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Proposed Rule2022-02386

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

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Published

February 7, 2022

Issuing agencies

Energy Department

Abstract

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

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<title>Federal Register, Volume 87 Issue 25 (Monday, February 7, 2022)</title>
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[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Proposed Rules]
[Pages 6786-6795]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02386]

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Proposed Rules
Federal Register
________________________________________________________________________

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

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

[[Page 6786]]

DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2021-BT-DET-0034]

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

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

ACTION: Notification of proposed determination and request for comment.

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

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

ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments. Alternatively, interested persons
may submit comments, identified by docket number EERE-2021-BT-DET-0034,
via email to <a href="/cdn-cgi/l/email-protection#094a667f6c7b6c6d4e687a597b666d7c6a7d7a3b393b384d4c5d39393a3d496c6c276d666c276e667f">[email&#160;protected]</a>. Include docket
number EERE-2021-BT-DET-0034 in the subject line of the message.
No telefacsimiles (``faxes'') will be accepted. For detailed
instructions on submitting comments and additional information on this
process, see section IV of this document.
Although DOE has routinely accepted public comment submissions
through a variety of mechanisms, including postal mail and hand
delivery/courier, the Department has found it necessary to make
temporary modifications to the comment submission process in light of
the ongoing coronavirus 2019 (``COVID-19'') pandemic. DOE is currently
suspending receipt of public comments via postal mail and hand
delivery/courier. If a commenter finds that this change poses an undue
hardship, please contact Appliance Standards Program staff at (202)
586-1445 to discuss the need for alternative arrangements. Once the
COVID-19 pandemic health emergency is resolved, DOE anticipates
resuming all of its regular options for public comment submission,
including postal mail and hand delivery/courier.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents/materials, is available for
review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are listed
in the <a href="http://www.regulations.gov">www.regulations.gov</a> index. However, not all documents listed in
the index may be publicly available, such as information that is exempt
from public disclosure.
The docket web page can be found at <a href="http://www.regulations.gov/docket/EERE-2021-BT-DET-0034">www.regulations.gov/docket/EERE-2021-BT-DET-0034</a>.
The docket web page contains instructions on how to access all
documents, including public comments, in the docket. See section VI,
``Public Participation,'' for further information on how to submit
comments through <a href="http://www.regulations.gov">www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT:
Ms. Julia Hegarty, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Office, EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Email:
<a href="/cdn-cgi/l/email-protection#f8b98888949199969b9dab8c99969c998a9c8ba98d9d8b8c9197968bb89d9dd69c979dd69f978e">[email&#160;protected]</a>.
Mr. Peter Cochran, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-9496. Email: <a href="/cdn-cgi/l/email-protection#86d6e3f2e3f4a8c5e9e5eef4e7e8c6eef7a8e2e9e3a8e1e9f0">[email&#160;protected]</a>.
For further information on how to submit a comment or review other
public comments and the docket contact the Appliance and Equipment
Standards Program staff at (202) 287-1445 or by email:
<a href="/cdn-cgi/l/email-protection#135263637f7a727d70764067727d777261776042667660677a7c7d605376763d777c763d747c65">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Rulemaking History
A. April 2010 Final Rule
B. November 2011 Final Rule
C. February 2013 Court Decision
D. December 2013 Coverage Determination
III. Current Rulemaking Process
IV. Scope of Coverage
A. Existing Classifications in ANSI Standards
B. Proposed Scope of Coverage
V. Evaluation of Miscellaneous Gas Products as a Covered Product
Subject to Energy Conservation Standards
A. Coverage Necessary or Appropriate To Carry Out Purposes of
EPCA
B. Average Annual Per-Household Energy Use
C. Preliminary Determination
VI. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act of 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act of 2001
K. Review Under Executive Order 13211
L. Review Under the Information Quality Bulletin for Peer Review
VII. Public Participation
A. Submission of Comments
B. Issues on Which DOE Seeks Comments
VIII. Approval of the Office of the Secretary

I. Statutory Authority

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

[[Page 6787]]

