26

a building code, such as healing and cooling equipment and Water

heaters, and not to appliances like refrigerators.

As a general rule, Section 7 prevents State building. codes from

being used as a means of setting mandatory State appliance standards in excess of the Federal standards. Subject to this restriction,

Section 7 permits regulations or other requirements concerning the'

energy efficiency or energy use of covered products in building

codes both before and after the effective date of a Federal standard

under specified criteria.

The Act contains three basic provisions with respect to building

codes. First, a "grandfather" provision covers energy efficiency

quirements Januar permitting them tosoperate dwi

or prescribed

thout preemption e until the

effective date of a Federal energy standard for a covered product.

Second, such a requirement enacted or prescribed on or after

January 8, 1987 in a code for new construction is not preempted

until the date of a Federal standard if the code does not require

that the energy efficiency of the covered product exceed the applicable minimum efficiency requirement in national voluntary consensus standards (such as those of the American Society of Heating, Refrigeration, and Air-Conditioning Engineers) or certain

other specified levels.

Third, on the effective date of a Federal standard for any covered

product, such a State regulation or other requirement for a covered

product in a code for new construction is not preempted if it does

not require that the covered product have an energy efficiency exceeding the Federal standard or the level permitted in a waiver of

preemption, and if it meets certain other criteria. The provisions

give the State flexibility in implementing performance-based building code approaches. Such approaches authorize builders to adjust

or trade off the efficiencies of the various building components, including certain covered products, so long as an overall energy objective is met. The section's limited restrictions are designed to

ensure that performance-based codes cannot expressly or effectively require the installation of covered products whose efficiencies

exceed either the applicable Federal standard or a State standard

for which a waiver from preemption has been granted.

Generally, H.R. 87 does not require a State or local government

to submit a petition to DOE in order to enforce or apply its building code for new construction. However, if the code requires the installation of covered products with efficiencies exceeding both the

applicable Federal standard and any applicable State standard that

has been granted a waiver of preemption, that requirement in the

building code shall not apply unless DOE has granted a waiver for

the requirement.

BACKGROUND AND NEED FOR LEGISLATION

Appliance efficiency has been a subject of national interest since

at least the initial energy price jolts of the early 1970's. In 1975,

Congress passed the Energy Policy and Conservation Act (EPCA),

which required the U.S. Department of Energy (DOE) to mandate

energy labeling of appliances and to prescribe voluntary, industrywide appliance efficiency improvements. In addition, ECPA authorI

27

jzed, but did not require, DOE to set mandatory efficiency standards if the labeling and voluntary approaches proved ineffective.

In 1978, Congress enacted the National Energy Conservation

policy Act (NECPA), 42 U.S.C. 6291 et seq. NECPA, among other

things, amended EPCA to require DOE to promulgate expeditiously

mandatory Federal efficiency standards for 13 covered products (refrigerators,

freezers, water heaters, room air conditioners, central

air conditioners, furnaces, dishwashers, clothes washers, clothes

dryers, home heating equipment, kitchen ranges/ovens, television

sets, and humidifiers/dehumidifers). DOE proceeded with the rulemaking and, on June 30 , 1980, issued proposed standards for 8 of

the 13 covered appliances.

In 1982 and 1983, DOE embarked upon a new rulemaking procedure. In December 1982 and August 1983, DOE issued final "nostandard" standards for most of the covered appliances. These

standards constituted DOE's determination that, applying the statutory criteria of "technological feasibility" and "economic justification," the most appropriate Federal appliance standards were no

standards at all.

The "no-standard"

standards resulted in litigation . The Natural

Resources Defense Council ,

joined by Congressman Richard Ottinger and the States of California, Minnesota and New York, sued

DOE to overturn the standards as a wholesale misapplication of

the Congressional directive to promulgate Federal standards. On

July 16, 1985 , the D.C. Circuit Court of Appeals struck the "nostandard"

standards and directed the Department to initiate a new

rulemaking procedure in accordance with the statutory intent.

NRDC v. Herrington, 768 F.2d 1355 (D.C. Cir. 1985). That rulemaking is still in progress.

While Congress was enacting the first Federal appliance standards legislation in the 1970s,

some states begin enacting their own

appliance standards legislation . First California, and later New

York, Wisconsin, Minnesota and Oregon, passed legislation or promulgated regulations establishing standards for appliances covered

under Federal law. Although NECPA provides that Federal appliance standards preempt state standards, the law also allows DOE

to grant waivers to states able to demonstrate a "significant State

or local interest " justifying the State's standards in lieu of the Federal standard.

At the same time that DOE promulgated the "no-standard"

standards it began a practice of granting waiver petitions filed by

the states. As a result, the major activity in appliance standards

over the past decade has been at the state level . At present, more

than a half-dozen states have appliance standards legislation of one

kind or another on the books, and another ten states are moving in

that direction. In addition, many States and localities regulate the

efficiency of certain products by adopting requirements in their

building codes, which govern overall energy consumption in new

buildings.

In December 19855, DOE and the Solicitor General's Office decided not to appeal the Court's decision in NRDC v. Herrington. Appliance manufacturers, accordingly, were confronted with the absence

 EE-RM-PET-100 COMMENT 97
28

of Federal appliance standards for the immediate fj:ture, and

growing plethora of differing state regulations, complicating industry's long-term planning. Environmental groups, for their part

were put to the task of fighting a series of legislative battles at the,

state level, with litigation ensuing in some cases. In early 1986, the

major appliance manufacturer associations and the Natural Resources Defense Council began a negotiation to resolve their long

standing differences in the area of appliance standards. That nego.

tiation continued for close to six months and resulted in a compre,

hensive agreement which is the foundation of the National Appli,

ance Energy conservation Act.

A version of the appliance standards bill substantially identical

to H.R. 87 passed both Houses of Congress by unanimous consent

in the last days of the 99th Congress. The bill was pocket vetoed by

President Reagan on November 1, 1986. The President's vote message stated that "[t]he bill intrudes unduly on the free market,

limits the freedom of choice available to consumers who would be

denied the opportunity to purchase lower-cost appliances, and con.

stitutes a substantial intrusion into traditional State responsibilities and prerogatives."

Need For and Benefits of Legislation

As indicated, H.R. 87 represents a breakthrough in a decade-long

battle between appliance manufacturers and environmental groups

on the subject of appliance standards.

For manufacturers, H.R. 87 establishes explicit and uniform

standards in the near term, and a detailed schedule for future

standards in the long term. These provisions bring a degree of regulatory and certainty to the business planning of the appliance

manfuacturing industry, which has had to grapple in recent years

with a growing number of differing State appliance laws and regulations.

For environmentalists, H.R. 87 realizes a long-term objective of a

rigorous, uniform standard effective in all 70 States. it also represents the close of a long era of costly, piecemeal battles in State

legislatures and administrative rulemaking procedures to establish

State and local appliance standards.

According to estimates prepared by the American Council for an

Energy Efficient Economy (ACEEE), appliance standards will

result in substantial energy cost savings to consumers and businesses. This legislation is designed to achieve these goals by establishing initial energy conservation standards for eleven major

home appliances. These appliances account for approximately 24

percent of electricity consumption in the United States. In addition, this legislation requires DOE periodically to review the standards according to the schedule and criteria set forth in the new Act

to determine whether to make the standards more stringent.

Table I, which was prepared by NRDC, compares the initial

standards set forth in the Act with the most stringent existing or

proposed State standards and with typical products currently on

the market. The table also calculates the percentage difference in

energy consumption of appliances meeting the initial standards set

forth in the Act compared to typical current products.

29

Table IT, also prepared by NRDC, shows the percentage of curdo not m ,et the initial standards set. forth in the

ant -models that °°

Act. Table III sets forth forecasts prepared by anEE. These forecasts

absence of project future energy consumption by app

stando with the

subtract from these values projected energy consume

TABLE 1 .-

NATIONAL APPLIANCE ENERGY CONSERVATION ACT OF STANDARDS

Appliance type

1984 average

efficiency Act efficiency Resulting efficiency state efficiency Percent

Refrigerators ........................ 1140 kWh/yr 976 kWh/yr 903 kWh/yr 1023 kWh/yr (CA'87)

722 kWh/yr (CA'92)

21

Freezers ............................... 799 kWh/yr 671 kWh/yr 621 kWh/yr 737/yr (CA'87)

511 kWh/yr (CA'92)

22

Room air conditioners .......... 7.5 EER 8.6 EER 9.3 EER 8.4 EER (C09)

845 EER (NY'88-prop.)

8 7 EER iNY'92 prop )

19

Central air conditioners........ 8.8 SEER 10.0 SEER 10.3 SEER 9.5 SEER (NY'85)

9.9 SEER (CA'93)

i%

Water heaters: S RAE CA) 13

484 Ef .544 EF 554 EF .524 EF (A H / Gas.. ........................... .

ic 807 EF l t

.884 EF .894 EF .864 EF (ASHRAE/CA)

'

10

ec ._ ..................... E r

Furnaces ..................... 70% AFUE 78% AFUE 84% AFUE 71% AFUE (CA 78) 20%

Percent change 1984 efficiency no . resulting efficiency.

Revised September 12, 1986.

TABLE 2.-Redesign requirements of appliance standards in the National Appliance

Energy Conservation Act

Appliance and product category

Refrigerators' (includes models with through-the-door ice):2

Top-freezer, auto defrost 2 ..............................................................................

Side-freezer, auto defrost 2 ...........

....................... Manual defrost .................................... _.._..... ........ ......... .

Freezers:' Chest .............. ..................................................................................... .......

Upright manual .................................................. .............................................

Room air conditioners:3

No reverse cycle-with side louvers:

Less than 6,000 Btu/ hr ..................................................................................

6,000 to 7,999 Btu/hr ......................................................................................

8,000 to 13,999 Btu/hr ....................................................................................

14,000 to 19,999 Btu/hr ..................... ........................................

20,000 Btu/hr and over ..................................................................................

Reverse cycle-with side louvers .........................................................................

No reserve cycle-without side louvers:

Less than 6,000 Btu/hr .............................................

6,000 to 7,999 Btu/hr ...................

Percent

Redesign

89

92

42

33

87

8,000 to 13,999 Btu/hr .............................. ................................................ ......

14,000 to 19 ,999 Btu/hr ..................................................................................

20,000 Btu /hr and over ..................................................................................

..........................................

Reverse cycle-without side louvers .............. ...........

Central air conditioners:4

Split system ...................... ............................................................

.............................. Package system ...............................................................

 EE-RM-PET-100 COMMENT 97
30

.4ppliu 9,' and p,od;tct Care:;^n /'ercear

Furnaces: 6 Rede,,+g?A

Oil boiler

............................................................................................................

Oil furnace ......................................................................

.................................. Gas boiler .....

..................... Gas furnace ...........................................................................

............................

' NRDC sort of AHAM 1986 Directory of Certified Refrigerators and Freezers June, 1986. , Edition No 2

'No models offered.

'NRDC sort of AHAM 1986 Consumer Selection Guide For Room Air Conditioners er version of this table contained . The earli. an error which omitted the redesign percentages for air condi- tioners over 20,000 BTU/hr and substituted the percent redesign for the Reverse Louvers category, which in turn Cycle with Side was left blank. Other small variations in the redesign numbers reflect differences with the AHAM sort which includes Special Application Models and other unique classes which were not considered in the original NRDC sort.

mission to Massachusetts Executive

°ARI 3rd Quarter 1985 Efficiency Statistics of Nationally-shipped units Figure 4 of ARI S. Office of Energy Resources, March,1986. 'These figures refer to shipments, not models.

