sets were part of this. 3

MR. BROOKMAN: Go ahead, Jack. 4

MR. GOLDMAN: Jack Goldman. Yes, I read 5

the preamble. The preamble is a conclusion. I’m 6

asking for the basis for the agency’s decision, and 7

th ere is no available information that you’ve made 8

available as part of this comment period. So I have 9

to take that as a non

- answer, okay. 10

MR. CYMBALSKY: Well, you can comment and 11

we will take that under consideration. Thank you. 12

MR. BROOKMAN: Jack. 13

MR. GOLDMAN: You’re asking me to comment 14

on something that I haven’t seen. 15

MR. CYMBALSKY: Thank you. 16

MR. BROOKMAN: Okay. So additional 17

questions and comments. Leslie. Please use the 18

microphone. 19

MR. BORTZ: Rett just told you that we 20

would be willing to discuss some sort of a way of 21

getting together, and you’ve just said nothing. 22

That’s not right. 23

MR. BROOKMAN: Additional comments on this 24

series of issues before we move on? Okay, let’s 25Executive Court Reporters (301) 565

- 0064 102

move on. 1

Proposed Amended Definition of Vented Hearth Heaters 2

MR. CYMBALSKY: So we’ll move on to the 3

proposed amended definition of vented hearth 4

heaters. On further consideration of the April 2010 5

final rule, DOE developed its current proposal which 6

it believes would result in significant additional 7

ener gy savings, preserve consumer choice, and reduce 8

the burden on industry. 9

DOE is proposing to amend the criteria for 10

a vented gas hearth product, or vented gas log set 11

to be considered decorative in nature, and thereby 12

eligible for exclusion from the DOE energy 13

conservations standards for vented hearth heaters. 14

In order to do this we have proposed the following 15

exclusion criteria. 16

1. Certified to ANSI Z21.50 and not Z21.88 for 17

vented gas hearth products only, for example, 18

gas fireplaces, gas fireplace insert s, and gas 19

stoves. 20

2. Certified to ANSI Z21.60 for vented gas logs 21

only 22

3. Sold without a thermostat and with a warranty 23

provision expressly voiding all manufacturer 24

warranties in the event the product is used 25Executive Court Reporters (301) 565

- 0064 103 with a thermostat 1

4. Expressly and conspicuously identi fied on its 2

rating plate and in all manufacturer 3

advertising and product literature, as a 4

decorative product, not for use as a heating 5

appliance. And finally, with respect to 6

products manufactured after July 21, 2014, not 7

equipped with a standing pilot li ght or other 8

continuously burning ignition source. 9

This next slide just actually prints 10

what’s in the Notice. I’m not going to read it, but 11

this is

-- the summary slide before this covers all 12

this ground, but in more detail. 13

So we come to Issue Box Nu mber 2. The 14

pro p osed comp liance date, that is July 1, 2014, for 15

vented gas hearth products and vented gas log sets 16

to remove standing pilot lights or other 17

continuously burning ignition in order to qualify 18

for the exclusion. DOE seeks information regardi ng 19

what manufacturers will need to do to meet that 20

date, or whether a different date would be 21

preferable. If suggesting a different date, DOE is 22

interested in specific rationales and accompanying 23

data as to why a different timeline for eliminating 24

standin g pilots or other continuously burning 25Executive Court Reporters (301) 565

- 0064 104 ignition sources from decorative gas hearth products 1

and/or vented gas log sets may be warranted. 2

And we’ll take comment on Issue Box Number 3

2. 4

MR. BROOKMAN: Jack. 5

MR. GOLDMAN: Jack Goldman. I thought the 6

bur den of a proposal was for the agency to explain 7

why it has a deadline. What I’ve just heard is that 8

the agency has put out an arbitrary date, which it 9

has not explained in the Federal Register notice and 10

there’s no record, and now it’s basically saying to 11

the regulated community, if you don’t like it, you 12

have to tell us why it has to be different. I 13

didn’t think that was the burden in the rulemaking, 14

and I would like to know why the agency is taking 15

that tack. 16

MR. CYMBALSKY: So, again, we ask for your 17

comment on our date, and we will consider all 18

comments. 19

MR. BROOKMAN: Jack. 20

MR. GOLDMAN: Could you just say that 21

you’re not answering my questions, please? I would 22

appreciate that. 23

MR. CYMBALSKY: We are accepting your 24

comments. Thank you. 25Executive Court Reporters (301) 565

- 0064 105 MR. GOLDMAN: Thank you. 1

MR. BROOKMAN: Leslie. Please use the 2

microphone. 3

MR. BORTZ: Is it on? 4

MR. BROOKMAN: Yes. 5

MR. BORTZ: I have a question going back, 6

should I wait until later? 7

MR. BROOKMAN: How far back? 8

MR. BORTZ: The first

-- 9

MR. BROOKMAN: Comment box? 10

MR. BORTZ: Yes. 11

MR. BROOKMAN: Well, let’s do it now. 12

MR. CYMBALSKY: Okay. I’ll put that back 13

on the screen. There you go. 14

MR. BROOKMAN: Leslie. 15

MR. BORTZ: What you say is you’re 16

proposing to amend the criteria for v ented gas log 17

sets, which is what we make, to be considered 18

decorative in nature and thereby eligible for 19

exclusion. You have exclusion criteria which are 20

impossible to meet, and the criteria

-- the other 21

criteria

-- are also impossible to meet. Not

-- n ot 22

maybe, it is impossible to put a 9000 BTU set into a 23

wood burning fireplace. It will not pass any 24

standard. You can not do it. What you have here is 25Executive Court Reporters (301) 565

- 0064 106 one impossibility versus another. Thank you. 1

MR. BROOKMAN: Thank you. 2

MR. CYMBALSKY: Thank you

. 3

MR. BROOKMAN: Rett. 4

MR. RASMUSSEN: Rett Rasmussen. We’re 5

talking less than three years for component 6

manufacturers

-- if we were going to go to all EIS 7

as an exclusion, to come up with things better than 8

what they have on the market now. I’ve bee n banging 9

on the component manufacturers, and just so you 10

know, we don’t make everything, every piece that 11

goes into our products. We are dependent upon the 12

market of component manufacturers, those valve 13

manufacturers, pilot manufacturers, which many time s 14

are different and other component manufacturers to 15

pull our sets together. 16

The electronic ignitions is probably the 17

least mature of all components that we use in our 18

products. Up until recently, the only thing we 19

could use for electronic ignition sy stems were 20

essentially furnace controls that we applied to the 21

fireplace. They’re not specifically made to fit, as 22

I discussed in my comments, the sizing is s ues that 23

we have, as a retrofit gas log manufacturer who does 24

not have all of the voids that a gas fireplace 25Executive Court Reporters (301) 565

- 0064 107 appliance manufacturer can build into their product 1

to hide these controls. So as a decorative product, 2

having to cram these things in, and as well have our 3

gas log set there, takes away the decorative 4

appearance of the log set. 5

So having l ess than

-- probably for at 6

least ten years, every time a valve manufacturer 7

comes in, I give him what my holy grail of a system 8

is. I want electronic ignition system, one that 9

does not have a standing pilot, that is battery 10

operated, that has variable fl ame height remote 11

control so the person can sit in their easy chair 12

and with just pressing the button, raise and lower 13

the flame height. It’s got to be small footprint, 14

but yet large BTU flow because we don’t stop at 30 15

inch as our set size. We accommoda te the larger 16

fireplaces that are in the marketplace and , you 17

know, those people who, unfortunately who can afford 18

to pay for that type of system, by virtue of the 19

fact that they’re putting large fireplaces into 20

large homes, they don’t have that available to them. 21

It’s just kind of entering the marketplace now. 22

And again, as I said, this has been every 23

year, every time I speak with a component 24

manufacturer for at least the last decade, there 25Executive Court Reporters (301) 565