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

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

(1) Classifying the product as a covered product is necessary or
appropriate to carry out the purposes of EPCA; and
(2) The average annual per-household energy use by products of
such type is likely to exceed 100 kilowatt-hours (``kWh'') (or its
British thermal unit (``Btu'') equivalent) per year. (42 U.S.C.
6292(b)(1)) \5\
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\5\ DOE has defined ``household'' to mean an entity consisting
of either an individual, a family, or a group of unrelated
individuals, who reside in a particular housing unit. For the
purpose of the definition:
<bullet> Group quarters means living quarters that are occupied
by an institutional group of 10 or more unrelated persons, such as a
nursing home, military barracks, halfway house, college dormitory,
fraternity or sorority house, convent, shelter, jail or correctional
institution.
<bullet> Housing unit means a house, an apartment, a group of
rooms, or a single room occupied as separate living quarters, but
does not include group quarters.
<bullet> Separate living quarters means living quarters:
[cir] To which the occupants have access either:
[ssquf] Directly from outside of the building; or
[ssquf] Through a common hall that is accessible to other living
quarters and that does not go through someone else's living
quarters; and
[cir] Occupied by one or more persons who live and eat
separately from occupant(s) of other living quarters, if any, in the
same building. 10 CFR 430.2.

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

(1) The average household energy use of the products has
exceeded 150 kWh per household for a 12-month period;
(2) The aggregate 12-month energy use of the products has
exceeded 4,200 gigawatt-hours;
(3) Substantial improvement in energy efficiency of products of
such type is technologically feasible; and
(4) Application of a labeling rule under 42 U.S.C. 6294 is not
likely to be sufficient to induce manufacturers to produce, and
consumers and other persons to purchase, covered products of such
type (or class) that achieve the maximum energy efficiency that is
technologically feasible and economically justified. (42 U.S.C.
6295(l)(1))

II. Rulemaking History

A. April 2010 Final Rule

On April 16, 2010, DOE published a final rule in the Federal
Register, which, in relevant part, promulgated definitions and energy
conservation standards for certain direct heating equipment, i.e.,
vented gas hearth products. 75 FR 20111 (``April 2010 final rule'').\6\
In the April 2010 final rule, DOE concluded that vented hearth
products--which were described as including gas-fired products such as
fireplaces, fireplace inserts, stoves, and log sets that typically
include aesthetic features and that provide space heating--meet the
definition of ``vented home heating equipment.'' Id. 75 FR 20128. In
the April 2010 final rule, DOE also adopted a definition of ``vented
hearth heater'' as a vented appliance which simulates a solid fuel
fireplace and is designed to furnish warm air, with or without duct
connections, to the space in which it is installed. The circulation of
heated room air may be by gravity or mechanical means. A vented hearth
heater may be freestanding, recessed, zero clearance, or a gas
fireplace insert or stove. Those heaters with a maximum input capacity
less than or equal to 9,000 British thermal units per hour (``Btu/h''),
as measured using DOE's test procedure for vented home heating
equipment (10 CFR part 430, subpart B, appendix O), are considered
purely decorative and are excluded from DOE's regulations. Id. 75 FR
20130.
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\6\ A correction to the April 2010 final rule was published on
April 27, 2010, to correct a date that is not relevant to this
discussion. 75 FR 21981.
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B. November 2011 Final Rule

On November 18, 2011, DOE published a final rule that amended the
definition of vented hearth heater, in relevant part, by removing the
maximum capacity threshold to distinguish vented hearth heaters from
purely decorative heaters and adding other criteria in its place to
determine such differentiation. 76 FR 71836 (``November 2011 final
rule''). These criteria included specific types of hearth products,
safety standard certifications, labeling, and prescriptive elements
(i.e., sold without a thermostat and without a standing pilot light).
Id. 76 FR 71859. The November 2011 final rule defined a vented hearth
heater as a vented appliance which simulates a solid fuel fireplace and
is designed to furnish warm air, with or without duct connections, to
the space in which it is installed. The circulation of heated room air
may be by gravity or mechanical means. A vented hearth heater may be
freestanding, recessed, zero clearance, or a gas fireplace insert or
stove. The following products are not subject to the energy
conservation standards for vented hearth heaters:
<bullet> Vented gas log sets; and
<bullet> Vented gas hearth products that meet all of the following
four criteria:
[cir] Certified to American National Standards Institute (``ANSI'')
Z21.50,\7\ but not to ANSI Z21.88; \8\
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\7\ ANSI Z21.50/CSA 2.22, ``Vented Decorative Gas Appliances''
is available at: <a href="http://webstore.ansi.org/standards/csa/ansiz21502016csa22">webstore.ansi.org/standards/csa/ansiz21502016csa22</a>.
\8\ ANSI Z21.88/CSA 2.33, ``Vented Gas Fireplace Heaters'' is
available at: <a href="http://webstore.ansi.org/Standards/CSA/CSAANSIZ218819332019">webstore.ansi.org/Standards/CSA/CSAANSIZ218819332019</a>.
---------------------------------------------------------------------------

[cir] Sold without a thermostat and with a warranty provision
expressly voiding all manufacturer warranties in the event the product
is used with a thermostat;
[cir] Expressly and conspicuously identified on its rating plate
and in all manufacturer's advertising and product literature as a
``Decorative Product: Not for use as a Heating Appliance''; and
[cir] With respect to products sold after January 1, 2015, not
equipped with a standing pilot light or other continuously-burning
ignition source.
Id. at 76 FR 71859.

