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Federal Register / Vol. 86, No. 223 / Tuesday, November 23, 2021 / Rules and Regulations standards. 42 U.S.C. 6295q Because DOE is not prescribing new or amended standards for DHE, it is not amending the product classes for these products.

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3. Hearth Heaters In comments to the December 2020
final rule, the Joint Advocates and NEEA referenced DOEs prior analysis of hearth products and recommended the elimination of standing pilot lights.
Joint Advocates, No. 16 at p. 1; NEEA, No. 20 at p. 2 DOE clarifies that while hearth heaters are direct heating equipment per the definition in 10 CFR
430.2, such products were not considered in the context of this determination and such products are not subject to the standards for direct heating equipment at 10 CFR 430.32i.
In the NOPR that preceded the April 2010 final rule, DOE proposed that its test procedures for vented DHE i.e., Appendix O be applied to establish the efficiencies of vented gas hearth DHE.
74 FR 65852, 65861 Dec. 11, 2009;
December 2009 NOPR. DOE
described vented hearth products as including gas-fired products such as fireplaces, fireplace inserts, stoves, and log sets that typically include aesthetic features such as a yellow flame, and stated that consumers typically purchase these products to add aesthetic qualities and ambiance to a room, and the products also provide space heating.
74 FR 65852, 65866. DOE stated that vented hearth products meet DOEs definition of vented home heating equipment, because they are designed to furnish warmed air to the living space of a residence without duct connections.
Id. DOE proposed to establish standards for such products. Id.
In the April 2010 final rule DOE
concluded that vented hearth products as described December 2009 NOPR meet the definition of vented home heating equipment. 75 FR 20112, 20128. DOE
also adopted a definition of vented hearth heater different from that proposed in that, among other changes, removed explicit reference to fireplace heaters and included a maximum capacity threshold to distinguish vented hearth heaters from purely decorative heaters excluded from DOEs regulations. 75 FR 20112, 20130.
Following the April 2010 final rule, the Hearth, Patio & Barbecue Association HPBA challenged 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 an amendment to that rule published on November 18, 2011 76 FR 71836; November 2011

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final rule 8 as those rules pertained to vented gas hearth products. Hearth, Patio & Barbecue Association v.
Department of Energy, et al., No. 10
1113 D.C. Cir. filed July 1, 2010. On February 8, 2013, the Court ruled that DOE had improperly covered decorative fireplaces in the definition of vented hearth heater as established in the April 2010 final rule and amended in the November 2011 final rule. 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 courts opinion. Id. at 509. On July 29, 2014, DOE published a final rule amending the relevant portions of its regulation to reflect the Courts decision to vacate the regulatory definition of vented hearth heater and by implication, the associated energy conservation standards. 79 FR 43927.
On December 31, 2013, DOE
published a proposed determination of coverage for hearth products. 78 FR
79638 December 2013 NOPD. DOE
stated that hearth products are gas-fired equipment that provide space heating and/or provide an aesthetic appeal to the living space. 78 FR 79638, 79639.
DOE also stated vented hearth heaters are no longer covered products as a result of the Court ruling. On February 9, 2015, DOE published a NOPR
proposing energy conservation standards for hearth products. 80 FR
7082. This NOPR covered both vented and unvented vent-less hearth products. Id. at 80 FR 70887089. On March 31, 2017, DOE withdrew the December 2013 NOPD 9 in the bi-annual publication of the DOE Regulatory Agenda.10 On further consideration, DOE believes that it was overly broad in its discussing the Courts holding in the context of hearth heaters. Given that hearth heaters vented or unvented provide space heating and classifying hearth heaters as vented or unvented as 8 In the November 2011 final rule DOE amended the definition of vented hearth heater, to clarify the scope of the current exclusion for those vented hearth heaters that are primarily decorative hearth products by shifting the focus from a maximum input capacity limitation i.e., 9,000 Btu/h to a number of other factors, including the absence of a standing pilot light or other continuously-burning ignition source. Id.
9 Withdrawal of the December 2013 NOPD also withdraws the February 2016 NOPR.
10 Past publications of DOEs Regulatory Agenda can be found at: https resources.regulations.gov/
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applicable home heating equipment would be consistent with the Courts opinion. See 706 F.3d 499, 505. As discussed, currently there are not energy conservation standards for such products and such products were not considered in the analysis of whether the existing standards for vented and unvented home heating equipment should be amended. To the extent DOE
considers energy conservation standards for hearth heaters, it intends to do so in a separate rulemaking.
B. Analysis for This Final Determination 1. Overview of the Analysis As stated previously, in determining that amended standards are not needed, DOE must consider whether amended standards would result in significant conservation of energy, are technologically feasible, and are costeffective as described in 42 U.S.C.
6295o2BiII. 42 U.S.C.
6295m1A and 42 U.S.C. 6295n2.
An evaluation of cost-effectiveness under 42 U.S.C. 6295o2BiII
requires that DOE consider savings in operating costs throughout the estimated average life of the covered products in the type or class compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard. 42 U.S.C.
6295n2 and 42 U.S.C.
6295o2BiII Before potential energy savings and cost-effectiveness of amended standards can be estimated, available and working prototype technologies with the potential to improve energy efficiency must first be evaluated. Accordingly, DOE generally starts with this technology evaluation.
a. Technological Feasibility In evaluating potential amendments to energy conservation standards, DOE
first conducts a market and technology assessment to survey the products currently available on the market and identify technology options including prototype technologies that could improve the efficiency of the products or equipment that are the subject of the rulemaking. DOE then conducts a screening analysis for the technologies identified, and, as a first step, determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially-available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, sections 6a3iiiA and 7b1 Process Rule.

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