- 0064 108 still isn’t a great thing. Even one guy that showed 1

me someth ing two trade shows ago, which would be 2

well over a year and a half ago, he still doesn’t 3

have it ready to a point where he can give me a 4

price on it, on the complete system. He still has a 5

lot of things he hasn’t worked out. And then even 6

when he gets m e a price, you know, the manufacturing 7

time is going to be eight to 12 weeks. So, you 8

know, less than three years with knowing how, being 9

dependent upon people who aren’t at this table, I 10

find as being highly dangerous to my business, it’s 11

viability, to c onsumer choice, to everything. 12

If your intention is to kill gas log sets, 13

then just put it in the record, we want to kill gas 14

log sets, because doing it the way it is here, is an 15

end round, is not honest, is underhanded. And so 16

let’s just put it out o n the table. If your 17

intention is not to kill gas log sets, then please 18

work with us to find a viable solution. 19

MR. BROOKMAN: Thank you. Jack. 20

MR. GOLDMAN: I’ll pass. 21

MR. BROOKMAN: Additional comments on the 22

proposed compliance date. Thanks for that 23

illustration. Frank. 24

MR. STANONIK: Perhaps not so much a 25Executive Court Reporters (301) 565

- 0064 109 comment as a question. Certainly when the final 1

rule was published and leading up to that, there 2

were technical support documents that justified the 3

-- explained the decisions and all that stuff. And 4

in terms of the data that we provided in helping 5

that process, we did provided data on shipments and 6

information on floor furnaces, room heaters, wall 7

furnaces. 8

What seems to have happened here is we’ve 9

got into this discussion about both the vented 10

decorative appliances and the gas log sets, and a 11

suggestion in essence, to impose a standing pilot 12

ban which wasn’t proposed in the final rule

-- 13

whatever effect the AFUE requirements had on pilots 14

is there, it’s not a direct you can or cannot have 15

one, but effectively you can’t, but it’s not a 16

prescriptive requirement. 17

And I guess my question is, we’re now 18

talking about a prescriptive requirement on a subset 19

of products that, to my knowledge of the TSDs, 20

wasn’t really significantly considered . Is DOE 21

preparing, let’s say, a supplementary TSD to get 22

into the thorough analysis of what this means to 23

this subset of the industry? 24

MR. CYMBALSKY: Well, I think what we 25Executive Court Reporters (301) 565

- 0064 110 presented today was what manufacturers would have to 1

do to get the exclusion, a nd so the pilot light was 2

one of them. 3

MR. BROOKMAN: Frank. 4

MR. STANONIK: Okay, but in terms of what 5

I’ve heard, and in this case, what I don’t know, 6

there hasn’t really been an analysis

-- okay, how 7

many players are in this industry? How many 8

produ cts are sold on an annual basis? What’s the 9

net energy savings that is anticipated to be saved? 10

MR. CYMBALSKY: That’ll come in a later 11

slide. 12

MR. STANONIK: Okay. 13

MR. BROOKMAN: So, we’ll get to those 14

slides in a little bit. You want to take up i ssue 15

three now? 16

MR. CYMBALSKY: Sure. So Issue Number 3, 17

the proposed requirements for exclusion from the 18

energy conservation standard as a decorative vented 19

hearth product or vented gas log set. 20

MR. BROOKMAN: Jack. 21

MR. GOLDMAN: Since there is no discussion 22

in the April 2010 rule and there is no discussion in 23

the proposal of July 22, 2011, and there’s nothing 24

in the record, I would like to have, at this point, 25Executive Court Reporters (301) 565

- 0064 111 a description of the bases for the criteria. 1

MR. CYMBALSKY: The four criteria 2

presente d here today, and you can feel free to 3

comment on what the criteria are. 4

MR. BROOKMAN: Issue Number 3 is on Slide 5

16. 6

MR. CYMBALSKY: So Issue 3 relates to this 7

slide which is what the proposed exclusion criteria 8

are, so here we have listed the criter ia and we are 9

seeking comment at this time. 10

MR. BROOKMAN: Okay. So that’s on

-- 11

those criteria are shown on Slide 14, Jack. 12

MR. GOLDMAN: Jack Goldman. In response 13

to your comment, Mr. Cymbalsky, again, I was always 14

under the impression that the APA , the agency’s own 15

regulations, and the EO all required the agency to 16

put forth its rationale for its decisions in order 17

for the regulated community and the public to 18

comment, and that has not been done. 19

MR. CYMBALSKY: Thank you for your 20

comment. 21

MR. BROOKMAN: So we’re now still 22

considering Issue 3, that you can see in your 23

slides, at the bottom of Slide 16 in the packet, the 24

proposed requirements for exclusion from the energy 25Executive Court Reporters (301) 565

- 0064 112 conservation standard as a decorative vented hearth 1

product or vented gas l og sets. Barton. 2

MR. DAY: There’s a fundamental disconnect 3

in the proposal which is the premise that one needs 4

an exclusion is based on the proposition that one is 5

otherwise subject to heating efficiency standards. 6

And DOE has never looked at applying heating 7

efficiency standards to decorative products. It 8

never considered the issue whether those standards 9

would be technologically feasible or economically 10

justified for vented gas fireplaces outside the 11

heater category. 12

And now you’re proposing to sw eep in gas 13

log sets and there never has been any discussion 14

about whether the heating efficiency standards would 15

be technologically feasible or economically 16

justified for gas log sets, and yet those standards 17

would apply. How is that possible? I mean, I don’t 18

understand the logic here. 19

MR. BROOKMAN: Thank you. Additional 20

comments. Rett. 21

MR. RASMUSSEN: Rett Rasmussen. With 22

regard to rationale behind Z21.60 as the choice for 23

vented gas log sets, I’m curious as to how the DOE, 24

in their, I will assum e, best attempt at research of 25Executive Court Reporters (301) 565

- 0064 113 the gas log market, missed at least 50 percent of 1

the gas logs sold that are match lighted. Anybody 2

like to address that? To me, it brings into 3

question all the other supporting rationale, which 4

as Mr. Goldman has mentioned , we have not been 5

afforded, other than a few websites, that as we’ve, 6

you know, I’ve seen only one is actually a 7

manufacturer, and that was just on the issue of the 8

pilot light consumption. I’m just curious as to 9

just how that all came about to support t hese 10

provisions which have very far

- reaching consequences 11

to this industry. 12

MR. CYMBALSKY: So we heard that and we 13

listen to that and we appreciate that comment in 14

your opening remarks, so we thank you for that. 15

MR. BROOKMAN: Joanna. 16

MS. MAUER: Jo anna Mauer. Just generally 17

on the exclusion criteria, I think what’s kind of 18

important overall is to try to prevent loopholes 19

where non

- decorative products could qualify for the 20

exclusion. That seems to be what DOE’s intending to 21

do here. 22

MR. BROOKMAN: Okay. Thank you. Leslie. 23

MR. BORTZ: I’m sorry, what non

- decorative 24

products are you talking about with respect to 25Executive Court Reporters (301) 565