C. February 2013 Court Decision

The Hearth, Patio & Barbecue Association (``HPBA'') sued DOE in the
United States Court of Appeals for the District of Columbia Circuit
(``D.C. Circuit'') to invalidate the April 2010 final rule and November
2011 final rule as those rules pertained to vented gas hearth products.
Statement of Issues to Be Raised, Hearth, Patio & Barbecue Association
v. Department of Energy, et

[[Page 6788]]

al., No. 10-1113 (D.C. Cir. filed July 1, 2010). On February 8, 2013,
the D.C. Circuit issued its opinion in the HPBA case and ordered that
the definition of ``vented hearth heater'' adopted by DOE be vacated,
and remanded the matter to DOE to interpret the challenged provisions
in accordance with the Court's opinion. Hearth, Patio & Barbecue
Association v. Department of Energy, et al., 706 F.3d 499 (D.C .Cir.
2013). The Court held that the phrase ``vented hearth heater'' did not
encompass decorative fireplaces as that term is traditionally
understood, vacated the entire statutory definition of ``vented hearth
heater,'' and remanded for DOE to interpret the challenged provisions
consistent with the court's opinion. Id. at 509. On July 29, 2014, DOE
published a final rule amending the relevant portions of its regulation
to reflect the Court's decision to vacate the regulatory definition of
``vented hearth heater'' (and by implication, the associated energy
conservation standards). 79 FR 43927.

D. December 2013 Coverage Determination

On December 31, 2013, DOE published a proposed determination of
coverage for hearth products. 78 FR 79638 (``December 2013 NOPD''). DOE
described hearth products as gas-fired equipment that provide space
heating and/or provide an aesthetic appeal to the living space. Id. 78
FR 79639. DOE proposed to define ``hearth product'' as a gas-fired
appliance that simulates a solid-fueled fireplace or presents a flame
patterns (for aesthetics or other purpose) and that may provide space
heating directly to the space in which it is installed, and provided
examples of products meeting this definition, including vented
decorative hearth products, vented heater hearth products, vented gas
logs, gas stoves, outdoor hearth products, and ventless hearth
products. Id. 78 FR 79640. DOE stated it had not previously conducted
an energy conservation standards rulemaking for hearth products with
the exception of the vented hearth heaters, which are no longer covered
products as a result of the Court ruling. Id. On February 9, 2015, DOE
published a NOPR proposing energy conservation standards for hearth
products. 80 FR 7082 (``February 2015 NOPR''). On March 31, 2017, DOE
withdrew the December 2013 NOPD \9\ in the bi-annual publication of the
DOE Regulatory Agenda.\10\
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\9\ Withdrawal of the December 2013 NOPD also resulted in the
withdrawal of the February 2015 NOPR.
\10\ Past publications of DOE's Regulatory Agenda can be found
at: <a href="http://resources.regulations.gov/public/component/main">resources.regulations.gov/public/component/main</a>.
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On further consideration of the Court's opinion, DOE believes that
DOE was overly broad in discussion of the Court's holding in the
context of vented hearth heaters in the withdrawn December 2013 NOPD.
In that vented hearth heaters provide space heating, classifying vented
hearth heaters as vented home heating equipment would be consistent
with the Court's opinion. (See the Court's explanation that decorative
fireplaces are outside the scope of direct heating equipment and that
the phrase ``vented hearth heater'' did not encompass decorative
fireplaces as that term is traditionally understood. (706 F.3d 499,
505, 509)) Therefore, although there are not currently energy
conservation standards for vented hearth heaters, these products are
appropriately covered as vented home heating equipment (and direct
heating equipment (``DHE'')). Because vented hearth heaters are already
covered as vented home heating equipment under EPCA, such products are
not part of this proposed coverage determination. To the extent DOE
considers energy conservation standards for venter hearth heaters, it
will do so in a separate rulemaking.