1986, done

6Sort of GAINIA Consumers' Directory of Certified Furnace and Boiler Efficiency Ratings, May

differ from

by Glenn Reed, Massachusetts Executive Office of Energy Resources. These numbers the previous version of this table because they were based on an AFUE of 78% ac- cording to GAMA's indoor air/indoor furnace test. Since the bill specifies 7817, r1FUE using outdoor air, the rule-of-thumb adjustment to the indoor test is 2% AFUE upward. Thus the sort is

computed at the 80% AFUE levei in this version, not the 78% AFUE level. Revised September 12, 1986.

TABLE 3.-FORECAST OF FUTURE ENERGY CONSUMPTION OF APPLIANCES

Electricity savings by 2000 Energy savings by 2000 Cost savings by

Product 2000

Annual ( Twh/yr) Lifetime (Twh) Peak MW Annual (Tblu/

yr)

Lifetime

(quads) Net lifetime

$Xla'

Refrigerators ................................

F

13.86 263 1, 851 159.39 3.02 $5 696 reezers .......................................

El t i

2.59 54 340 29.79 0.62

,

1 358 ec r c water heaters ..................

R i

20.87 271 2,573 240.01 3.12

,

oom a 8 798 r conditioners ..................

C

4.59 69 4,890 52.79 0.79

,

854 entral air conditioners ................ 11.62 139 12 ,385 133 .63 Furnaces ............................................................................. 121.78 ....................................... G

1.60

2.80

829

3 010 as water heaters ...................................................................................................... 190.19 4 37

,

6 280 ,as ranges .................................................................

. .... ......... 31.83

.

0.73

,

1 325

Total.._.......__.____.. 53.5; 796 22,039 959.40 1705

,

28,150

' Net lifetme. dollar; 10

Source. American Council for an Energy Efficient Economy , "Energy and Economic Savings Potential From National Appliance Efficiency Standards" (August 1986).

These calculations forecast energy savings up to the year 2000,

and assume that DOE maintains the Federal standards at the initial levels set forth in the bill. ACEEE estimates a reduction in

energy consumption of 17 quads by the year 2000 by virtue of the

standards in H.R. 87. Based on their assumptions, peak demand for

electrical capacity would be reduced by 22,000 megawatts. Based on

the same assumptions, ACEEE estimates that the present value of

cost savings to consumers, based on national average utility rates,

would be $28 billion.

Although not all members of the environmentalist-industry coalition agree with these projected energy and cost savings, all do

agree that the standards will enhance the certainty and reliability

of future energy demand projections. Specifically, these standards

would end an era of confusion and uncertainty. The issue of standards has remained unsettled for many years; in the absence of this

legislation, this situation could continue for the indefinite future.

The D.C. Circuit's decision in NRDC V. Herrington requires DOE to

conduct a new rulemaking proceeding for appliance standards. This

5?

58

79

31

proceeding will continue for a substantial time, and its outcome is

uncertain. Litigation over DOE's determination would cause further delay and uncertainty . Such delay and uncertainty does not

serve the public interest,

including the interests of energy conservation and of rational planning by utilities, businesses , and other

public and private entities. In the meantime, the States may be expected to fill the void-leading to a patchwork of unpredictable and

inconsistent requirements. For these reasons, H.R. 87 is an important step in the Congressional initiative on appliance standards

that began in 1975.

HEARINGS

No legislative hearings were held in the 100th Congress. In the

99th Congress, the Subcommittee on Energy Conservation and

power held one day of hearings on the National Appliance Energy

Conservation Act on September 10, 1986. Testimony was received

from 6 witnesses, representing 6 organizations, with additional material submitted by numerous other individuals and organizations.

The witnesses testifying at the hearing were: Peter A. A. Berle,

President and C.E.O., National Audubon Society; Charles A. Dowd,

President, Admiral, A Division of Maytag Company, representing

the Association of Home Appliance Manufacturers; David Goldstein, Senior Staff Scientist, Natural Resources Defense Council;

Robert J. Bauer, President and C.E.O., Empire Comfort Systems,

Inc., representing the Gas Appliance Manufacturers Association;

Howard Geller, Associate Director, American Council For An

Energy-Efficient Economy; and John W. Norris, Jr., President and

C.E.O., Lennox Industries, Inc., representing the AirConditioning

and Refrigeration Institute.

COMMITTEE CONSIDERATION

On February 24, 1987, the Subcommittee on Energy and Dower

,met in open session and ordered reported the bill H.R. 87, as

amended, by voice vote, a quorum being present. On February 26,

1987, the Committee met in open session and ordered reported the

bill H.R. 87 with amendments by voice vote, a quorum being

present.

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 2(1)(3)(A) of Rule XI of the Rules of the House

of Representatives, no oversight findings or recommendations have

been made by the Committee.

COMMITTEE ON GOVERNMENT OPERATIONS

Pursuant to clause 2(l)(3)(D) of rule XI of the Rules of the House

of Representatives, no oversight findings have been submitted to

the Committee by the Committee on Government Operations.

COMIMITTEE COST ESTIMATE

In compliance with clause 7(a) of rule XIII of the Rules of the

House of Representatives, the Committee believes that the bill will

have no significant impact on spending for fiscal years 1988

through 1992.

 EE-RM-PET-100 COMMENT 97
32

CONGRESSIONAL BUDGET OFFICE ESTIMAT

Hon. JOHN D. DINGELL

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, February 26, 1987.

Chairman, Committee on Energy and Commerce, House of Repre.

sentatives, Rayburn House Office Building, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R. 87, the National Appliance Energy Conservation Act

of 1987, as ordered reported by the House Committee on Energy

and Commerce, February 26, 1987.

H.R. 87 establishes energy conservation standards for categories

of covered appliances. It provides a schedule for the Secretary of

Energy to evaluate these standards to ensure that the maximum

energy efficiency that is technologically feasible and economically

justified is being achieved. This bill also provides for the preemption of state energy conservation appliance standards after the federal standards are in effect.

CBO estimates that H.R. 87 will have no significant impact on

government spending for fiscal years 1988 through 1992. The Department of Energy currently plans to conduct technical and economic valuations of appliances on essentially the same schedule described in H.R. 87.

Enactment of this bill would not directly affect the budgets of

state or local governments.

On January 29, 1987, the Congressional Budget Office prepared a

cost estimate for S. 83, a similar bill ordered reported by the Senate

Committee on Energy and Natural Resources. The estimated

budget impact of those two bills is the same.

If you wish further details on this estimate, we will be pleased to

provide them.

With best wishes,

Sincerely,

RUDOLPH G. PENNER,

Director.

INFLATIONARY IMPACT STATEMENT

Pursuant to cause 2(1)(4) of rule XI of the Rules of the House of

Representatives, the Committee makes the following statement

with regard to the inflationary impact of the reported bill: The legislation is not expected to have any inflationary impact.

SECTION-BY-SECTION ANALYSIS

Section 1 entitles the "National Appliance Energy Conservation

Act" (the "Act").

Section 2 (Definitions) amends Section 321(a) of the Energy Policy

and Conservation Act ("EPCA") by adding definitions which are required to implement the specific standards provisions and other

provisions added to EPCA by the Act. Section 2(a) defines "energy

conservation standard" to include the standards set forth in the

Act and future standards that the Secretary of the Department of

33

i ate. Section 2(b)

Energy l"61a- SeCr:;tarj%" or "DOE") may pr^.^^ ulg"

defines the technical terms that are used in the standards.

Section 3 (Coverage) amends Section 322(a) of EPCA, listing the

products that are covered

refrigerator-freezers; bfreezes; rooms air conditioners;central

air conditioners and ,central air conditioning heat pumps; water

heaters; pool heaters; direct heating equipment; furnaces; dishwashers; clothes washers; clothes dryers; and kitchen ranges and

ovens. Other consumer products may be regulated by the Secretary

under existing Section 322(b) of EPCA. Consumer products designed solely for use in recreational vehicles and other mobile

equipment are not covered by the Act.

Section 4 (Test Procedures) Section 323 of EPCA is amended so as

to conform with the establishment of specific standard levels in the

Act. New Section 323(a) states that all test procedures and related

determinations prescribed or made by the Secretary with respect to

any covered product which are in effect on the date of enactment

of the Act remain in effect unless and until the Secretary amends

the test procedures or related determinations.

New Section 323(b) authorizes the Secretary, in cooperation with

the National Bureau of Standards, to amend existing test procedures, or to prescribe new test procedures for any covered product

for which there are no test procedures. If the Secretary determines

that a test procedure should be prescribed or amended, he shall

promptly publish in the Federal Register proposed test procedures

and afford interested parties an opportunity for comment. The Act

extends the comment period to a minimum of 60 days (compared to

45 days under current law), and allows the Secretary to extend this

comment period to up to 270 days for good cause shown.

New Section 323(c) states that until the Secretary has amended a

test procedure applicable to a covered product, the existing proscriptions in EPCA-that no manufacturer, distributor, retailer or

private labeler may make a representation respecting the energy

use or efficiency of such product or the cost of energy consumed by

such product unless the product has been tested in accordance with

the test procedures-remain in effect.

New Section 323(d) restates existing law regarding cases in which

test procedures are not required.

New Section 323(e) addresses the effect of amendment of a test

procedure on a Federal appliance standard. The Secretary must, deterinine in the rulemaking for the amended test procedure whether and to what extent the proposed test procedure would alter the

measured energy efficiency or measured energy use of the covered

products. If the amended test procedure will have such an effect,

then the applicable standard levels must be ammended during the

same rulemaking. In determining the amended standard level, the

Secretary shall measure, pursuant to the amended test procedure,

the energy efficiency or energy use of a representative sample of

covered products that minimally comply with the existing standard

level. The average of such energy efficiency or use levels under the

amended test procedure will constitute the amended standard

level. All existing models that comply with the existing standard

and all revised models that have the same energy efficiency or

energy use characteristics as such existing models shall be deemed

 EE-RM-PET-100 COMMENT 97
i

34

modify the T to comply with the amended standard.

Secretary' his provision does not

s duty to issue final rules relating to amended standards levels as described in new Section 325.

The purpose of this provision is to assure that amendment of test procedure,

which ay occur at any time, will neither strength- en nor weaken the energy

amended only at certain secconservation Stan

in

ified times. The h ma be provision lis nee ed in those cases where the measured energy efficiency or measured use

of a product changes as the result of a revised test procedure The

Section also ensures that any products that comply with an energy

conservation standard under an existing test procedure will still be

deemed to comply with that standard even if an amended test procedure affects the measured energy efficiency or measured use of

the product changes as the result of a revised test procedure. Section 5 (

Energy Conservation Standards). This section signifi- cantly amends existing Section 325

specific initial of EPCA by establishing the energy conservation standards for the

covered prod- ucts, and by requiring

ules and revised criteria.future rulemakings under mandatory schedEach subsection sets forth deadlines for two mandatory DOE re- visions of each standard. Under each subsection, DOE must issue, by specified dates, proposed and final rules relating to amendments of the standards. Thereafter, DOE's duty to issue rules determining whether to amend the standards is discretionary. Subsequent rulmakings may also be initiated by petition. e

For each standard, a minimum duration

between the effective date of a standard and the earliest possible

effective date of a revision of that standard) is rescribed

period

each initial and revised standard .

lead times (i.e., Manufacturers are also gi en specified

standard by DOE and the time between final publication of a revised

within which the effective date of the revised standard) to redesign their products ards. This minimum lead a t, thto comply with new standending ree y fi on the products. ears orve years,

New Section 325(a)

F states that this Section provides for specific

ederal energy conservation standards to be administered by DOE.