- 0064 114 vented gas logs? 1

MS. MAUER: Or I should say products that 2

are not primarily or not solely intended for use as 3

decorative products th at are

-- would be actual 4

heating products. 5

MR. BORTZ: I’m sorry, there are no gas 6

logs like that. By definition. 7

MS. MAUER: Well, I guess I’m talking 8

maybe more generally, about also the vented gas 9

fireplaces. 10

MR. BORTZ: I don’t make vented gas 11

fireplaces, and you may be right. I make vented gas 12

logs and there are none. 13

MR. BROOKMAN: It’s a definitional issue. 14

Rett, go ahead. 15

MR. RASMUSSEN: Yes, Rett Rasmussen. 16

Yeah, we have to watch the generalities because 17

specifically these items affe ct vented gas log sets, 18

and then also the Z21.60 has nothing to do with 19

energy conservation, has nothing to do with energy 20

consumption other than it’s limits that it has 21

within the standard itself. But it has

-- because 22

as we discussed earlier, by definit ion, they’re not 23

used in an enclosure that is a part of the gas logs. 24

You cannot determine

-- well, actually, you can 25Executive Court Reporters (301) 565

- 0064 115 determine

-- they’re essentially 100 percent 1

efficient in and of themselves. It’s when they’re 2

placed into the enclosure into which they ’re 3

intended to be used that it takes on the efficiency 4

of that particular appliance. 5

Fireplaces were originally designed as 6

cooking appliances. They were not really used to 7

provide heat. Their shape and function is such that 8

because you have to exhaus t out the product of 9

combustion, it does take out most of the heat up the 10

chimney. Otherwise, you get those products of 11

combustion

-- your soot and your carbon monoxide and 12

dioxide and water vapor

-- into the living area, 13

which is then harmful to the occu pants of it. So I 14

don’t understand why Z21.60 is part of this 15

exclusionary thing because with regard to the whole 16

overall function of this proposed rule and the whole 17

rulemaking, it has nothing to do with energy 18

conservation. 19

MR. BROOKMAN: Okay. Thank you. Yes, Tim 20

Ballo. 21

MR. BALLO: Tim Ballo. I’m not trying to 22

be incendiary, which is a terrible word to use, but 23

on the issue of whether these are heating products, 24

gas log sets specifically, whether gas logs are 25Executive Court Reporters (301) 565

- 0064 116 heating products or ornamental produc ts, the 1

Rasmussen comments discussed the use of thermostats 2

with these products, and how with a thermostat the 3

consumer sets a comfortable temperature setting at 4

which the gas log set cuts off the flame. So I 5

mean, if you have to equip it with a thermosta t 6

because otherwise it will make the room too hot, 7

isn’t that a heating appliance? 8

MR. RASMUSSEN: Rett Rasmussen. It’s not 9

its primary function. And as I did state in my 10

statement, that thermostats are a very small 11

proportion of use with gas log sets. It’s just that 12

it’s a consumer choice. Some people want to have 13

that ability. Some

-- and again it goes back to the 14

efficiency of the fireplace in which it’s being 15

used. Some fireplaces are much more efficient than 16

others. Some homes are much more ti ghtly 17

constructed than others. A newer home, built to 18

more recent building standards, are going to have 19

much less air exchange with the outside. 20

Unfortunately, those types of standards that have 21

been put into place are creating the sick building 22

syndrome and other types of problems. You know, 23

over - regulation hasn’t helped a lot of people. It’s 24

causing a lot of health issues because they’re not 25Executive Court Reporters (301) 565

- 0064 117 getting the fresh air that they need in the room to 1

be healthy. So, yes, thermostats are more equated 2

with hea ters, but it is a function that the valve 3

system, some of them, not all, some of the valve 4

systems, the milli volt control ones, have as a 5

retrofit to them. They can either push a button or 6

they can put it on the wall, but it’s a control 7

device for turnin g it on and off, and as I said, 8

some people, more because they’re elderly, aren’t 9

going to want to reach down or be able to reach down 10

to the floor level or where the fireplaces is 11

located to be able to turn it off. So they may have 12

that extra little therm ostat on the wall to 13

accomplish that. 14

MR. BALLO: I can appreciate the heating 15

functionality is not the primary purpose, but it 16

seems to me that at some point it becomes such a 17

significant secondary purpose that it takes it out 18

of the realm of other prod ucts that also generate 19

heat. I’m not aware of anyone putting a thermostat 20

on their refrigerator because the thing makes too 21

much heat when it’s operating. I think there is 22

sort of a categorical difference with the extent to 23

which that secondary function is very significant 24

for some of these products. 25Executive Court Reporters (301) 565

- 0064 118 MR. RASMUSSEN: Rett Rasmussen. Yeah, but 1

cars have speedometers that go above 100 miles per 2

hour, but we don’t mandate governors to keep it 3

below 65. You know, there’s a certain amount of 4

free choice ou t there as to how things are going to 5

be used. These products, of their nature, as we’ve 6

discussed, are not heaters, but you do get a 7

residual heat benefit, which in most people’s world, 8

is an extra benefit. It’s a good thing that they 9

actually derive a little bit of heat benefit out of 10

it. We don’t sell it as primary heaters, by any 11

means, at best, just because of the nature of the 12

enclosures that they’re used in, they’re at best a 13

supplemental heater, definitely an emergency heat. 14

With the hurricane here, it wasn’t hot 15

enough, but the ice storms that happen, I can’t 16

believe the amount of calls we get from people 17

saying thank god I had my gas log set. I’d have 18

been cold and my family would have been in great 19

discomfort if I didn’t have that ability, b ecause I 20

didn’t have electricity to run the fans on my 21

heater, I didn’t have electricity to run my heat 22

pump. I had some means of instant on, instant off 23

controllable heat, as opposed to

-- you know, to get 24

the heat, they’re not going to be at the other e nd 25Executive Court Reporters (301) 565

- 0064 119 of the house to get it, they’re going to huddle up 1

right in front of it where they can derive the 2

benefit of the luminous flame, the logs actually 3

heating up and radiating some flame. But that’s not 4

what they’re there for. They’re not a primary 5

heater

. 6

MR. BROOKMAN: Okay. Leslie. 7

MR. BORTZ: Rett and I are partners in the 8

South Coast Air Quality Management Districts. We 9

happen to differ on this issue. I think that may be 10

why you should maybe talk to the people in the 11

industry. We don’t sell th ermostats, Rett does. 12

Okay. We do certain things in a certain way. I’m 13

not

-- I can’t speak for him even though he’s my 14

partner. He speaks for him, I speak for me. We 15

don’t have a problem with that. We agree. So I 16

think that there’s

-- and I do beli eve that if you 17

had the 20 people, 15, 20, 25 people that make gas 18

log sets, you would get, sometimes, ten or 15 19

different opinions on topics. I think that’s 20

normal. 21

MR. BROOKMAN: Okay. So final comment 22

right before we move on. Yes. 23

MR. RASMUSSEN: Rett Rasmussen. Believe 24

me, thermostats, on the scheme of things, I couldn’t 25Executive Court Reporters (301) 565