III. Current Rulemaking Process

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

IV. Scope of Coverage

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

A. Existing Classifications in ANSI Standards

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

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

[[Page 6789]]

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 6790]]

B. Proposed Scope of Coverage

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

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

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

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

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

As an initial step, DOE evaluated whether miscellaneous gas
products, which are comprised of decorative hearth products and outdoor
heaters, are ``consumer products'' under EPCA. As discussed in section
I of this document, a consumer product is any article (other than an
automobile) of a type--(A) which in operation consumes, or is designed
to consume energy; and (B) which, to any significant extent, is
distributed in commerce for personal use or consumption by individuals;
without regard to whether such article of such type is in fact
distributed in commerce for personal use or consumption by an
individual. (42 U.S.C. 6291(a)(1)) Miscellaneous gas products consume
energy during operation and are distributed in commerce for personal
use by individuals. Therefore, DOE has determined that miscellaneous
gas products are consumer products.
The following sections describe DOE's preliminary evaluation of
whether miscellaneous gas products fulfill the criteria for being added
as covered products pursuant to 42 U.S.C. 6292(b)(1). As stated
previously, DOE may classify a consumer product as a covered product
if:

(1) Classifying products of such type as covered products is
necessary or appropriate to carry out the purposes of EPCA; and
(2) The average annual per-household energy use by products of
such type is likely to exceed 100 kWh (or its Btu equivalent) per
year.

A. Coverage Necessary or Appropriate To Carry Out Purposes of EPCA

DOE has preliminarily determined that coverage of miscellaneous gas
products is necessary or appropriate to carry out the purposes of EPCA,
which include:

(1) To conserve energy supplies through energy conservation
programs, and, where necessary, the regulation of certain energy
uses; and
(2) To provide for improved energy efficiency of motor vehicles,
major appliances, and certain other consumer products. (42 U.S.C.
6291(4)-(5))

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

[[Page 6791]]

energy use of decorative hearth products is 0.0135 quadrillion British
thermal units (``quads'') (4.0 Terawatt-hours (``TWh'')),\14\ and that
the aggregate national energy use of outdoor heaters is estimated to be
0.0007 quads (0.2 TWh).\15\ DOE estimates that the aggregate national
energy use of decorative hearth products and outdoor heaters,
comprising miscellaneous gas products, is 0.0143 quads (4.2 TWh).
Coverage of miscellaneous gas products would further the conservation
of energy supplies through the regulation of energy efficiency.
Therefore, DOE has tentatively determined that coverage of
miscellaneous gas products is necessary and appropriate to carrying out
the purposes of EPCA, thereby satisfying the provisions of 42 U.S.C.
6292(b)(1)(A).
---------------------------------------------------------------------------

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

B. Average Annual Per-Household Energy Use

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

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

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

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

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

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

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

[[Page 6792]]

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

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

DOE estimates that decorative hearths account for 93 percent of the
miscellaneous gas product market and that outdoor heaters account for 7
percent. DOE calculated the weighted average per-household energy use
of a miscellaneous gas product to be 4.1 MMBtu/yr (1,211 kWh/yr).
Therefore, DOE has tentatively determined that the average annual per-
household energy use for miscellaneous gas products is likely to exceed
100 kWh/yr, thereby satisfying the provisions of 42 U.S.C.
6292(b)(1)(B).
Based on the above, DOE has tentatively determined that
miscellaneous gas products (comprised of decorative hearth products and
outdoor heaters) qualify as a covered product under Part A of Title III
of EPCA, as amended.

C. Proposed Determination

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

VI. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

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

B. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (``IRFA'')
for any rule that by law must be proposed for public comment, unless
the agency certifies that the proposed rule, if promulgated, will not
have a significant economic impact on a substantial number of small
entities. As required by E.O. 13272, ``Proper Consideration of Small
Entities in Agency Rulemaking'' 67 FR 53461 (Aug. 16, 2002), DOE
published procedures and policies on February 19, 2003 to ensure that
the potential impact of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. DOE has made its
procedures and policies available on the Office of the General
Counsel's website (<a href="http://energy.gov/gc/office-general-counsel">energy.gov/gc/office-general-counsel</a>).
This proposed determination would not establish test procedures or
energy conservation standards for miscellaneous gas products. If
adopted, the proposed determination would only positively determine
that future standards may be warranted and should be explored in an
energy conservation standards and test procedure rulemaking. Economic
impacts on small entities would be considered in the context of such
rulemakings. Therefore, DOE initially concludes that the impacts of the
proposed determination would not have a ``significant economic impact
on a substantial number of small entities,'' and that the preparation
of an IRFA is not warranted. DOE will transmit this certification and
supporting statement of factual basis to the Chief Counsel for Advocacy
of the Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act

Manufacturers of covered products must certify to DOE that their
products comply with any applicable energy conservation standards. To
certify compliance, manufacturers must first obtain test data for their
products according to the DOE test procedures, including any amendments
adopted for those test procedures. DOE has established regulations for
the certification and recordkeeping requirements for all covered
consumer products and commercial equipment. (See generally 10 CFR part
429) The collection-of-information requirement for the certification
and recordkeeping is subject to review and approval by OMB under the
Paperwork Reduction Act (``PRA''). This requirement has been approved
by OMB under OMB control number 1910-1400. Public reporting burden for
the certification is estimated to average 35 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number. As noted previously, this
proposed determination, if made final, would not establish any testing
requirements or energy conservation standards for miscellaneous gas
products.