The Secretary is also authorized to

servation standards for each typ

e O

f am

covered

ended produc

t

con

which there is a legislated standard cla for

ss

the Secr

etary may romulgate new standards for other consumer productsmay pro- New Section 325(b)

erators, refrigerator contains the initial standard levels for refrig-

-

freezers and freezers. This standard applies all products manufactured on or after January 1 to

, standards do not apply to refrigerator 1990. The initial

ed -freezers with ttl oa refrigerat volume exceeding 39 cubic feet or freezers with total refrigerat- ed volume exceeding 30 cubic feet.

Section 325(b)(3)(A)(i) also provides a specific date (July 1, 1988)

by. which a proposed rule regardin

e r

il

r

s must bblihsh

e iu e pused and state tatafi nal

rlesshall

betpud fished no later than July 1

,

1989. If a final rule is not published by

January I, 1990, then any amendment of the standards shall not

apply to products manufactured before January 1, 1995. Section 325(

refrigerator b)(3xA)(ii) relates to California Energy Commission -

freezer standards. These State standards are to take

35

effect in 1992 under California law. If DOE fails to issue a final

rule by January 1, 1990 relating to revision of the existing Federal

standards, then the California 1992 standards go into effect in California on January 1, 1993. If DOE fails to issue a final rule by January 1, 1992 relating to revision of the existing Federal standards,

then any State regulations which apply to products manufactured

on or after January 1 , 1995 apply in those States until a subsequent Federal refrigerator-freezer rule is put into effect.

New Sections 325(c) through 325(h) contain the initial standard

levels and applicable dates for, respectively: room air conditioners

(Section 325(c)); central air conditioners and central air conditioning heat pumps (Section 325(d)); water heaters, pool heaters, and

direct heating equipment (Section 325)(e)); furnaces (Section 325(f));

dishwashers, clothes washers and clothes dryers (Section 325(8));

and kitchen ranges and ovens (Section 325(h)).

The Committee modified the language of the bill amending Section 325(f)(1)(B) of EPCA to include an additional clause (iii). The

purpose of the new clause is to clarify that, in setting an energy

conservation standard for small gas furnaces (those having an

input of less than 45,000 Btu's per hour), the Secretary of Energy

shall, in a manner which is otherwise consistent with the Act, establish the standard at a level between 71 percent and 78 percent

AFUE "which the Secretary determines is not likely to result in a

significant shift from gas heating to electric resistance heating

with respect to either residential construction or furnace replacement." The phrase "electric resistance heating" does not include

"heat pump" as defined in section 2(b)(24), and does not include

supplemental backup electric resistance heating included in many

heat pump configurations. The phrase "gas heating" means "natural gas heating."

Nationwide , the use of electric resistance heating in single family

olv ellings has declined over the last ten years. Over this same time

period, the use of gas furnaces and electric heat pumps has increased. The most recent DOE data show that in areas of the country where natural gas is available , 88 percent of all housing units

are heated by natural gas. (Natural gas is available in all parts of

the country except some rural areas.) As the technology and efficiency of heat pumps have improved, their use has also increased,

but clearly the great majority of homes throughout the country

rely on natural gas heat. Section 325(f)(1)(B)(iii) should be implemented in a manner that recognizes that the selection of climate

control equipment for new homes and for replacements in existing

homes is a marketplace decision . The Secretary , in establishing the

small gas furnace standard , must take into account the criteria set

forth in Section 325(1).

New Section 325(i), which essentially restates existing law, allows

the Secretary, in his discretion, to promulgate standards for additional products, and specifies that a ive-year lead time is required

between the publication of a final rule and the effective date of the

standards.

New Section 325(j) requires the Secretary to undergo two subsequent rulemakings, at specified times, to determine whether the

extant standard for a covered product should be amended. ThPrPaf-

 EE-RM-PET-100 COMMENT 97
36

ter, rulemakings to determine whether to amend a standard are discretionary.

New Section 325(k) provides that the discretionary rulemakings

described in Section 325(j) may be initiated pursuant to a properly

stated petition. The Secretary is required to grant a petition to initiate a rulemaking where the petition contains evidence which, assuming no other evidence were considered, provides an adequate

basis for amending the standards under the following criteria: (1)

amended standards would result in significant conservation of

energy; (2) amended standards are technologically feasible; and (3) amended standards are cost effective. Section 9 of H.R. 87, see below, permits the petitioner to appeal the denial of a petition in

Federal District Court.

New Section 325(1) establishes the criteria under which the Secretary may prescribe new or amended standards . The Secretary

may not increase the maximum allowable energy use or decrease

the minimum required energy efficiency of a covered product under the standards prescribed in the Act or subsequently adopted,

although the Secretary may determine that the standards should

remain the same.

This Section retains the requirement of existing law that energy

conservation standards, including new or amended standards, shall

be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is "technologically feasible"

and "economically justified." This Section also essentially restates

the requirements of existing law regarding the Secretary 's evaluation of the technological feasibility and economic justification criteria. In addition, the Section creates a statutory presumption that a

new or amended standard level is economically justified if the Secretary finds that the additional first cost to the consumer of purchasing a product complying with a given standard level will be

less than three times the energy savings during the first year that

the consumer will receive as a result of the standard. Although

this presumption is rebuttable, it provides specific guidance to DOE that standard, levels with a simple payback period of three years or

less are presumptively economically justified . However, a determination that this criterion is not met shall not be taken into consideration in the Secretary's determination of whether a standard is

economically justified . The Secretary shall consider, among other

things, the statutory factor set forth in existing law requiring analysis of life-cycle costs.

New Section 325 also provides that the Secretary may not prom u]gate a new or amended standard if he finds that interested persons have established by a preponderance of the evidence that the

standard is likely to result in the unavailability in the United

States in any covered product type or class of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available

in the United States at the time of the Secretary 's finding. The fail- ure of some classes or types to meet this criterion at a given standard level shall not affect the Secretary's authority to promulgate a

standard for such classes or types at a level that does meet the criterion. Similarly, the failure of some classes or types to meet this

requirement shall not affect the Secretary 's authority to prescribe

37

a standard for other classes or types. This requirement is designed

to ensure that manufacturers will not have to eliminate various

er

peNew subsection 325(m) contains

ordto meet standards.

procedures for prescribing

new or amended standards. This section increases to 60 days

(versus 45 days in current law) the public comment period on an

advance notice of proposed rulemaking and on proposed rules. It

also provides that an amended or new rule shall be published as

soon as practicable after the close of the comment period but not

less than 90 days after the publication of the proposed rule in the

Federal Register. In all other respects, this subsection essentially

retains the requirements of current law.

Subsections (n), (o) and (q) are essentially identical to subsections

(f), (j) and (e), respectively, of current law.

Subsection (p) states that compliance with the performance

standards either set forth in or required by the Act shall be determined using the test procedures and compliance criteria of Section

323.

Section 6 (Requirements of Manufacturers) Section 326(d) of

EPCA is amended to add a requirement that in administering the

Act the Secretary shall give due consideration to existing public

sources of information including, but not limited to, nationally-recognized certification programs of trade associations. The Secretary

is also required to exercise his authority in such a manner as to

minimize unnecessary burdens on manufacturers of covered products. This language has been added in order to minimize to the

extent possible the reporting and testing requirements of the standards program.

Section 7 (Effect on Other Law) Section 327 of EPCA is amended

significantly to create new preemption provisions, including criteria under which States can receive waivers from preemption.

Section 327(a), which restates existing law, provides that the Act

supersedes State regulations which provide for the disclosure of in.-

respect to any measure of energy consumption of

any covered product if: (1) the State regulation requires testing or

use of any measure of energy consumption or any energy descriptor in any manner other than that prescribed under the Act's test

procedures; or (2) such State regulation requires disclosure of information with respect to the energy use or efficiency of any covered

product other than information prescribed under the labeling provisions of EPCA.

New Section 327(b) relates to the period between the date of enactment of the Act and the effective dates of each Federal energy

conservation standard. This section states as a general principle

that no State appliance efficiency regulations or requirements shall

be applicable unless such regulations or requirements are prescribed or enacted before January 8, 1987 and are applicable to

products before January 3, 1988. The section also lists other exceptions to preemption.

New Section 327(c) states that on the effective date for each Federal energy conservation standard, that standard supersedes any

State regulation, as provided under current EPCA. This supersession codes in new

Section 327(f), th

to the special provisions for

e special provision for the California 1992 refriger-

 EE-RM-PET-100 COMMENT 97
38

ator-freezer standard any .

upon State petition, or other specified excep tion ^' granted by DOE New Section 327(d) allows States to file peti seeking of of Federal preemption tions

. This subsection provides new and

tailed criteria that a State must establish by a preponderance

ce of the evidence in order to receive an exemption. The State ois -

quired to show that its regulation is needed to meet "unusual a lidreState or local interests, which are defined as interests substantially different in nature or Ina hd

ing in the United States finitude from those prevailmust be such that the costts,nbenlefits, burdens andhreliabi ty of

energy savings resulting from the State regulation make it

ble or necessary when measured against the costs benefits dens and reliability of alternative approach Prefera_

production, including reliance on reasonabl y pr s pr eve

edictab

r kerinduced

market- induced improvements in efficiency of all products suble art

s, ct to State's State regulation. These factors are to be evaluated as part of the energy

plan and forecast. This subsection required the State r the

to show that it has determined through a rational Planning Process

natives. g Process that State regulations are preferable when compared to other alterNew subsection (d) also provides that even if the State has made

a showing of an unusual and compelling interest, the Secretary

may not grant the requested waiver if interested persons have established by a prepdonerance of the evidence that such State regu. lation will significantly burden marketing,

evaluating this factor, the Secretary manufacturing, distri- bution, sale or servicing of affected products on a national basis. In distriwhich the State regulation will increaseamanuf

manufacturing and td stri. bution costs; the extent to which the State regulation will disadvantage smaller manufacturers, distributors or dealers or lessen competition in the State; the extent to whi would cause a bur au den on

ch

e gu

the State re 1 Manufacturers - itic to

the

e,l prCd^w , S , taking r r d 5Is n and produce

e

rodels whicIw ould

the reduthe In ction

cresult from the r Or pro- egulation;

oCi rrent

extent to which the State regulation is likely to contribute signif and the

cantly to a proliferation of State appliance efficiency requirements. These specific factors are New Section 327(d non-exclusive. ) also prohibits the. Secretary from granting a State waiver petition if interested persons establish by

of the evidence that the State regulation is likely to result in the unavailability in the State of any covered Y a type of

class of performance characteristics (includin t sizes ca aciti li i

f

, p

es and volume reg abil y), features s that are substantially the same ° those generally available in the State at the time Y)' ,

finding. This subsection also sets forth the procedure underewhi s the Secretary shall give notice of any

sons a reasonable o Y petition filed and afford perNew substi pportunity to comment ec 3 . on

graved an 27(d) further provides that any State regulation exemption shall apply to Products

manufacree years after the rule granting such exemption tured th

cretary

ree

five yea published in the R

if he finds that additional time is

lengthen the time to

s necessary due to the

39

SubStant a_ burdens of retooling, redesign or distribution needed to

comply with the State regulation.