- 0064 120 care less about them. I mean they’re a very small 1

portion, most of them are sold with vent

- free gas 2

log sets. In fact ANSI Z21.60 prohibits the use of 3

a thermostatically contr olled device, so Z21.60 4

covers that just in and of itself if you do that. 5

If you decide to go outside of Z21.60, which I 6

recommend, to incorporate more of the market for gas 7

logs, sure. If you want to get rid of thermostats, 8

I don’t have a big problem wi th it. I just, as a

-- 9

again, I look at standards with regard to stifling 10

innovation and hurting the market. It is an option 11

which some customers

-- I respond to the market as 12

most manufacturers, most companies do. We have 13

people that ask, can I use it? Many things we say 14

no, you can’t, just as I spoke about the e

- mail from 15

the customer, the lady who had the vented gas 16

fireplace appliance and wanted to put our product 17

into it. I’m sorry, it’s not safe. You can’t do 18

that. Thermostats are

-- it’s not a huge issue. I 19

just bring it up. 20

MR. BROOKMAN: Okay. So we’re going to 21

move on now. Move on to the next topic, which is 22

moving on to Analysis of National Energy Savings. 23

John Cymbalsky. 24

Analysis of National Energy Savings 25Executive Court Reporters (301) 565

- 0064 121 MR. CYMBALSKY: Okay. Thanks Doug. So 1

this gets to Frank’s question earlier, what about 2

the national energy savings. Now we’ve heard a lot 3

about

-- from the opening remarks about how our 4

assumptions here and the data that we have might be 5

different than what you have, and so we would like 6

you to submit your data in writing, in spreadsheets, 7

however you have it. The more data the better. We 8

love data. We love numbers. 9

I’m not going to go through all of these 10

numbers here. I would just like to point out that 11

these are the numbers we used for the analysis. If 12

you take issue with them, please provide data, 13

source the data, the more the better. We like data. 14

So obviously there could be numbers that are 15

different than this, and we would like to see them. 16

So this is what we came up with. I would 17

just like to point out a few numbers here on this 18

page that I know, I heard in the room about the 19

housing industry and how that drives a lot of the 20

market. Just to let you know, in our shipments 21

analysis, the housing starts are a b ig part of how 22

we derive the shipments. So we are

-- we agree with 23

you on that, that the housing starts will drive to a 24

large extent, the shipments. 25Executive Court Reporters (301) 565

- 0064 122 Again, you can go through and you can pick 1

at every one of these numbers if you’d like. I 2

prefer not to get into every number here

. But if 3

you would please provide us comments on all the data 4

that you see here on this page, that would be great. 5

And going down to the bottom, essentially the bottom 6

line here is that we think we have about 120 7

trillion BTUs o f extra energy savings over the 2010 8

rule, final rule. 9

MR. BROOKMAN: Jack. 10

MR. GOLDMAN: Jack Goldman. Again, I need 11

to point out that the industry does not have the 12

benefit of the analysis done, other than what’s in 13

the preamble, and it puts the ind ustry at an extreme 14

disadvantage to basically comment on something which 15

involve a lot of assumptions and calculations 16

without being able to see them, and I think that’s 17

wrong. 18

MR. CYMBALSKY: Thank you. 19

MR. BROOKMAN: Thank you. Frank Stanonik. 20

MR. STANONIK: John, there is one thing 21

here that’s not let’s say intuitively obvious. When 22

you’re talking about the average unit energy 23

consumption, I’m assuming that’s the consumption of 24

both the burner and the pilot? Not just the pilot. 25Executive Court Reporters (301) 565

- 0064 123 Do you, off the top of your head, know what you 1

assumed was the average input of the pilot? 2

MR. CYMBALSKY: It’s not in the formula. 3

MR. STANONIK: I can work it backwards, I 4

was just curious. 5

MR. CYMBALSKY: Right. I don’t have that 6

number off the top of my head. 7

MR. STANONIK: Okay. 8

MR. BROOKMAN: James. 9

MR. RANFONE : Jim Ranfone from AGA. Is 10

there an economic analysis payback periods for the 11

requirement for 50s and 60s to go with electronic 12

ignition? Is there anything done on that? 13

MR. CYMBALSKY: So there’ll be a slide on 14

some economics in the back here. 15

MR. RANFONE : Okay. 16

MR. BROOKMAN: Okay. Leslie. 17

MR. BORTZ: Leslie Bortz. I don’t mean to 18

be disrespectful, but I did travel here from 19

California, and did spend several weeks trying to 20

put together some of the information. I would like 21

to discuss just one of these, for hopefully not more 22

than four minutes because I think it has something 23

to do with the quality of the research that you have 24

performed. I have this because I have one eye that 25Executive Court Reporters (301) 565

- 0064 124 doesn’t see, so I have to look at bigger letters in 1

order to see the words, I’m sorry. I have this 2

document which is the same as what is in the CFR. I 3

don’t know who prepared this document. I just am 4

saying that because on page 25

-- 5

MR. BROOKMAN: L eslie, can you identify 6

the document, please? 7

MR. BORTZ: I’m sorry. 8

MR. BROOKMAN: Yeah, please do that. 9

MR. BORTZ: This document says “US CA case 10

Number 10

- 1113 Document Number 1319806 filed 11

7/15/2011, page 1 of 56, Exhibit 1, Notice of 12

Proposed R ulemaking. 13

MR. BROOKMAN: Thank you for doing that. 14

Okay. Proceed. 15

MR. BORTZ: Okay. If you have that 16

document, if you don’t somebody will find it in the 17

CFR, on Page 25 of that document, you state, 18

“Continuous pilot energy use is 1250 BTUs per hour 19

for vented gas logs.” You then go to Footnote 20

Number 9. Footnote Number 9 says, “This value was 21

derived from data collected on the following 22

manufacturer websites.” Might take me a minute, 23

again, I apologize. 24

PARTICIPANT: It’s 43946 for people who 25Executive Court Reporters (301) 565

- 0064 125 are now searching for that. 1

MR. BROOKMAN: 43946. 2

MR. CYMBALSKY: Yes, in the Federal 3

Register notice, so Footnote Number 9 at the bottom 4

right. 5

MR. BORTZ: Right. Number 1, Pittsburgh 6

Gas Grill and Heater Company. They’re not a 7

manufacturer. T hey are a distributor or a dealer. 8

If you go to gas logs, vented gas logs on their site 9

and you spend more than the first minute looking at 10

FAQs, their site brings you to our site. If you’re 11

talking about FAQs, I talked to the owner of their 12

site and he sent me the following e

- mail. “This e

13

mail is to confirm that on our website, on our 14

Frequently Asked Questions page, question number 1 15

refers to ventless gas logs. We will correct this 16

error as soon as possible. Please do not hesitate 17

to contact me if you have any questions.” Number 18

one. 19

Number 2. Hargrove. They are a 20

manufacturer of gas logs. “To whom it may concern. 21

It has come to my attention that some of the 22

statistics that the Department of Energy is using in 23

making new regulations regarding gas log sets are 24

way off or misused.” He then gives various bits of 25Executive Court Reporters (301) 565

- 0064 1 26 information. I’d be happy to share it with you. He 1

says, pilots that have thermocouples, which are 90 2

percent of what vented gas logs have, use 600 BTUs, 3

not 1250. 4

MR. BROOKMAN: And just say who’s that

-- 5

who’s that from? 6

MR. BORTZ: Hargrove, the number two 7

person. 8

MR. BROOKMAN: Gotcha. Okay. 9

MR. BORTZ: Number three. And when I’m 10

done with Number 3, Number 4 and Number 5 will be 11

quick. Leonard’s Stone and Fireplace. Th ey are not 12

a manufacturer of gas logs. They are a dealer or a 13

distributor. When you go to their Frequently Asked 14

Questions, I will read their answer. It says “How 15

much gas logs does the pilot light use? A pilot 16

light will burn 800 to 1500 BTUs per hour . Your 17

monthly gas bill should include your exact cost per 18

therm, 100,000 BTUs. Based on this rate, you can 19

calculate the cost for your area to operate a pilot 20

light.” They’re in Fort Worth, Texas. 21

Number 4, Fireside Hearth and Home, 22

they’re also not a manufacturer of gas logs. Go to 23

their Frequently Asked Questions, read the answer to 24

their question, and it’s the exact same words, 25Executive Court Reporters (301) 565

- 0064 127 letter for letter. All of these Frequently Asked 1

Questions are the exact same questions, word for 2

word. 3

To the last o ne, Heatilator. Heatilator 4

is a major manufacturer, probably the biggest, 5

probably by far the biggest. Read their answer. 6

It’s the exact same words. There’s not a single 7

letter that’s different. All of the Frequently 8

Asked Questions are the same. Tha t’s not a way to 9

investigate pilot usage. That is a poor job. I’m 10

sorry, I don’t mean to sound as confrontational as I 11

am, but I come here from California, and you have 12

not done

-- I’m an American. I’m 67 years old. You 13

can’t do this to me. You can’t do this to us. Your 14

research is just horrible. It’s not in keeping with 15

what I would think the federal government should be 16

doing. It’s wrong. Basically just totally wrong, 17

and it doesn’t take into consideration that anybody 18

did more than two minutes o f just putting something 19

together. 20

MR. BROOKMAN: Thank you. Jack. 21

MR. GOLDMAN: Jack Goldman. Just to 22

further amplify that, the last company that was in 23

the survey of websites makes no gas log sets, and 24

yet it’s cited for BTU content of gas log sets . I 25Executive Court Reporters (301) 565

