legislative news

Bob Harper · February 2013

On Friday, February 8, 2013, the U.S. Court of Appeals for the D.C. Circuit issued its long-awaited decision in HPBA v. DOE. The

decision addressed DOE’s April 16, 2010 and November 18, 2011 final

rules for “vented hearth heaters,” vacated DOE’s entire “vented hearth

heater” definition, and directed DOE to revise that definition

consistent with the court’s opinion. 

A more detailed legal analysis of the decision is attached and we will be holding a conference call on Wednesday, February 13th at 3:00 pm EST

(please note time change) to further discuss what the court’s decision

means, possible future developments, and provide time for a question and

answer session.

Key points of Friday’s decision include:

· There are currently no DOE requirements scheduled to take effect on April 16, 2013 for any vented gas hearth products

 

o The

court overturned DOE’s attempt to regulate decorative vented gas

fireplaces and vented gas log sets as “direct heating equipment”

(“DHE”), eliminating the “exclusion criteria” imposed by DOE;

o The new numerical values for annual fuel utilization efficiency (AFUE) still exist on paper, but do not currently apply to any products (heater-rated or decorative).

 

· While the court case is a significant victory, DOE may seek to challenge the decision in one of the following ways:

 

o An

appeals process, either to the entire panel of judges on the D.C.

Circuit, the same three judges who originally heard the case, or to the

U.S. Supreme Court;

o A motion seeking clarification or modification of the court’s decision.

 

· It is probable that DOE will attempt to use future rulemakings to regulate some vented hearth products going forward

 

o DOE

is likely to attempt to define gas fireplace heaters as DHE, subjecting

these products to the AFUE standards in the 2011 Final Rule; 

o The

court’s decision and admonishment of DOE’s regulatory overreach make it

substantially harder for the court to regulate decorative vented gas

fireplaces or vented gas log sets without DOE going through a much

lengthier and more involved rulemaking process.

It will be interesting to see how this ruling affects other efforts by the DOE with regards to HVAC equipment. FYI, what happened here was the DOE from nowhere announced they were banning all vented gas logsets >9,000 BTU/hr input rating. The Hearth, Patio and BBQ Assn. had to sue in federal court for the right to sit at the table as the primary stakeholder in this ruling that would have essentially shut down an entire industry. After several years and hundreds of thousands of dollars this industry could not afford, we have this reprieve but as you can see it probably is not over. Meanwhile, the HPBA is also battling the EPA and local air quality districts over clean air/ emissions stds. and with the CPSC over them forcing mfrs. of glass covered direct vent gas fireplaces to make barrier screens that are cool to the touch because parents don't want to be responsible for supervising their children with a hot fireplace in the room. This can bankrupt the industry because they want us to go back, spend gobs of money in R&D testing and designing screens that are cool to the touch in front of a very hot fireplace then pay about $15K per size and model of every fireplace to be re-listed. You cannot simply add a screen because this would dramatically raise the heat signature of the fireplace and cause a fire hazard. They also are demanding each screen carry a label stating "Hot to touch". Not very aesthetically pleasing esp. for such a focal point of a room. Anyway, this is what's going on in a related industry and once they've done it here, it can be done to the HVAC, water heater, pool heater and other industries. Just like banning standing pilots over electronic ignition systems. I'll try to keep you updated as I get more info.

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