In general, no State regulation, except as specified in subsection

(b) may go into effect prior to the earliest possible effective date

established by the Act for a revision of the energy conservation

standards. However, a State may implement its regulation before

that date if it can show by a preponderance of the evidence that an

"energy emergency condition" exists within the State which innperj s the health, safety and welfare of its residents because of the inability of the State or utilities within the State to provide adequate

quantities of energy to its residents at less than prohibitive costs.

The State must also show that this emergency cannot be alleviated

substantially by the importation of energy or the use of interconnection agreements, and that the regulation is necessary to alleviate the condition.

This Section further provides that any interested person may file

a petition requesting supersession of a State regulation which has

been granted a waiver from preemption, but only if a Federal

energy conservation standard for the same product has been

amended since the waiver was granted. The burden of proof for superseding the State rule is on the petitioner.

Section 327(e) provides that State procurement standards more

stringent than the Federal energy conservation standards are not

superseded. This provision is substantially the same as Section

327(c) of current law.

New Section 327(f) describes Federal preemption with regard to

energy efficiency or energy use requirements regarding covered

products contained in State and local building codes. State and

local building codes governing new construction typically regulate

the energy efficiency of central heating and cooling equipment and

water heaters. This section states that energy efficiency or use requirements contained in a State or local building code enacted or

prescribed on or before January 8, 1987 are not preempted until

the effective date of the Federal energy conservation standard.

Such requirements adopted after January 8, 1987 are not preempted if they do not require the energy efficiency of a covered product

to exceed the standard set forth in a "national voluntary consensus

standard" or in an applicable State standard, whichever is higher.

National voluntary consensus standards include those adopted by

the Association of Air Conditioning, Heating and Refrigeration Engineers (ASHRAE), which sets energy efficiency standards using

procedures sanctioned by the American National Standards Institute. ASHRAE standards are adopted by most State and local

building codes.

Section 327(f) also describes the preemption applicable after the

effective date of the initial Federal standard for a covered product.

This section prohibits a State from expressly prescribing an efficiency standard for a covered product that exceeds the Federal

standard, unless the State has obtained a waiver from preemption,

but allows States flexibility to implement performance-based building code approaches. Such approaches authorize builders to adjust

or trade off the efficiencies of the various building components so

long as an energy goal is met. Section 327(f)(3) sets forth limited

restrictions designed to ensure that performance-based building

 EE-RM-PET-100 COMMENT 97
40

codes cannot effectively require the installation of covered products

whose efficiencies exceed either the applicable Federal standards or

State standards for which a waiver from preemption has been obtained. Finally, the Section states that a State or local government

is not required to submit a petition to the Secretary in order to enforce or apply its building code, unless the building code requires

the installation of covered products with efficiencies exceeding both

the applicable Federal standard and any applicable State standard

that has been granted a waiver from preemption.

Section 8 (Citizen Suits) Section 335(a) of EPCA is amended by

adding a Federal cause of action against the Secretary for failing to

comply with the schedule in new Section 325 of EPCA. The courts

are required to advance any such cases on the docket and to expe.

dite the disposition of such cases. Jurisdiction is provided for the

court to order appropriate relief, including relief that ensures the

Secretary's compliance with future deadlines.

Section .9 (Administrative Review and Judicial Review) Section

336 of EPCA remains essentially the same except for technical

amendments. In addition, new subsection (c) states that jurisdiction

is vested in Federal district courts over actions brought by any adversely affected person to determine whether a State or local government is complying with Section 327 of this Act and over actions

brought by any person who files a petition under new Section

325(k) which is denied by the Secretary. This subsection, among

other things, allows persons to seek- declaratory judgments that

State building codes do not comply with the criteria set forth in the

Act. The provision is necessary because the Act does not require

States to petition DOE to show that their building codes comply

with Section 327(f).

Section 10 (Annual Report) Section 338 of EPCA is amended by

adding at the end a statement that nothing in the Section provides

a defense or justification for a failure by the Secretary to comply

with a nordiscretionary duty.

CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED

In compliance with clause 3 of Rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic,

existing law in which no change is proposed is shown in roman):

ENERGY POLICY AND CONSERVATION ACT

TITLE III-IMPROVING ENERGY EFFICIENCY

PART B-ENERGY CONSERVATION PROGRAM FOR CONSUMER

PRODUCTS OTHER TITAN AUTOMOBILES

DEFINITIONS

SEC. 321. (a) For purposes of this part:

{

41

t K h K

l1)

* * * * * * *

[(6) The term "energy efficiency standard" means a performance standard-

[(A) which prescribes a minimum level of energy efficiency for a covered product, determined in accordance

with test procedures prescribed under section 323, and

[(B) which includes any other requirements which the

Secretary may prescribe under section 325(c).]

(6) The term "energy conservation standard " means-

(A) a performance standard which prescribes a minimum level of energy efficiency or a maximum quantity of

energy use for a covered product, determined in accordance with test procedures prescribed under section 323; or

(B) a design requirement for the products specified in

paragraphs (6), (7), (8), (10), and (13 ) of section 322(a); and

includes any other requirements which the Secretary may prescribe under section 325(o).

* * * *

(19) The term "AV" is the adjusted volume for refrigerators,

refrigerator-freezers, and freezers, as defined in the applicable

test procedure prescribed under section 323.

(20) The term "annual fuel utilization efficiency " means the

efficiency descriptor for furnances and boilers, determined

using test procedures prescribed under section 323 and based

on the assumption that all-

(A) weatherized warm air furnaces or boilers are located

out-of-doors;

(B) warm air furnaces which are not weatherized are located indoors and all combustion and ventilation air is admitted through grills or ducts from the outdoors and does

not communicate with air in the conditioned space; and

(C) boilers which are not weatherized are located within

the heated space.

(21) The term "central air conditioner" means a product,

other than a packaged terminal air conditioner , which-

(A) is powered by single phase electric current;

(B) is air-cooled;

(C) is rated below 65,000 Btu per hour;

(D) is not contained within the same cabinet as a furnace the rated capacity of which is above 225 , 000 Btu per

hour; and

(E) is a heat pump or a cooling only unit.

(22) The term "efficiency descriptor" means the ratio of the

useful output to the total energy input, determined using the

test procedures prescribed under section 323 and expressed for

the following products in the following terms:

(A) For furnaces and direct heating equipment, annual

fuel utilization efficiency.

(B) For room air conditioners, energy efficiency ratio.

(C) For central air conditioning and central air conditioning heat pumps, seasonal energy efficiency ratio.

 EE-RM-PET-100 COMMENT 97
42

(D) For wate heaters, energy actor.

(E) For pool heaters, thermal efficiency.

(23) The term "furnace" means a product which utilizes only

single-phase electric current, or single-phase electric current or

DC current in conjunction with natural gas, propane, or home

heating oil, and which-

(A) is designed to be the principal heating source for the

living space of a residence;

(B) is not contained within the same cabinet with a cen_

tral air conditioner whose rated cooling capacity is above

05,000 Btu per hour;

(C) is an electric central furnace, electric boiler, forced-air

central furnace, gravity central furnace, or low pressure

steam or hot water boiler; and

(D) has a heat input rate of less than 300, 000 Btu per

hour for electric boilers and low pressure steam or hot

water boilers and less than 225,000 Btu per hour for forcedair central furnaces, gravity central furnaces, and electric

central furnaces.

(24) The terms "heat pump" or "reverse cycle" mean a product, other than a packaged terminal heat pump, which-

(A) consists of one or more assemblies;

(B) is powered by single phase electric current;

(C) is rated below 05,000 Btu per hour;

(D) utilizes an indoor conditioning coil, compressors, and

refrigerant-to-outdoor-air heat exchanger to provide air

heating; and

(E) may also provide air cooling, dehumidifying, humidifying circulating, and air cleaning.

(25) The term `pool heater" means an appliance designed for

heating nonpotable water contained at atmospheric pressure, including heating water in swimming pools, spas, hot tubs and

similar applications.

(25) The ter„ "thermal efficiency of pool heaters" means a

measure of the heat in the water delivered at the heater outlet

divided by the heat input of the pool heater as measured under

test conditions specified in section 2.8.1 of the American National Standard for Gas Fired Pool Heaters, Z21.56-1985, or as

may be prescribed by the Secretary.

(27) The term "water heater" means a product which utilizes

oil, gas, or electricity to heat potable water for use outside the

heater upon demand, including-

(A) storage type units which heat and store water at a

thermostatically controlled temperature, including gas storage water heaters with an input of 75,000 Btu per hour. or

less, oil storage water heaters with an input of 105,000 Btu

per hour or less, and electric storage water heaters with an

input of 12 kilowatts or less;

(B) instantaneous type units which heat water but contain no more than one gallon of water per 4,000 .Btu per

hour of input, including gas instantaneous water heaters

with an input of 200,000 Btu per hour or less, oil instantaneous water heaters which an input of 210,000 Btu per

43

hour or less, and electric instantaneous water heaters with

an input of 12 kilowatts or less; of

(C) heat pump type units, with a maximum current

rating of 24 amperes at a voltage no greater then 250 volts,

which are products designed to transfer thermal energy

from one temperature level to a higher temperature level for

the purpose of heating water, including all ancillary equipment such as fans, storage tanks, pumps, or controls necessary for the device to perform its function.

(28) The term "weatherized warm air furnace or boiler"

means a furnace or boiler designed for installation outdoors,

approved for resistance to wind, rain, and snow, and supplied

with its own venting system.

[COVERAGE

[E c. 322. (a) A consumer product is a covered product if it is

one of the following types (or is designed to perform a function

which is the principal function of any of the following types):

[(1) Refrigerators and refrigerator-freezers.

[(2) Freezers.

[(3) Dishwashers.

[(4) Clothes dryers.

[(5) Water heaters.

[(6) Room air conditioners.

[(7) Home heating equipment, not including furnaces.

[(8) Television sets.

[(9) Kitchen ranges and ovens.

[(10) Clothes washers.

[(11) Humidifiers and dehumidifiers.

[(12) Central air conditioners.

[(13) Furnaces.

['(14) Any other type of consumer product which the Secretary classifies as a covered product under subsection (b).]

COVERAGE

Sic. 322. (a) IN GENVERAL.-The following consumer products, excluding those consumer products designed solely for use in recreational vehicles and other mobile equipment, are covered products:

(1) Refrigerators, refrigerator-freezers, and freezers which can

be operated by alternating current electricity, excluding-

(A) any type designed to be used without doors; and

(B) any type which does not include a compressor and

condenser unit as an integral part of the cabinet assembly.

(2) Room air conditioners.

(3) Central air conditioners and central air conditioning heat

pumps. (4,) Water heaters.

(5) Furnaces.

(6') Dishwashers.

(7) Clothes washers.

(8) Clothes dryers.

(9) Direct heating equipment.

(10) Kitchen ranges and ovens.

 EE-RM-PET-100 COMMENT 97
44

(11) Pool heaters.

(12) Television sets.

(13) Any other type of consumer product which the Secretary

classifies as a covered product under subsection (b).