- 0064 128 would like to know how that happened. 1

MR. BROOKMAN: Okay. So there’s a lot of 2

data here on Slide 18. Any additional comments on 3

Slide 18 before we move on. Frank. 4

MR. STANONIK: With some assistance here, 5

just to correct and not have John do s tuff he 6

doesn’t need to do. I really asked the wrong 7

question. It turns out that those average 8

consumptions are actually the pilot energy 9

consumption, and so I don’t really need to know the 10

average input of the burners. I got help too, but I 11

checked it myself, and that’s just pilot energy. 12

MR. CYMBALSKY: Okay. So it

-- it flows 13

from top to bottom, Frank. 14

MR. STANONIK: Yes. 15

MR. BROOKMAN: Okay. Thank you. 16

MR. CYMBALSKY: Okay, so one last plea to 17

submit data on all this. Thank you. 18

MR. BR OOKMAN: Okay. Let’s move on. 19

MR. CYMBALSKY: Move on to Small Business 20

Impacts. 21

Small Business Impacts 22

MR. CYMBALSKY: Residential direct heating 23

equipment, including hearth product manufacturing is 24

classified under the NA I C S Code 333414, Heating 25Executive Court Reporters (301) 565

- 0064 129 Equipment, except warm air furnaces manufacturing. 1

The size threshold for a small business is 500 2

employees or fewer. In our work we identified ten 3

vented gas hearth direct heating equipment small 4

business manufacturers in the April 2010 final rule. 5

DOE also identified seven manufacturers of 6

vented gas log sets, three of which also manufacture 7

vented gas hearth products. 8

In our work we estimated manufacturer 9

compliance cost of the amended definition, based on 10

analysis done in April 2010 final rul e. We assume 11

that the primary cost of compliance to this would be 12

to recertify products to the applicable ANSI 13

standards if they are modified to meet the 14

exclusion. DOE estimated these costs will be 15

approximately $693,000. 16

I know we’ve heard in the ope ning remarks 17

-- we heard from you that these numbers may be 18

different than what you expect, so we’ll take 19

comment on this slide. 20

MR. BROOKMAN: Jack. 21

MR. GOLDMAN: Well, this is going to be 22

repetitious. Jack Goldman. I would like to know 23

the basis fo r these calculations and assumptions, 24

and particularly the assumptions. Assumptions are 25Executive Court Reporters (301) 565

- 0064 130 assertions unless there’s some thinking behind them. 1

And we have not been

-- it has not been shared with 2

us what the basis for the assumptions that were 3

made. And gi ven that gas log sets were not even 4

considered, supposedly, in the April 2010 rule, I 5

don’t know how you can base information from that 6

rule on this new proposal. Thank you. 7

MR. CYMBALSKY: I again, ask you to 8

provide any data that would get to this iss ue, 9

please. 10

MR. BROOKMAN: Frank. 11

MR. STANONIK: Frank Stanonik. The ten 12

vented gas hearth direct heating equipment 13

manufacturers that you have identified, do you know 14

does that include both companies that manufacture 15

both fireplace heaters and decora tive fireplaces? 16

MR. CYMBALSKY: It’s a mix, so yes. 17

MR. STANONIK: Are they

-- are they 18

distinctly identified in any way? 19

MR. CYMBALSKY: I don’t think we listed 20

them out in the rule. 21

MR. STANONIK: Okay. 22

MR. BROOKMAN: Leslie. 23

MR. BORTZ: L eslie Bortz. You say here 24

that you’ve identified four. My concern is your 25Executive Court Reporters (301) 565

- 0064 131 identification process. Had you gone to the HPBA 1

membership directory, which couldn’t have been that 2

hard since you were talking to HPBA this whole time, 3

you would have found 20 t o 30 to 35 names there. 4

Had you gone to Hearth and Home magazine, which is 5

the industry’s trade magazine, you would have found 6

30 or 40 names there. Had you gone to Washington 7

Gas, which puts out a huge booklet every year about 8

natural gas , I think most of you live in WSSC or 9

Washington Gas area, you would have seen this. Had 10

you Googled “gas logs,” you would have gotten eight 11

million

- plus responses, or eight million answers. 12

How can you say you’re doing research? 13

Again, I don’t mean to be

-- I am

-- I 14

just can’t believe

-- I am, and maybe I do mean to 15

be. I don’t believe that this is research. You’re 16

my Department of Energy. That’s not fair. 17

MR. BROOKMAN: Rett. 18

MR. RASMUSSEN: Rett Rasmussen. Yeah, 19

we’ve pretty well established and I’m sure H PB A will 20

back up that the majority, not the majority, 21

probably about all except for maybe one manufacturer 22

that also makes the gas fireplace appliances, is a

- 23

- we’re all that manufacture gas log sets small 24

businesses. Our companies, 40, 45 people. The 25Executive Court Reporters (301) 565

- 0064 132

e conomy was huffing on better cylinders, things were 1

doing a lot better, we had, you know, maybe 75, and 2

that’s also for making our gas grill products. So 3

we’re not just solely gas logs. 4

It will have a tremendous impact on small 5

business, there’s just no doubt about it. It is a 6

tremendous

-- and it is not just our manufacturing 7

businesses. You know, we touch a lot of lives, a 8

lot of other businesses in our day

- to

- day. You 9

know, the people we buy the cement from, the 10

aggregate, the steel, the boxes, t he cartooning 11

materials, the families of our employees that we 12

support through our wages, the insurance agent, the 13

insurance companies that get our premiums. Health 14

insurance. All on down the line, it’s a lot of 15

lives that we touch, so it’s not just Lesl ie and I 16

that are here and our other manufacturers that chose 17

not to be here today, it’s very far

- reaching, and I 18

just ask that as representatives of our government 19

that you take that into account as you are imposing 20

rules on the governed. 21

MR. BROOKMAN: Thank you. Additional 22

comments on Slide 20, small business impacts. Any 23

additional comments? James. 24

MR. RANFONE : Just a quick question. Jim 25Executive Court Reporters (301) 565

- 0064 133 Ranfone from American Gas Association. What is the 1

penalty, the DOE penalty, or the federal penalty for 2

non - compliance, whether it’s on the standing pilot

- 3

- let’s assume that went into place, or the 4

efficiency level wasn’t met? I thought I remembered 5

it was $100 a day for every model or every piece 6

produced. Is that correct or not? What is the 7

penalty for s mall businesses? 8

(Comment off mic) 9

MR. RANFONE : I think when you’re looking 10

at impact to small business, that’s an important 11

issue, whether or not companies want to stay in 12

business, based on the fact that these penalties may 13

be imposed on, whether it ’s the gas log requirement 14

or the minimum efficiency requirement. 15

MR. BROOKMAN: Dan Cohen. 16

MR. COHEN: Dan Cohen, DOE General 17

Counsel. Just to be clear on that, there’s a 18

requirement that the penalty amounts be amended 19

periodically for inflation, so I just don’t remember 20

the exact

-- 21

MR. RANFONE : It’s probably more then. 22

MR. COHEN:

-- last time

-- yeah. 23

(Comment off mic) 24

MR. BROOKMAN: So, for the record, repeat 25Executive Court Reporters (301) 565

- 0064 134 that again, John. 1

MR. CYMBALSKY: So, Ashley Armstrong in 2

the back who works o n certification , compliance and 3

enforcement stated that there is guidance on our 4

website that will tell you how much the fine 5

schedule is. 6

MR. BROOKMAN: Okay. So I thought I saw 7

some other folks on this side of the room that had 8

comments. No? All set ? 9

MR. CYMBALSKY: Actually, I think that the 10

last remark from Rett was actually a very good segue 11

into closing remarks, because it sounded a lot to me 12

like a closing remark. 13

Submitting Written Comments 14

MR. CYMBALSKY: The last two slides just 15

pretty m uch give you the instructions on submitting 16

written comments. Again, we appreciate all comments 17

in written form. We appreciate as much data that’s 18

not proprietary that you can provide us, so that we 19

can look at our analysis. 20

Again, here’s all the infor mation, comment 21

period closes September 20, 2011, so that’s about 22

three weeks away. 23

And then here’s some important web links 24

for our program, and in particular, this rulemaking. 25Executive Court Reporters (301) 565