D. Review Under the National Environmental Policy Act of 1969

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

[[Page 6793]]

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

E. Review Under Executive Order 13132

E.O. 13132, ``Federalism'' 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt state law or that have federalism
implications. The Executive order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process that it will follow in the development of such
regulations. 65 FR 13735. DOE has examined this proposed determination
and has tentatively determined that it would not have a substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. EPCA governs
and prescribes Federal preemption of State regulations as to energy
conservation for the products that are the subject of this proposed
determination. States can petition DOE for exemption from such
preemption to the extent, and based on criteria, set forth in EPCA. (42
U.S.C. 6297) Therefore, no further action is required by E.O. 13132.

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) Eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 12988 specifically requires that Executive
agencies make every reasonable effort to ensure that the regulation:
(1) Clearly specifies the preemptive effect, if any, (2) clearly
specifies any effect on existing Federal law or regulation, (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction, (4) specifies the retroactive
effect, if any, (5) adequately defines key terms, and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in sections 3(a) and 3(b) to determine
whether they are met or it is unreasonable to meet one or more of them.
DOE has completed the required review and determined that, to the
extent permitted by law, this proposed determination meets the relevant
standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'')
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. 62 FR 12820. DOE's policy statement is also available at
<a href="http://www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf">www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf</a>.
DOE examined this proposed determination according to UMRA and its
statement of policy and determined that the proposed determination does
not contain a Federal intergovernmental mandate, nor is it expected to
require expenditures of $100 million or more in any one year by State,
local, and Tribal governments, in the aggregate, or by the private
sector. As a result, the analytical requirements of UMRA do not apply.

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

Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This proposed determination would not have any impact on
the autonomy or integrity of the family as an institution. Accordingly,
DOE has concluded that it is not necessary to prepare a Family
Policymaking Assessment.

I. Review Under Executive Order 12630

Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15,
1988), DOE has determined that this proposed determination would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act
of 2001

Section 515 of the Treasury and General Government Appropriation
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR
62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24, 2019), DOE
published updated guidelines which are available at <a href="http://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf">www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf</a>. DOE has
reviewed this NOPD under the OMB and DOE guidelines and has concluded
that it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

E.O. 13211, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22,
2001), requires Federal agencies to prepare and submit to the Office of
Information and Regulatory Affairs (``OIRA'') at OMB a Statement of
Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgates or is expected to lead to

[[Page 6794]]

promulgation of a final rule, and that (1) is a significant regulatory
action under Executive Order 12866, or any successor Executive Order;
and (2) is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
This proposed regulatory action to classify miscellaneous gas
products as covered products is not a significant regulatory action
under Executive Order 12866. Moreover, it would not have a significant
adverse effect on the supply, distribution, or use of energy, nor has
it been designated as such by the Administrator of OIRA. Accordingly,
DOE has not prepared a Statement of Energy Effects.

L. Review Under the Information Quality Bulletin for Peer Review

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

VII. Public Participation

A. Submission of Comments

DOE will accept comments, data, and information regarding this
notification of proposed determination no later than the date provided
in the DATES section at the beginning of this document. Interested
parties may submit comments, data, and other information using any of
the methods described in the ADDRESSES section at the beginning of this
document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Otherwise, persons viewing comments will see only first and
last names, organization names, correspondence containing comments, and
any documents submitted with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (``CBI'')). Comments submitted
through <a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received
through the website will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email. Comments and documents submitted via
email also will be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>. If you do not want
your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. With this instruction followed, the cover letter will not be
publicly viewable as long as it does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. No faxes will be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, or text (ASCII) file format. Provide documents that are not
secured, that are written in English, and that are free of any defects
or viruses. Documents should not contain special characters or any form
of encryption and, if possible, they should carry the electronic
signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: One copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
It is DOE policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).

B. Issues on Which DOE Seeks Comments

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

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

[[Page 6795]]

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

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

VIII. Approval of the Office of the Secretary

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

Signing Authority

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

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

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.