[(b)(1)] (b) SPECIAL CLASSIFICATION OF CONSUMER PRODUCT.-(1)

The Administrator may classify a type of consumer product as a

covered product if he determines that-

(A) classifying products of such type as covered products is

necessary or appropriate to carry out the purposes of this Act,

and

(B) average annual per-household energy use by products of

such type is likely to exceed 100 kilowatt-hours (or its Btu

equivalent) per year.

* *

[TEST PROCEDURES

[SEc. 323. (a)(1) The Secretary shall, during the 30-day period

which begins on the data of enactment of this Act, afford interested

persons an opportunity to present written data, views, and arguments with respect to test procedures to be developed for covered

products of each of the types specified in paragraphs (1) through

(13) of section 322(a).

[(2) The Secretary shall direct the National Bureau of Standards

to develop test procedures for the determination of (A) estimated

annual operating costs of covered products of the types specified in

paragraphs (1) through (13) of section 322(a), and (B) at least one

other useful measure of energy consumption of such products

which the Secretary determines is likely to assist consumers in

making purchasing decisions.

[(3) The Secretary shall publish proposed test procedures with

respect to all covered products of each of the types specified in

paragraphs (1) through (13) of section 322(a), and shall afford haterested persons an opportun ity to present oral and written data,

views, and arguments with respect to such proposed test procedu.•es. Such comment period shall not be less than 45 days.

[(4) The Secretary shall prescribe test procedures for the determination of (i) estimated annual operating costs of all covered products of each of the types specified in paragraphs (1) through (13) of

section 322(a), and (ii) at least one other measure of energy consumption of such products which the Secretary determines is likely

to assist consumers in making such purchasing decisions. Except as

provided in paragraph (6), such test procedures shall be prescribed

not later than January 31, 1978.

[(5) If the Secretary has classified a type of product as a covered

product under section 322(b), the Secretary may, after affording interested persons an opportunity to comment, direct the National

Bureau of Standards to develop, and may publish proposed test procedures for such type of covered product (or class thereof). The Secretary shall afford interested persons an opportunity to present

oral and written data, views, and arguments with respect to such

proposed test procedures. Such comment period shall not be less

than 45 days. The Secretary may thereafter prescribe test procedures in accordance with subsection (b) of this section with respect

45

to such type or class o product, if the Secretary or the Commission

determines that-

[(A) the application of subsection (c) to such type of covered

product (or class thereof) will assist consumers in making purchasing decisions, or

[(B) labeling in, accordance with section 324 will assist purchasing in making decisions.

[(6)(A) The Secretary may delay the prescription of test procedures under paragraph (4) for a type of covered product (or class

thereof) if he determines that he cannot, within applicable time

period, prescribe test procedures applicable to such type (or class)

which meet the requirements of subsection (b), and he submits to

the Congress a report of such determination together with the reasons therefor, and also publishes such determination (and reasons)

in the Federal Register. In any such case, he shall prescribe such

test procedures as soon as practicable, but in no event later than 90

days after the date specified in paragraph (4).

[(B) The Secretary is not required to publish and prescribe test

procedures under paragraphs (3) and (4) for a type of covered product (or class thereof) if he determines, by rule that test procedures

cannot be developed which meet the requirements of subsection (b)

and publishes such determination in the Federal Register, together

with the reasons therefor. For purposes of section 327, a determination under this subparagraph with respect to any type (or class) of

covered product, while effective, shall have the same effect as

would a standard prescribed for such type (or class) under section

325.

[(7)(A) In the case ofK(i) any test procedure prescribed under this subsection; or

[(ii) any determination under paragraphs (6) that a test procedure cannot be developed which meets the requirements of

subsection (b);

the Secretary shall, not later than 3 .years after the date of the enactr_ent of this paragraph (and from time to time thereafter), conduct a reevaluation and, on the basis of such reevaluation, shall determine if such test procedure should be amended or such determination should be rescinded. In conducting such reevaluation, the

Secretary shall take into account such information as he deems relevant, including technological developments relating to the energy

efficiency of the type (or class) of covered products involved.

[(B) If the Secretary determines under subparagraph (A) that1(i) a test procedure should be amended, he shall promptly

publish in the Federal Register proposed test procedures incorporating such amendments, or

[(ii) a determination. under paragraph (6) should be rescinded, he shall promptly publish notice thereof in the Federal

Register,

and afford interested persons an opportunity to present oral and

written data, views, and arguments. Such comment period shall not

be less than 45 days.

[(b)(1) Any test procedures prescribed under this section shall be

reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle (as deter-

 EE-RM-PET-100 COMMENT 97
46

mined by the Secre tary), and she.)) not be ndul } rdenso e t

conduct.

o

[(2) If the test procedure is a procedure for determining estimat.

ed annual operating costs, such procedure shall provide that such

costs shall be calculated from measurements of energy use in a rep.

resentative average-use cycle (as determined ,y the Secretary), and

from representative average unit costs of the energy needed to op,

erate such product during such cycle. The Secretary shall provide

information to manufacturers respecting representative average

unit costs of energy.

[(c)(1) Effective 180 days after a test procedure rule applicable to

a covered product is prescribed under this section, no manufactur.

er, distributor, retailer, or private labeler may make any represen.

tation-

[(A) in writing (including a representation on a label), or

[(B) in any broadcast advertisement,

respecting the energy consumption of such product or cost of

energy consumed by such product, unless such product has been

tested in accordance with such test procedure and such representation fairly discloses the results of such testing.

(2) On the petition of any manufacturer , distributor, retailer or

private labeler, filed not later than the 60th day before the expiration of the period involved , the 180-day period referred to in paragraph (1) may be extended by the Commission with respect to the

petitioner (but in no event for more than an additional 180 days) if

he finds that the requirements of paragraph (1) would impose on

such petitioner an undue hardship (as determined by the Commission).]

TEST PROCEDURES

SEC. 323. (a) GENERAL RULE. All test procedures and related determinations prescribed or made by the Secretary with respect to any

covered product (or class thereof) which are in effect on the date of

enactment of the National Appliance Energy Conservation Act of

1987 shall remain in effect until the Secretary amends such test procedures and related determinations under subsection (h).

(b) A-VtENDED AND NEW PROCEDURES.-(1)(A) The Secretary may

amend test procedures with respect to any covered product if the

Secretary determines that amended test procedures would not accurately or fully comply with the requirements of paragraph (3).

(B) The Secretary may, in accordance with the requirements of

this subsection, prescribe test procedures for any consumer product

classified as a covered product under section 322(b).

(C) The Secretary shall direct the National Bureau of Standards

to assist in developing new or amended test procedures.

(2) If the Secretary determines, on his own behalf or in response to

a petition by any interested person, that a test procedure should be

prescribed or amended, the Secretary shall promptly publish in the

Federal Register proposed test procedures and afford interested persons an opportunity to present oral and written data, views, and arguments with respect to such procedures. The comment period shall

not be less than 60 days and may be extended for good cause shown

to not more than 270 days. In prescribing or amending a test proce47

cure, the Secretary shall take into account such information as the

Secretary determines relevant to such procedure, including technological developments relating to energy use or energy efficiency of

the type (or class) of covered products involved.

(3) Any test procedures prescribed or amended under this section

shall be reasonably designed to produce test results which measure

energy efficiency, energy use, or estimated annual operating cost of a

covered product during a repreesentative average use cycle or period

of use, as determined by the Secretary, and shall not be unduly burdensome to conduct.

(4) If the test procedure is a procedure for determining estimated

annual operating costs, such procedure shall provide that such costs

shall be calculated from measurements of energy use in a representative average use cycle or period of use, as determined by the Secretary, and from representative average unit costs of the energy needed

to operate such product during such cycle. The Secretary shall provide information to manufacturers with respect to representative average unit costs of energy.

(c) RESTRICTION ON CERTAIN REPRESENTATIONS.-(1) No manufacturer, distributor, retailer, or private labeler may make any representation-

(A) in writing (including a representation on a label); or

(B) in any broadcast advertisement,

with respect to the energy use or efficiency of a covered product to

which a test procedure is applicable under subsection (a) or the cost

of energy consumed by such product, unless such product has been

tested in accordance with such test procedure and such representation fairly discloses the results of such testing.

(2) Effective 180 days after an amended or new test procedure applicable to a covered product is prescribed under subsection (b), no

manufacturer, distributor, retailer, or private labeler may make any

representation -

(A) in writing (including a representation on a label); or

(B) in any broadcast advertisement,

with respect to the energy use or efficiency of such product or cost of

energy consumed by such product, unless such product has been

tested in accordance with such amended or new test procedures and

such representation fairly discloses the results of such testing.

(3) On the petition of any manufacturer, distributor, retailer, or

private labeler, filed not later than the 60th day before the expiration of the period involved, the 180-day period referred to in paragraph (2) may be extended by the Secretary with respect to the petitioner (but in no event for more than an additional 180 days) if the

Secretary determines that the requirements of paragraph (2) would

impose an undue hardship on such petitioner.

(d) CASE IN WHICH TEST PROCEDURE Is NOT REQUIRED.-(1) The

Secretary is not required to publish and prescribe test procedures for

a covered product (or class thereof) if the Secretary determines, by

rule, that test procedures cannot be developed which meet the requirements of subsection (b)(3) and publishes such determination in

the Federal Register, together with the reasons therefor.

(2) For purposes of section 327, a determination under paragraph

(1) with respect to any covered product or class shall have the same

 EE-RM-PET-100 COMMENT 97
48

effect as would a standard prescribed for a covered product (or

class).

(e) AMENDMENT OF STANDARD.-(I) In the case of any amended

test procedure which is prescribed pursuant to this section, the Sec.

retary shall determine, in the rulemaking carried out with respect to

prescribing such procedure, to what extent, if any, the proposed test

procedure would alter the measured energy efficiency or measured

energy use of any covered product as determined under the existing

test procedure.

(2) If the Secretary determines that the amended test procedure

will alter the measured efficiency or measured use, the Secretary

shall amend the applicable energy conservation standard during the

rulemaking carried out with respect to such test procedure. In deter.

mining the amended energy conservation standard, the Secretary

shall measure, pursuant to the amended test procedure, the energy

efficiency or energy use of a representative sample of covered prod.

ucts that minimally comply with the existing standard. The average

of such energy efficiency or energy use levels determined under the

amended test procedure shall constitute the amended energy conser.

vation standard for the applicable covered products.

(3) Models of covered products in use before the date on which the

amended energy conservation standard becomes effective (or revisions of such models that come into use after such date and have

the same energy efficiency or energy use characteristics) that comply

with the energy conservation standard applicable to such covered

products on the day before such date shall be deemed to comply

with the amended energy conservation standard.

(4) The Secretary's authority to amend energy conservation standards under this subsection shall not affect the Secretary's obligation

to issue final rules as described in section 325.

LABELING

S c. 324. [(a}(1) (a) Lv GENERAL.-(1) The Commission shall prescribe labeling rules under this section applicable to all covered

products of each of the types specified in paragraphs [(1) through

(9)] (2), (4), (6), and (8) through (12) of section 322(a), except to the

extent that, with respect to any such type (or class thereof), the

Commission determines under the second sentence of subsection

(b)(5) that labeling in accordance with their section is not technologically or economically feasible.