- 0064 135 And in closing, for me I just want to 1

thank everybody for traveling here , long distance 2

especially. Thank you for your views on this and we 3

-- in advance, I appreciate any written comments and 4

data that you will provide us to support this 5

rulemaking. Thank you. 6

MR. BROOKMAN: Tim Ballo. 7

MR. BALLO: It’s not so much a clo sing 8

remark, actually, I just had a question, if any of 9

the manufacturers feel comfortable answering. I 10

think maybe one or two of you in your opening 11

remarks discussed the cost of moving to electronic 12

ignition in these products and suggested it would be 13

i n the order of $600 per product, and I’m just 14

wondering, if that’s true, why would anyone want 15

that in their

-- why do you sell any at all if 16

they’re so much more expensive, and the amenity to 17

me doesn’t seem worth it. 18

MR. RASMUSSEN: Rett Rasmussen. I’ ll 19

start. You’re right. Proposed the way that this 20

rule is, where it would require it on all retrofit 21

gas log sets, you’re right, people wouldn’t want 22

that. Where people are using it mostly are in 23

extensive remodels or new construction fireplaces, 24

where they’re creating a vault adjacent to, but 25Executive Court Reporters (301) 565

- 0064 136 outside of the firebox, where they can locate all of 1

these components, and then they’re integrating it in 2

to these whole house automation, smart home systems, 3

where they can, with one remote, they can turn on 4

the lights, lift the blinds, turn on the gas log set 5

from their one remote. But that’s just such a small 6

proportion of the gas log sales that are out there, 7

and I think I said that it was 3.6 at best. My 8

sense it’s well less than five percent of all of the 9

g as log sets that are sold out there. 10

MR. BROOKMAN: Leslie, go ahead. 11

MR. BORTZ: We’ve been gathering 12

statistics, and I’ve been traveling, and my attorney 13

has asked for various statistics and have been 14

trying to get them, and as you know, they’re not as 15

easy to get when you ask a specific question. We 16

don’t keep records, necessarily, the way your 17

questions are, any of you. But that’s fine, we’d be 18

happy to do it. 19

My guess

-- that’s preamble to my guess is 20

that half of the IPIs that we sell are fo r LP. 21

Fifteen percent, maybe a little less than 15 percent 22

of the logs that we sell are for LP. LP people are 23

much more conscious because LP is more expensive, so 24

we broke out in our testimony, natural gas from LP, 25Executive Court Reporters (301) 565

- 0064 137 and said that maybe some number, I don’ t remember, 1

less than half of the people on natural gas turn 2

their pilots off seasonally, but almost all of the 3

people on LP do. I think LP, for a similar amount 4

of energy, may be two and a half to three times as 5

expensive. I don’t know. But people who use LP are 6

very conscious of the costs involved. They have

-- 7

they’re smaller. They buy these products, but 8

they’re conscious of the cost involved, so you can 9

see that when the cost gets to be an issue, it does 10

become at least for some people, worthwhile to do. 11

It’s not an issue on the 85 percent

-- and I think 12

we’re a little bit high on LP because Florida is a 13

lot LP and we happen to be a good distribution in 14

Florida, and he doesn’t yet. 15

MR. BROOKMAN: Okay, Rett, you’re next, 16

and before you go, we’re going to move towards 17

closing remarks. I’m going to distribute

-- the 18

Department puts together a copy of the business 19

cards of all the attendees here, so we’ll distribute 20

these now. Rett, please. 21

MR. RASMUSSEN: Rett Rasmussen. Well, in 22

follow up to Leslie, I hope not to be restricted 23

from going after his piece of the market in Florida 24

and in other places, but one more amplification to 25Executive Court Reporters (301) 565

- 0064 138 your question, Tim. 1

Some people fear gas. They’re just 2

inherently afraid of gas, either from a lifetime 3

experience , or frankly, from gas companies. Gas 4

companies do a very good job of instilling fear of 5

gas into their customers. Oh, don’t light that 6

pilot yourself, call us, we’ll come out and light 7

the pilot. So they’ll say, okay, I’d like a pilot

8

less ignition sys tem, so you present that to them. 9

Then they see the cost, and they go, well maybe I’m 10

not that afraid of it. Go with the standing pilot 11

system or something else. Or match

- lighted if it’s 12

natural gas. 13

Propane, they have no choice. They have 14

to have a standing pilot system, or an electronic 15

ignition system. Economics comes to play a big part 16

in it, that’s why it’s such a small part of our 17

sales. It is very expensive, that and then the size 18

issue. It takes away from the decorative effect of 19

our deco rative appliances. 20

MR. BROOKMAN: Leslie, it looks like 21

you’ve got something else there. 22

MR. BORTZ: I just wanted to

-- 23

MR. BROOKMAN: Yes, please do. 24

MR. BORTZ:

-- do one last thing. This is 25Executive Court Reporters (301) 565

- 0064 139 something that I made up and we’ve been sending this 1

out to all over the United States for

-- we haven’t 2

updated it for 2011 yet. It talks about why you 3

should use natural gas in your wood burning 4

fireplace. And I think what you have to do first is 5

realize what the alternatives are, before you can 6

say whet her a product is efficient or not, you have 7

to realize what are the alternatives. 8

But I talk about all fossil fuels are not 9

created equal. And I talk about cleanliness and 10

plentiful and more economical and comes from North 11

America, and save a tree. Thi s was done in 2009 and 12

2010 , 2008 and 2007, and I don’t see anything on 13

there about heat. The word heat or warmth isn’t on 14

there. We don’t sell it that way. You can take a 15

look. Some people, obviously, business you know, 16

people advertise they do things , but we’re sitting 17

here trying to sell the cleanest, most abundant 18

fuel. 19

MR. BROOKMAN: Okay. Jim. 20

MR. RANFONE : Oh, no. 21

MR. BROOKMAN: No? So, Rett. 22

MR. RASMUSSEN: Just one more thing. Rett 23

Rasmussen. Going back to our discussion about 24

therm ostats. People see flame, the consumer, and 25Executive Court Reporters (301) 565

- 0064 140 they’re naturally going to ask, well, how much heat 1

does it put out? I don’t care what labels you put 2

on it, this and that, people see flame

-- it goes 3

back to something hard wired into human beings, you 4

know, from the first day that Og, the caveman, saw 5

fire that sustained itself after lightning strike 6

and then was able to figure out, hey, it takes the 7

chill away. And an open fire, in a camp fire 8

situation is not very efficient as a heater, but it 9

provides war mth and comfort to that person. 10

That’s what our products do as a byproduct 11

of the decorative effect. When people ask me, why 12

would I want a gas log set, the first thin g I talk 13

about is how good it makes that otherwise black hole 14

in the wall appear for t he 95 percent of the time or 15

more that it’s not in use. So it’s all part of 16

decorating a home. People

-- you know, a fireplace 17

is normally the focal point of the room in which 18

it’s in. People spend all kinds of money on 19

furniture, draperies, wall coveri ngs, art work, 20

everything else that sits on the coffee table, and a 21

lot of times they’ve put nothing into the fireplace, 22

which is the focal point. A gas log set is a very 23

inexpensive way of furnishing that fireplace. And 24

then you can get into screens and tool sets and 25Executive Court Reporters (301) 565

- 0064 141 fenders and andirons and things like that, but 1

that’s up for the dealer to work at. But that’s

-- 2

that’s really kind of tying in a little bit more on 3

the benefits of gas logs. 4

MR. BROOKMAN: Okay, then let’s move to 5

closing remarks. I wo uld say, in my experience, 6

running a lot of these meetings for many years, 7

we’ve never had as complete a set of opening remarks 8

as we did this morning, so all that information that 9

was laid out and read into the record, it’s going to 10

be there in the comple te transcript of this meeting. 11

I don’t think we need to repeat all of that, but 12

perhaps there are additional closing comments now as 13

we move towards closure of this meeting. 14

Cl osing Remarks 15

MR. BROOKMAN: Yes, Leslie. 16

MR. BORTZ: You’re going to get a lmost 17

everything in this book , not the copy of the CFR. 18

Jack Goldman asked you, and I ask you, what is your 19

research based on, and I know you’re not going to 20

answer. I’m going to stop. 21

MR. BROOKMAN: For the record, let me just 22

say that you’ve got a fo lio there, a ring binder 23

with about two or three inches of materials in it, 24

so thanks for offering that up for the Department of 25Executive Court Reporters (301) 565

- 0064 142 Energy. Let me see, Robert. 1

MR. ELLIOTT: Bob Elliott, with National 2

Propane Gas Association. When I look at this Notice 3

of Proposed Rulemaking and the conduct of the public 4

meeting, and you read through it

-- and I’m not 5

familiar with this section of the energy policy 6

conservation act, but I used to know Robert’s Rules 7

of Order pretty well and that sort of thing

-- but 8

when y ou read through this, it keeps using the word 9

discussion, and to me it just seems like the burden 10

of proof is on us, and yet you have a very robust 11

representation of the industry, and question after 12

question, with the exception of Mr. Cohen, you know, 13

ther e’s been no response whatsoever. And to me 14

that’s just not an open discussion. And I just 15

would encourage you to, before you conclude the 16

meeting, to give some thought to the resolve of this 17

issue. I mean you’ve got all the players here, at 18

least you’ve certainly got a lot of the 19

stakeholders, and you just listened to our comments 20

and now you’re going to conclude. You’ve got people 21

that have come from California, you’ve got, you 22

know, ... day out, we’ve got four hours, we’re 23

supposed to go to four p.m., y et this has been sort 24

of a one

- sided discussion. 25Executive Court Reporters (301) 565

- 0064 143 So I kind of encourage you and also 1

challenge you to take advantage of this opportunity 2

and see if we can’t come to some meeting of the 3

minds or something. 4

MR. BROOKMAN: Okay. Frank. 5

MR. STANONIK: Frank Stanonik with AH R I. 6

The discussion today and the NOPR talks about 7

excluding certain products based on certain 8

criteria. And I guess I would just like to suggest 9

that maybe the Department should look at turning 10

that around and simply identifying th ose products 11

that are including, based on having certain 12

characteristics. In other words, let’s not talk 13

about gas logs that have these features or whatever, 14

maybe the idea is that if there is some apparent 15

decorative appliance, but in fact it is advertis ed 16

as a heater or it is advertised as operating at X 17

efficiency, that’s included. 18

So maybe the approach here should be that 19

you identify products that are included by their 20

characteristics, not ask the industry to make 21

accommodations to in fact validat e their products 22

aren’t included. 23

MR. BROOKMAN: Okay. Thanks. Additional 24

comments, closing remarks. Rett. 25Executive Court Reporters (301) 565

- 0064 144 MR. RASMUSSEN: Rett Rasmussen. The 1

comment period closes on September 20 th and just 2

supposing DOE takes into account the testimony, the 3

comm ents that have been made and recognizes that 4

changes need to be made. I’m unfamiliar with what 5

the process would be from this point on, and I would 6

appreciate enlightenment as to what that would be. 7

MR. BROOKMAN: John Cymbalsky. 8

MR. CYMBALSKY: Okay. So we’ll take your 9

comments throughout the comment period and then 10

there’s a 90

- day minimum period for the final rule, 11

so we accept all your comments, we look at them, we 12

respond to them in the final rule. 13

MR. RASMUSSEN: So you’ll

-- you respond 14

to ea ch comment

-- 15

MR. CYMBALSKY: In the preamble. 16

MR. RASMUSSEN: Individually? 17

MR. CYMBALSKY: Correct. We group a bunch 18

together that are similar, and respond. 19

MR. RASMUSSEN: Pardon me, I’m sorry. 20

Will the responses be more than what we’ve had to day 21

of “thank you for your comments”? Because that is a 22

response. 23

MR. CYMBALSKY: Right. 24

MR. RASMUSSEN: You know, will we be

-- 25Executive Court Reporters (301) 565

- 0064 145 will they be viewed on the merits of the comments 1

that we’ve made? 2

MR. CYMBALSKY: Yes. Correct. 3

MR. RASMUSSEN: And at what point

-- 4

where’s the tipping point that says we need to 5

revise the text that’s in the proposed rule? Where 6

is that tipping point? Maybe you can’t answer that 7

now, but there’s got to be one someplace, and it may 8

be on the first comment that’s made , it may be on 9

something else. We’ve already pointed out large 10

deficiencies in the research that was done to 11

support these particular provisions of the exclusion 12

or the other parts. What is the process then? You 13

get to the end of the 90 days after answe ring the 14

comments, what happens? What if you decide we’ve 15

got to do something else? How does that process 16

work and how are we notified of that? 17

MR. COHEN: This is Dan Cohen. So just to 18

be clear on the 90 days, that is a legal requirement 19

between the publication of a proposed rule and the 20

publication of a final rule. We can’t publish 21

earlier than that. It has to be at least that 22

spread between the publication of both rules. 23

Ninety days from July

-- whatever it was

-- 24

MR. CYMBALSKY: July 22 nd

. 25Executive Court Reporters (301) 565

- 0064 146 M R. COHEN: July 22 nd . So we couldn’t 1

publish a final rule prior to 90 days from then. 2

So what we do is, as John said, we’ll go 3

through all the comments that have

-- that we get 4

both here and through the remainder of the comment 5

period. To the extent we have to do additional 6

research, we will do that. We will look at all the 7

information we’re provided. We’ll come up with 8

substantive responses. 9

Just theoretically, because I’m not going 10

to say

-- we don’t know what we would do with that

- 11

- there’s two possibilities

-- well, there’s a range 12

of possibilities. One is we look at all the 13

information

-- one extreme would be we look at all 14

the information and say, doesn’t change our minds, 15

we go forward. The other extreme I guess is, we 16

look at all the infor mation and say, oh my goodness, 17

stop. Anywhere in between is obviously an option 18

too. 19

It could be that one potential is we look 20

at the information, it leads us to make revisions in 21

the proposal, and we go out with a final rule with 22

those revisions. To the extent that those revisions 23

potentially

-- and again, this is all just 24

generically process

- wise

-- to the extent that those 25Executive Court Reporters (301) 565

- 0064 147 revisions might be significant enough that we need 1

additional comment, we would go out with another 2

proposal, and seek more comm ent. 3

MR. RASMUSSEN: And so any changes that 4

are made will, in fact, be open to public comment or 5

-- 6

MR. COHEN: May or may not. 7

MR. RASMUSSEN:

-- may or may not? 8

MR. COHEN: May or may not, right. 9

Depends on the extent of the changes. 10

MR. RASM USSEN: Ooph. Okay. 11

MR. BROOKMAN: Jack. 12

MR. RASMUSSEN: Thank you. 13

MR. GOLDMAN: Jack Goldman. I’d like to 14

pose a question to John Cymbalsky and Dan Cohen, 15

which came up as a result of this discussion. I 16

would like to know what the national eme rgency is 17

that requires this rule to be issued so quickly, 18

especially given the dearth of information that you 19

have in your preamble, and the complete lack of 20

information that you have in your rulemaking record. 21

I wonder is this a national energy emergenc y that 22

requires this, because the Department usually moves 23

with a little more deliberate speed than 90 days 24

from start to finish. 25Executive Court Reporters (301) 565

- 0064 148 MR. BROOKMAN: Dan. 1

MR. COHEN: Dan Cohen. Again, I would 2

just point out that all of the 90 days, just to be 3

clear about this, is just a minimum time period in 4

the statute. I’m not saying we’re going to do it 5

within 90 days. I’m just saying that is

-- John 6

referred to a 90 day period, that’s what the 90 days 7

is. 8

MR. GOLDMAN: I would like to point out 9

that in opposition to a motion for a briefing 10

schedule, which is a public document, the agency has 11

committed to a 90 day period. So you told the court 12

that you’re going for the minimum. So I’d like to 13

know why you’re doing that. 14

MR. COHEN: I’m just not going to comment 15

on the litigation. 16

MR. GOLDMAN: No, I’m using the litigation 17

simply as the evidence that you have committed to a 18

90 day period. I am asking you, from a regulatory 19

point of view, why you are going with a 90 day 20

period. It has nothing to do with litigat ion except 21

I’m using the brief as proof that you’ve committed 22

to 90 days. 23

MR. COHEN: Again, I’m just

-- you say 24

that’s a matter that is in the litigation

-- 25Executive Court Reporters (301) 565

- 0064 149 MR. GOLDMAN: No, that matter is not 1

litigation. You have said in a public document to 2

the co urt that you were committing to 90 days. I’m 3

not asking you about your litigation strategy. I am 4

asking you why you have committed to 90 days, and if 5

it’s for litigation, then that is a distortion of 6

the regulatory process. But I’d like to know, from 7

a regulatory point of view, why you’ve committed to 8

90 days. 9

MR. BROOKMAN: Yeah. So he’s not going to 10

respond. Jane, did you wish to comment? No? Okay. 11

Leslie. 12

MR. BORTZ: Number one. I stand ready to 13

help you, if you need information. I think yo u need 14

information. It’s up to you to think whether you

-- 15

what you think. I’m standing ready to help you, 16

number one. 17

And despite the fact that, as you can 18

tell, I disagree with you very strongly, I do thank 19

you for giving me this opportunity. At lea st you 20

gave me the opportunity, and I thank you for that. 21

Thank you. 22

MR. BROOKMAN: Okay. Yes, please say your 23

name for the record. 24

MR. CAGNOLI: Yes, Alan Cagnoli with HPBA. 25Executive Court Reporters (301) 565

- 0064 150 Considering the speed with which things are moving, 1

how fast will we be ab le to get the transcript in 2

our hands of this proceeding. Can we have it by 3

Tuesday? 4

MR. CYMBALSKY: Three business days, I’m 5

told. 6

MR. CAGNOLI: Three business days. Can 7

you tell me exactly which day that will be? 8

MR. CYMBALSKY: Well, then, we re view the 9

transcript after that, so

-- 10

MR. BROOKMAN: So

-- 11

MR. CAGNOLI: Then which day will it be? 12

MR. CYMBALSKY: What do you think, 13

Mohammed ? 14

MR. BROOKMAN: Mohammed Khan. 15

MR. KHAN: Mohammed Khan, DOE. Generally 16

we’ll receive the transcript from the court reporter 17

within two or three business days, as just 18

mentioned. Then it’s our responsibility to go over 19

it, check it for accuracy, and that might take just 20

a day, so after that then we can move forward with 21

making it publicly available. 22

MR . BROOKMAN: Perhaps then in the middle 23

of next week? 24

MR. CAGNOLI: I would rather have a date 25Executive Court Reporters (301) 565

- 0064 151 than a general description of when. 1

MR. CYMBALSKY: So three business days is 2

next Wednesday, since Monday is a holiday. Let’s 3

say the end of next week woul d be the earliest, so. 4

MR. CAGNOLI: And this is Alan Cagnoli 5

again. So with less than 60 days left before the 6

final rule, so we’re talking actually about

-- so 7

that would be eight weeks, we’re talking

-- we will 8

only have maybe seven or six weeks with which to 9

review the testimony and add those comments

-- add 10

that into our comments? And actually less time, 11

because the comments are due on the 20 th . Okay. I 12

just wanted to make sure that’s part of the record. 13

MR. BROOKMAN: Okay. 14

MR. CAGNOLI: Th ank you. 15

MR. BROOKMAN: Thank you. Leslie. 16

MR. BORTZ: What you’re saying is the 17

comments are due on the 20 th . You have to have time 18

to take a look at them. You will then go forward 19

with whatever you do. You don’t have to respond to 20

those comments, do you? Like you’re responding with 21

the transcript? You don’t have to do it? Do you 22

have to respond to those comments? 23

MR. KHAN: Yeah. 24

MR. CYMBALSKY: We look at all the 25Executive Court Reporters (301) 565

- 0064 152 comments that are submitted to us, up until 1

September 20 th

. 2

MR. BORTZ: Yes

. 3

MR. CYMBALSKY: And then as we read 4

through them, that is incorporated as deemed to be 5

fit in the final rule, so yes. 6

MR. BORTZ: The rule which will be out by 7

October 11 th . Excuse me, October 15 th

. 8

MR. BROOKMAN: I guess they don’t

-- 9

they’re not commenting on the date. 10

MR. BORTZ: They did. 11

MR. BROOKMAN: Say it again. 12

MR. COHEN: Dan Cohen. Just to be clear 13

on that date. That simply is a date which is a 14

minimum period of time by which

-- before which we 15

cannot publish a final rule. It d oesn’t mean we 16

will publish on that date, it just means we can’t do 17

it before that date. 18

MR. BORTZ: Fuzzy. 19

MR. BROOKMAN: Okay. Rett. 20

MR. RASMUSSEN: Rett Rasmussen. I’m 21

sorry, Mr. Cymbalsky, I think I heard you say right 22

now that you’re not speci fically answering comments 23

raised in this, that you’re incorporating it into

-- 24

and maybe I misheard you right now, but it sounded 25Executive Court Reporters (301) 565

- 0064 153 like you gave an answer different than you gave to 1

my question earlier. 2

MR. CYMBALSKY: No, I don’t think it was 3

different. We take all the comments and we respond 4

to the comments in the

-- 5

MR. RASMUSSEN: Thank you. 6

MR. BROOKMAN: Okay. So, I think

-- 7

MR. BORTZ: Respond to the comments? 8

That’s what you just said? 9

MR. CYMBALSKY: In the preamble, we 10

present all the comments that we receive, we group 11

them together, all the ones that are pertinent to 12

the rulemaking, yes. 13

MR. BORTZ: In the preamble? 14

MR. CYMBALSKY: Of the final rule. 15

MR. BROOKMAN: So I think we have now 16

concluded the closing remarks. From my perspective, 17

I would thank all of you for the candor and 18

straightforward discussion today and comment. Very 19

helpful, I think, to the Department. 20

I’m going to hand out an evaluation form 21

that’s one thing that the Department does for all 22

their meetings, and I will just turn it back to John 23

Cymbals k y for closing remarks. 24

MR. CYMBALSKY: Yeah, I think I have 25Executive Court Reporters (301) 565

- 0064 154 already said mine, but thanks for coming, and 1

appreciate all the heartfelt remarks today. Thank 2

you. 3

MR. BROOKMAN: Safe travels. 4

(Whereupon, at 12: 46 p.m., the meet ing in 5

the above captioned matter was adjourned .) 6

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REPORTER'S CERTIFICATEExecutive Court Reporters (301) 565

- 0064 155 This is to certify that the attached proceedings

before:

U.S. DEPARTMENT OF ENERGY

In the Matter of:

DIRECT HEATING EQUIPM EN T ENERGY CONSERVATION STANDARD NOTICE OF PROPOSED RULEMAKING

Were held as herein appears and that this is the

original transcript thereof for the file of the

Department, Commission, Board, Administrative Law

Judge or the Agency.

Further, I am neither counsel for or related to

any party to the above proceedings.



### Wendy Greene Official Reporter

Dated: September 6, 2011