(2) The Commission shall prescribe labeling rules under this section applicable to all covered products of each of the types specified

in paragraphs [(10) through (13)] (3), (..5), and (7) of section 322(a),

except to the extent that, with respect to any such type (or class

thereof), the Commission determines under the second sentence of

subsection (b)(5) that labeling in accordance with their section is

not technologically or economically feasible or is not likely to assist

consumers in making purchasing decisions.

(3) The Commission may prescribe a labeling rule under this section applicable to covered products of a type specified in paragraph

[(14)] (13) of section 322(a) (or a class thereof) if49

j(A) the Commission or the Secretary has made a determination with respect to such type (or a class thereof) under section 323(a)(5)(B),]

(A) the Commission or the Secretary has made a determination with respect to such type (or class thereof) that labeling in

accordance with this section will assist purchasers in making

purchasing decisions,

(B) the Secretary has prescribed test procedures under section [323(a)(5)] 323(b)(1)(B) for such type (or class thereof) and

(C) the Commission determines with respect to such type (or

class thereof) that application of labeling rules under this section to such type (or class thereof) is economically and technologically feasible.

[(b)(1) Not later than 30 days after the date on which a proposed

test procedure applicable to a covered product of any of the types

specified in paragraphs (1) through (14) of section 323(a) the Com

mission shall publish a proposed labeling rule applicable to such

type (or class thereof).]

(b) RULES IN EFFECT; NEW RULES.-(1)(A) Any labeling rule in

effect on the date of the enactment of the National Appliance

Energy Conservation Act of 1987 shall remain in effect until amended, by rule, by the Commission.

(B) After the date of the enactment of the National Appliance

Energy Conservation Act of 1987 and not later than 30 days after

the date on which a proposed test procedure applicable to a covered

product of any of the types specified in paragraphs (1) through (13)

of section 322(a) (or class thereof) is prescribed under section 323(b),

the Commission shall publish a proposed labeling rule applicable to

such type (or class thereof).

(;;) Not earlier than 45 days nor later than 60 days after the date

on which test procedures are prescribed under section 323(b) with

respect to covered products of any type (or class thereof) specified

in paragraphs (1) through [(13)] (12) of section 322(a), the Commission shall prescribe labeling rules with respect to covered products

of such type (or class thereof). Not earlier than 45 days after the

date on which test procedures are prescribed under section 323(b)

with respect to covered products of a type specified in paragraph

[(14)] (13) of section 322(a), the Commission may prescribe labeling rules with respect to covered products of such type (or class

thereof).

* * * * * * *

(5) The Commission may delay the publication of a proposed labeling rule, or the prescription of a labeling rule, beyond the dates

specified in paragraph (1) or (3), if it determines that it cannot publish proposed labeling rules or prescribe labeling rules which meet

the requirements of this section on or prior to the date specified in

the applicable paragraph and publishes such determination in the

Federal Register, together with the reasons therefor. In any such

case, it shall publish proposed labeling rules or prescribe labeling

rules for covered products of such type (or class thereof) as soon as

 EE-RM-PET-100 COMMENT 97
50

practicable unless it determines (A) that labeling in accordance

with t' e section is not economically or technically feasible, or (g)

in the case of a type specified in paragraphs [(10) through (13),

(3), (5), and (7) of section 322(a), that labeling in accordance with

this section is not likely to assist consumers in purchasing decisions. Any such determination shall be published in the Federal

Register, together with the reasons therefor . This paragraph shall

not apply to the prescription of a labeling rule with respect to covered products of a type specified in paragraph [(14)] (13) of section 322(a).

[(C)(1)] (C) CONTENT OF LABEL.-(1) Subject to paragraph (6), a

rule prescribed under this section shall require that each covered

product in the type or class of covered products to which the rule

applies bear a label which discloses-

(A) the estimated annual operating cost of such product (determined in accordance with test procedures prescribed under

section 323), except that if-

(i) the Secretary determines that disclosure of estimated

annual operating cost is not technologically feasible, or

(ii) the Commission determines that such disclosure is

not likely to assist consumers in making purchasing decisions or is not economically feasible,

the Commission shall require disclosure of a different useful

measure of energy consumption (determined in accordance

with test procedures prescribed under section 323); and

(B) information respecting the range of estimated annual operating costs for covered products to which the rule applies;

except that if the Commission requires disclosure under subparagraph (A) of a measure of energy consumption different

from estimated annual operating cost, then the label shall disclose the range of such measure of energy consumption of covered products to which such rule applies.

* * * * * k *

[(d)] (d) EFFECT -E DATE.-A rule under this section (or an

amendment thereto) shall not apply to any covered product the

manufacture of which was completed prior to the effective date of

such rule or amendment, as the case may be.

[(e)] (e) STUDY OF CERTAIN PRODUCTS.-The Secretary, in consultation with the Commission, shall study consumer products for

which labeling rules under this section have not been proposed, in

order to determine (1) the aggregate energy consumption of such

products, and (2) whether the imposition of labeling requirements

under this section would be feasible and useful to consumers in

making purchasing decisions. The Secretary shall include the results of such study in the annual report under section 338.

(f) CONSULTATION.-The Secretary and the Commission shall consult with each other on a continuing basis as may be necessary or

appropriate to carry out their respective responsibilities under this

part. Before the Commission makes any determination under subsection (a)(1) [or (2)], it shall obtain the views of the Secretary and

shall take such views into account in making such determination.

(g) OTHER AUTHORITY OF THE COMMISSION.-Until such time as

labeling rules under this section take effect with respect to a type

I

51

Gr Clues of covered product, this section shall not affect any authority of the Commission under the Federal Trade Commission Act to

require labeling with respect to energy consumption of such type or

class of covered product.

[ENERGY EFFICIENCY STANDARDS

SEc. 325. (a)(1) The Secretary shall, by rule prescribe an energy

efficiency standard for each type (or class) of covered products specified in paragraphs (1) through ( 13) of section 322(a).

[(2) The Secretary may, by rule , prescribe an energy efficiency

standard for any type (or class) of covered products of a type specified in paragraph ( 14) of section 322(a), if he determines, for the

purposes of this section, that-

[(A) the average per household energy use within the

United States by products of such type (or class) exceeded 150

kilowatt-hours (or its Btu equivalent) for any 12-calendarmonth period ending before such determination;

[(B) the aggregate household energy use within the United

States by products of such type (or class) exceeded 4,200,000,000

kilowatt-hours (or its Btu equivalent) for any such 12-calendarmonth period;

[(C) substantial improvement in the energy efficiency of

products of such type (or class) is technologically feasible; and

[(D) the application of a labeling rule under section 324 to

such type (or class)

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) which

achieve the maximum energy efficiency which is technologically feasible to attain and is economically justified.

Not later than 2 years after the date of the enactment of this paragraph, the Secretary shall publish in the Federal Register a list of

those types (and classes) of covered products which he considers

may be subject to standards authorized to be prescribed under this

paragraph. The Secretary may revise such list from time to time

thereafter.

[(b) No standard for a type (or class) of covered products shall be

prescribed pursuant to subsection (a) if-

[(1) a test procedure has not been prescribed pursuant to

section 323 with respect to that type (or class) of products, or

[(2) the Secretary determines, by rule, that the establishment of such standard will not result in significant conservation of energy or that the establishment of such standard is

not technologically feasible or economically justified.

For purposes of section 327, a determination under paragraph (2)

with respect to any type (or class) of covered products shall have

the same effect as would a standard prescribed for such type (or

class) under this section.

[(c) Energy efficiency standards for each type ( or class) of covered products prescribed under this section shall be designed to

achieve the maximum improvement in energy efficiency which the

Secretary determines is technologically feasible and economically

justified. Such standards may be phased in, over a period not in

 EE-RM-PET-100 COMMENT 97
52

excess of 5 years. through the establish;: e nt of i ,ter,mmediate stand,

ards, as determined by the Secretary.

[(d) Before determining whether a standard is economically justified under subsection (c), the Secretary, after receiving any views

and comments furnished with respect to the proposed standard

under section 336, shall determine that the benefits of the standard

exceed its burdens based, to the greatest extent practicable, on a

weighing of the following factors:

[(1) the economic impact of the standard on the manufactur.

ers and on the consumers of the products subject to such standard,

[(2) the 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 of, or in the initial charges

for, or maintenance expenses of, the covered products which

are likely to result from the imposition of the standard,

[(3) the total projected amount of energy savings likely to

result directly from the i position of the standard,

[(fi) any lessening of the utility or the performance of the

covered products likely to result from the imposition of the

standard,

[(5) the impact of any lessening of competition determined

in writing by the Attorney General that is likely to result from

the imposition of the standard,

[(6) the need of the Nation to conserve energy, and

[(7) any other factors the Secretary considers relevant.

For purposes of paragraph (5), the Attorney General shall, not later

than 60 days after the publication of a proposed rule prescribing an

energy efficiency standard, make a determination of the impact, if

any, from any lessening of competition likely to result from such

standard and transmit such determination in writing to the Secretary, together with an analysis of the nature and extent of such

impact. Any such determination and analysis shall be published by

the Secretary in the Federal Register.

[te)(1) Subject to paragraph ( 2), the Secretary may, on application of any manufacturer , exempt such manufacturer from all or

part of the requirements of any rule prescribing an energy efficiency standard under this section for any period which. does not

extend beyond the date which is 24 months after the date such rule

is prescribed, if the Secretary finds that the annual gross revenues

to such manufacturer for the preceding 12-month period from all

its operations (including the manufacture and sale of covered products) does not exceed $8,000,000. In making such finding in the case

of any manufacturer, the Secretary shall take into account the

annual gross revenues of any other person who controls, is controlled by, or is under common control with, such manufacturer.

[(2) The Secretary may not exercise the authority granted under

paragraph (1) with respect to any type (or class) of covered product

subject to an energy efficiency standard established under this section unless he makes a finding , after obtaining the written views of

the Attorney General, that a failure to allow an exemption under

paragraph (1) would likely result in a lessening of competition.

[(f)(1) A rule prescribing an energy efficiency standard for a type

(or class) of covered products shall specify a level of energy efficien53

cy higher or lower than that which applies (or would apply) for

such type (or class) for any group of covered products which have

the same function or intended use, if the Secretary, in his discretion, determines that covered products within such group-

[(A) consume a different kind of energy from that consumed

by other covered products within such type (or class), or

[(B) have a capacity or other performance-related feature

which other products within such type (or class) do not have,

justifying to higher

other products s v^ithn rd sufrom ch type

that

(or class). In1 deterTmining under this paragraph whether a performance-related feature justifies the establishment of a higher or lower standard, the

Secretary shall consider such factors as the utility to the consumer

of such ny feature,

rule crib

such other

infactors lowerelevel

deems

[(2) Any prescribing a higher or ofaenergy efficiency under paragraph (1) shall include an explanation of the

basis on which such higher or lower level was established.

[(g) In prescribing energy efficiency standards under this section, fic ency stand

shll ards for types of proto the establishment of

ducts (or classes thereof) energy efficiency

paragraphs (1), (2), (4), (5), products (7), (9), (12), and (13) of

section 322(a).

[(h)(1) Not later than 5 years after prescribing an energy efficiency standard under this section (and from time to time thereafter), the Secretary shall-

[(A) conduct a reevaluation in order to determine whether

such standard should be amended in any manner, and

[(B) make, and publish in the Federal Register, such determination.

In conducting such reevaluation, the Secretary shall take into account such information as he deems relevant, including technological developments with respect to the type (or class) of covered products involved, and the economic impact of the standard.

TO If the Secretary determines under paragraph (1) that a

standard should be amended, he shall promptly publish a proposed

rule incorporating such amendments and afford interested persons

an opportunity to present oral and written data, views, and arguments. Such comment period shall not be less than 45 days.

[(i) Any energy efficiency standard shall be prescribed in accordance with the following procedure:

1(1) The Secretary shall (A) publish an advance notice of proposed rulemaking which specifies the type (or class) of covered

products to which the rule is likely to apply, and (B) invite interested persons to submit, within 45 days after the date of publication of

such advance notice, written presentations of data, views, and arguments relevant to establishing such an energy efficiency standard.

[(2) An advance notice of proposed rulemaking under paragraph

(1) shall be published by the Secretary-

[(A) in the case of types of covered products (or classes

thereof) of the types specified in paragraphs (1), (2), (4), (5), (6),

(7), (9), (12), and (13) of section 322(a), not later than 30 days

after a test procedure with respect to that type of covered

products (or class thereof) has been prescribed, or 45 days after

t

 EE-RM-PET-100 COMMENT 97
54

the date of the enactment of this subparagraph, whichever is

later; and

(B) in the case of types of covered products ( or classes

thereof) specified in paragraph (3), (8), (10), and (11), of section

322(a), not later than 30 days after a test procedure with respect to that type (or class) of covered products has been prescribed, or one year after the date of the enactment of this subparagraph, whichever is later.

[(3) A proposed rule which prescribes an energy efficiency standard for a type (or class) of covered products may not be published

earlier than 60 days after the date of publication of advance notice

of proposed rulemaking for such type ( or class). The Secretary shall

determine the maximum improvement in energy efficiency that is

technologically feasible for each type ( or class) of covered products

in prescribing such standard and if such standard is not designed

to achieve such efficiency, the Secretary shall state in the proposed

rule the reasons therefor. After the publication of such proposed

rulemaking, the Secretary shall afford interested persons, in accordance with section 336, an opportunity to present oral and written comments (including an opportunity to question those who

make such presentations, as provided in such section) on matters

relating to such proposed rule, including-

[(A) whether the standard to be prescribed is economically

justified (taking into account those factors which the Secretary

must consider under subsection (d)),

[(B) whether the standard will achieve the maximum improvement in energy efficiency which is technologically feasible,

[(C) if the standard will not achieve such improvement,

whether the reasons for not achieving such improvement are

adequate, and

[(D) whether such rule should prescribe a level of energy efficiency which is higher or lower than that which would otherwise apply in the case of any group of products within the type

(or class) to be subject to such standard.

[(4) A rule prescribing an energy efficiency standard for a type

(or class) of covered products may not be published earlier than 60

days after the date of publication of the proposed rule under this

section for such type (or class). Such rule shall be published as soon

as practicable after such 60-day period, but in no event later than 2

years after publication of the advance notice. Such rule shall take

effect not earlier than 180 days after the date of its publication in

the Federal Register. Such rule (or any amendment thereto) shall

not apply to any covered products the manufacture of which was

completed before the effective date of the rule or amendment as

the case may be.

[(j) An energy efficiency standard prescribed under this section

shall include test procedures prescribed in accordance with section

323, and may include any requirement which the Secretary determines is necessary to assure that each covered product to which

such standard applies meets the required minimum level of energy

efficiency specified in such standard.]

55

1' RL z CONS 1TIJ'r STANDARDS

SEC. 325. (a) PURPOSES.-The purposes of this section are to-

(1) provide Federal energy conservation standards applicable

to covered products; and

(2) authorize the Secretary to prescribe amended or new

energy conservation standards for each type (or class) of covered

product.

(b) STANDARDS FOR REFRIGERATORS, REFRIGERATOR-FREEZERS,

AND FREEZERS.-(1) The following is the maximum energy use allowed in kilowatt hours per year for the following products (other

than those described in paragraph (2)) manufactured on or after

January 1,990.7

Energy Standards

Equations

Refrigerators and Refrigerator-Freezers with manual defrost .............. 16.3AV+316

Refrigerator-Freezers-partial automatic defrost.. ................................. 21.8 AV-t- 429

Refi•i^eratar-Freezers-automatic defrost withLop mounted freezer without ice ......................................................... 23.5 AV+471

Side mounted freezer without ice ....................................................... 27.7 AV+488

Bottom mounted freezer without ice .................................................. 27.7AV+488

Top mounted freezer with through the door ice service .................. 26.4 AV+535

Side mounted freezer with through the door ice .............................. 30.9AV+547

Upright Freezers with:

Manual defrost ...................................................................................... 10.9 AV+422

Automatic defrost .................................................................................. 16.0 AV+ 623

Chest Freezers and all other freezers .................. ......................... ............. . 14.8 AV+223

(2) The standards described in paragraph (1) do not apply to refrigerators and refrigerator-freezers with total refrigerated volume

exceeding 39 cubic feet or freezers with total refrigerated volume exceeding 30 cubic feet.

(3)(A)(i) The Secretary shall publish a proposed rule, no later than

July 1, 1988, to determine if the standards established by paragraph

(1) should be amended. The Secretary shall publish a final rule no

later than July 1, 1989, which shall contain such amendment, if

any, and provide that the amendment shall apply to products manufactured on or after January 1, 1993. If such a final rule is not

published before January 1, 1990, any amendment of such standards shall apply to products manufactured on or after January 1,

1995. Nothing in this subsection provides any justification or defense for a failure by the Secretary to comply with the nondiscretionary duty to publish final rules by the dates stated in this paragraph.

(ii)(T) If the Secretary does not publish a final rule before January

1, .1990, relating to the revision of the energy conservation standards

for refrigerators, refrigerator-freezers and freezers, the regulations

which established standards for such products and were promulgated by the California Energy Commission on December 14, 1984, to be

effective January 1, 1992 (or any amendments to such standards

that are not more stringent than the standards in the original regulations), shall apply in. California to such products, effective beginning January 1, 1993, and shall not be preempted after such effective date by any energy conservation standard established in this

section or prescribed, on or after January 1, 1990, under this section.

(II) If the Secretary does not publish a final rule before January 1,

1992, relating to the revision of the energy conservation standards

 EE-RM-PET-100 COMMENT 97
for refrigerators,

56 57

refrigerator-freezers and freezer.. ^ ° State re; b „ion `aia

which apply to such products manufactured on or after January 1

1995, shall apply to such products until the effective date or a rule

issued under this section with respect to such products.

(B) After the publication of a final rule under subparagraph (A)

the Secretary shall publish a final rule no later than five years

after the date of publication of the previous final rule. The Secretary shall determine in such rule whether to amend the standards

in effect for the products described in paragraph (1).

(C) Any amendment prescribed under subparagraph (B) shall

apply to products manufactured after a date which is five years

a fter-

(i) the effective date of the previous amendment; or

(ii) if the previous final rule did not amend the standards,

the earliest date by which the previous amendment could have

been effective;

except that in no case may any amended standard apply to products

manufactured within three years after publication of the final rule

establishing such amended standard.

(C) STANDARDS FOR ROOM AIR CONDITIONERS.-(1) The energy efficiency ratio of room air conditioners shall be not less than the following for products manufactured on or after January 1, 1990:

Product class

Without Reverse Cycle and With Louvered Sides: Ratio

Less than 6,000 Btu ................................................................................................ 8.0

6,000 to 7,999 Btu .................................................................................................... 8.5

8.000 to 13,999 Btu_ ................................................................................................ 9.0

14,000 to 19,999 Btu ................................................................................................ 8.8

20,000 and more Btu .............................................................................................. 8.2

Without Reverse Cycle and Without Louvered Sides:

Less than 6, 000 Btu ................................................................................................ 8.0

6,000 to 7,999 Btu.. ........................ .................................................. ...................... 85

8,000 to 13,999 Btu .................................................................................................. 8.5

14,000 to 79,999 Btu ................................................................................................ 8.5

20,000 and more Btu ............................................................................................ 8.2

With Reverse Cycle and With Louvered Sides .......................................................... 8.5

With Reverse C'vcle. Without Louvered Sides ............................................................ 8.0

(2)(A) The Secretary shall publish a final rule no later than January 1, 1992, to determine if the standards established under paragraph (1) should be ameded. Such rule shall contain such amendment, if any, and provide that the amendment shall apply to products manufactured on or after January 1, 1995.

(B) After January 1, 1992, the Secretary shall publish a final rule

no later than five years after the date of publication of a previous

final rule. The Secretary shall determine in such rule whether to

amend the standards in effect for room air conditioners.

(C) Any amendment prescribed under subparagraph (B) shall

apply to products manufactured after a date which is five years

later-

(i) the effective date of the previous amendment; or

(ii) if the previous final rule did not amend the standards,

the earliest date by which a previous amendment could have

been effective;

except that in no case may any amended standard apply to products

manufactured within three years after publication of the final rule

establishing such amended standard.

(d) STANDARDS FOR CENTRAL AIR CONDITIONERS AND HEAT

FUMPS.-(1) The seasonal energy efficiency ratio of central air conditioners and central air conditioning heat pumps shall be not less

than the following:

(A) Split Systems: 10. 0 for products manufactured on or after

January 1, 1992.

(B) Single Package Systems: 9. 7 for products manufactured on

or after January 1, 1993.

(2) The heating seasonal performance factor of central air conditioning heat pumps shall be not less than the following:

(A) Split Systems: 6.8 for products manufactured on or after

January 1, 1992.

(B) Single Package Systems: 6: 6 for products manufactured on

or after January 1, 1993.

(3) (A) The Secretary shall publish a final rule no later than January 1, 1994, to determine whether the standards established under

paragraph (1) should be amended. Such rule shall contain such

amendment, if any, and provide that the amendment shall apply to

products manufactured on or after January 1, 1999. The Secretary

shall publish a final rule no later than January 1, 1994, to determine whether the standards established under paragraph (2) shall

be amended. Such rule shall contain such amendment, if any, and

provide that the amendment shall apply to products manufactured

on or after January 1, 2002.

(B) The Secretary shall publish a final rule after January 1, 1994,

and no later than January 1, 2001, to determine whether the standards in effect for central air conditioners and central air conditioning heat pumps should be amended. Such rule shall provide that

any amendment shall apply to products manufactured on or after

January 1, 2006.

(e) STANDARDS FOR WATER HEATERS; POOL HEATERS; DIRECT

HEATING EQUIPMENT.-(Y) The energy factor of water heaters shall

be not less than the following for products manufactured on or after

January 1, 1990:

(A) Gas Water Heater, . 62 - (.0019 x Rated Storage Volume in Gallons).

(B) Oil Water Heater.' . 59 - (.0019 x Rated Storage Volume in Gallons).

(C) Electric Water Heater:.95 - (.00132 x Rated Storage Volume in Gallons).

(2) The thermal efficiency of pool heaters manufactured on or

after January 1, 1990, shall not be less than 78 percent.

(3) The efficiencies of gas direct heating equipment manufactured

on or after January 1 , 1990, shall be not less than the following:

Wall: Percent

Fan type: AFUE

Up to 42,000 Btu/hour ................................................................................... 73

Over 42,000 Btu/hour ..................................................................................... 74

Gravity type:

Up to 10, 000 Btu/hour ................................................................................... 59

Over 10,000 Btu/hour up to 12,000 Btu /hour ............................................ 60

Over 12,000 Btu/hour up to 15,000 Btu/hour ............................................ 61

Over 75,000 Btu/hour up to 1.9, 000 Btu/hour ............................................ 62

Over 19,000 Btu/hour up to 27,000 Btu/hour ............................................ 63

Over 27, 000 Btu/hour up to 46,000 Btu/hour ............................................ 64

Over 4 6, 000 Btu/hour .. ................................................................................... 65

Floor.

Up to 37,000 Btu/hour ................................................................................... 56

Over 37,000 Btu/hour..................................................................................... 57

 EE-RM-PET-100 COMMENT 97
58

Room:

7p to Id,000 Btu: aour ................................................ . ... .

, ..... ............

Over 20,000 Btu/hour up to 27000 Btu/hour....

. . . .. 5& ..................................

Over 27 000 Btu/hour up to 4 6000 Btu/hour 63 ............................................ Over 4 B, 000 Btu/hour........... . .... .

. 4........................................................

(4)(A) The Secretary shall publish final rules no later than Janu.

ary 1, 1992, to determine whether the standards established bypara.

graph (1), (2), or (3) for water heaters, pool heaters, and direct heating equipment should be amended. Such rule shall provide that any

amendment shall apply to products manufactured on or after Janu.

ary 1, 1995.

(B) The Secretary shall publish a final rule no later than January

1, 2000, to determine whether standards in effect for such products

should be amended. Such rule shall provide that any such amend.

ment shall apply to products manufactured on or after January 1

2005.

(f) STANDARDS FOR FUR,,.icES.-(1) Furnances (other than fun

paces designed solely for installation in mobile homes) manufactured on or after January 1, 1992, shall have an annual fuel utiliza.

tion efficiency of not less than 78 percent, except that-

(A) boilers (other than gas steam boilers) shall have an annual fuel utilization efficiency of not less than 80 percent

and gas steam boilers shall have an annual fuel utilization efficiency of not less than 75 percent; and

(B) the Secretary shall prescribe a final rule not later than

January 1, 1989, establishing an energy conservation stand- ard-

(i) Which is for furnaces (other than furnaces designed

solely for installation in mobile homes) having an input of

less than 45,000 Btu per hour and manufactured on or

after January 1, 1992;

(ii) which provides that the annual fuel utilization efficiency of such furnaces shall be a specific percent which is

not less than 71 percent and not more than 78 percent; and

(iii) which the Secretary determines is not likely to result

in a significant shift from gas heating to electric resistance

heating which respect to either residential construction or

furnace replacement.

(2) Furnaces which are designed solely for installation in mobile

homes and which are manufactured on or after September 1, 1990,

shall have an annual fuel utilization efficiency of not less than 75

percent.

(3)(A) The Secretary shall publish a final rule no later than January 1, 1992, to determine whether the standards established by paragraph (2) for mobile home furnaces should be amended. Such rule

shall provide that any amendment shall apply to products manufactured on or after January 1, 1994.

(B) The Secretary shall publish a final rule no later than January

1, 1994, to determine whether the standard; established by this subsection for furnaces (including mobile home furnaces) should be

amended. Such rule shall provide that any amendment shall apply

to products manufactured on or after January 1, 2002.

.. ...... ................... 57 . Over 18, 000 Btu/hour up to 20 000 Btu/hour .

59

(C) After January 1, 1997, and before January 1, 2007, the Secretary shall publish a final rule to determine whether standards in

effect for such products should be amended. Such rule shall contain

such, amendment, if any, and provide that any amendment shall

apply to products manufactured on or after January 1, 2012.

(g) STANDARDS FOR DISHWASHERS; CLOTHES WASHERS; CLOTHES

DEyERS.-(1) Dishwashers manufactured on or after January 1,

1988, shall be equipped with an option to dry without heat.

(2) All rinse cycles of clothes washers shall include an unheated

water option, but may have a heated water rinse option, for products manufactured on or after January 1, 1988.

(3) Gas clothes dryers shall not be equipped with a constant burning pilot for products manufactured on or after January 1, 1988.

(4)(A) The Secretary shall publish final rules no later than Januar" 1, 1990, to determine if the standards established under this

subsection for products described in paragraphs (1), (2), and (3)

should be amended. Such rules shall provide that any amendment

shall apply to products the manufacture of which is completed on or

after January 1, 1993.

(B) After January 1, 1990, the Secretary shall publish a final rule

no later than five years after the date of publication of the previous

final rule. The Secretary shall determine in such rule whether to

amend the standards in effect for such products.

(C) Any such amendment shall apply to products manufactured

after a date which is five years after-

(i) the effective date of the previous amendment; or

(ii) if the previous final rule did not amend the standard, the

earliest date by which a previous amendment could have been

in effect;

except that in no case may any amended standard apply to products

manufactured within three years after publication of the final rule

establishing such standard.

(h) STANDARDS FOR KITCHEN RANGES AND OVENS.-(1) Gas kitchen

ranges and ovens having an electrical supply cord shall not be

equipped with a constant burning pilot for products manufactured

on or after January 1, 1990.

(?)(A) The Secretary shall publish a final rule no later than January 1, 1992, to determine if the standards established for kitchen

ranges and ovens in this subsection should be amended. Such rule

shall contain such amendment, if any, and provide that the amendment shall apply to products manufactured on or after January 1,

1995.

(B) The Secretary shall publish a final rule no later than January

1, 1997, to determine whether standards in effect for such products

should be amended. Such rule shall apply to products manufactured on or after January 1, 2000.

(i) STANDARDS FOR OTHER COVERED PRODUCTS.--(1) The Secretary

may prescribe an energy conservation standard for any type (or

class) of covered products of a type specified in paragraph (13) of section 322(a) if the requirements of subsections (1) and (m) are met and

the Secretary determines that-

(A) the average per household energy use within the United

States by products of such type (or class) exceeded 150 kilowatt-

 EE-RM-PET-100 COMMENT 97
60

hours (or its Btu equivalent) for an 12-month period e;,•_ j ,

before such determination;

(B) the aggregate household energy use within the United

States by products of such type (or class) exceeded 4,200 000 000

kilowatt-hours (or its Btu equivalent) for any such 12-month

period;

(C) substantial improvement in the energy efficiency of products of such type (or class) is technologically feasible; and

(D) the application of a labeling rule under section 324 to

such type (or class) is not likely to be sufficient to induce manu.

facturers to produce, and consumers and other persons to purchase, covered products of such type (or class) which achieve the

maximum energy efficiency which is technologically feasible

and economically justified.

(2) Any new or amended standard for covered products of a type

specified in paragraph (13) of section 322(a) shall not apply to products manufactured within five years after the publication of a final

rule establishing such standard.

(d) The Secretary may, in accordance with subsections (1) and (rn),

prescribe an energy conservation standard for television sets. Any

such standard may not become effective with respect to products

manufactured before January 1, 1992.

(j) FURTHER RULEMAKING. After issuance of the last final rules

required under subsections (b) through (h) of this section, the Secretary may publish final rules to determine whether standards for a

covered product should be amended. An amendment prescribed

under this subsection shall apply to products manufactured after a

date which is five years after-

(1) the effective date of the previous amendment made pursuant to this part; or

(2) if the previous final rule published under this part did

not amend the standard, the earliest date by which a previous

amendment could have been in effect,

except that in no case may an amended standard apply to products

manufactured within three years (in the case of refrigerators, refrigerator-freezers, and freezers, room air-conditioners, dishwashers,

clothes washers, clothes dryers, and kitchen ranges and ovens) or

five years (in the case of central air-conditioners and heat pumps,

water heaters, pool heaters, direct heating equipment, and furnaces)

after publication of the final rule establishing a standard.

(k) PETITION FOR AN AMENDED STANDARD .-(1) With respect to

each covered product describ ed in paragraphs (1) through (11) of

section 322(a), any person may petition the Secretary to conduct a

rulemaking to determine for any such covered product if the standards contained either in the last final rule required for such

product under subsections (b) through (h), as the case may be, of this

section or in a final rule published for such product under subsection (j) or this subsection should be amended.

(2)(A) The Secretary shall grant a petition if he finds that it contains evidence which, assuming no other evidence were considered,

provides an adequate basis for amending the standards under the

following criteria-

(i) amended standards will result in significant conservation

of energy;

61

(ii) amended standards are technologically feasible; and

(iii) amended standards are cost effective as described in subsection (1X2)(B)(i)(II).

(B) The grant of a petition by the Secretary under this subsection

creates no presumption with respect to the Secretary's determination

of any of the criteria in a rulemaking under this section.

(3) An amendment prescribed under this subsection shall apply to

products manufactured after a date which is five years after-

(A) the effective date of the previous amendment pursuant to

thart; or

(%)P if the previous final rule published under this part did

not amend the standard, the earliest date by which a previous

amendment could have been in effect;

except that in no case may an amended standard apply to products

manufactured within three years (in the case of refrigerators, refrigerator-freezers, and freezers, room air-conditioners, dishwashers,

clothes washers, clothes dryers, and kitchen ranges and ovens) or

five years (in the case of central air-conditioners and heat pumps,

water heaters, pool heaters, direct heating equipment, and (urnaces)

after publication of the final rule establishing a standard.'.

(1) CRITERIA FOR PRESCRIBING NEW OR AMENDED STANDARDS.-

(1) The Secretary may not prescribe any amended standard which

increases the maximum allowable energy use, or decreases the minimum required energy efficiency, of a covered product.

(2)(A) Any new or amended energy conservation standard prescribed by the Secretary under this section for any type (or class) of

covered product shall be designed to achieve the maximum improvement in energy efficiency which the Secretary determines is technologically feasible and economically justified.

(B)(i) In determining whether a standard is economically justified, the Secretary shall, after receiving views and comments furnished with respect to the proposed standard, determine whether the

benefits of the standard exceed its burdens by, to the greatest extent

practicable, considering-

(I) the economic impact of the standard on the manufacturers

and on the consumers of the products subject to such standard;

(II) the savings in operating costs throughout the estimated

average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges

for, or maintenance expenses of, the covered products which are

likely to result from the imposition of the standard;

(III) the total projected amount of energy savings likely to

result directly from the imposition of the standard;

(IV) any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard,'

(V) the impact of any lessening of competition, as determined

in writing by the Attorney General, that is likely to result from

the imposition of the standard;

(VI) the need for national energy conservation; and

(VII) other factors the Secretary considers relevant.

(ii) For purposes of clause (i)(V), the Attorney General shall make

a determination of the impact, if any, of any lessening of competition likely to result from such standard and shall transmit such de-

 EE-RM-PET-100 COMMENT 97
62

termination. not later than 60 days after the publication of a pro.

posed rule prescribing or amending an energy conservation stand.

ard, in writing to the Secretary, together with an analysis of the

nature and extent of such impact. Any such determination and

analysis shall be published by the Secretary in the Federal Register.

(iii) If the Secretary finds that the additional cost to the consumer

of purchasing a product complying with an energy conservation

standard level will be less than three times the value of the energy

savings during the first year that the consumer will receive as a

result of the standard, as calculated under the applicable test procedure, there shall be a rebuttal presumption that such standard level

is economically justified. A determination by the Secretary that

such criterion is not met shall not be taken into consideration in the

Secretary 's determination of whether a standard is economically justified.

(3) The Secretary may not prescribe an amended or new standard

under this section for a type (or class) of covered product if-

(A) for products other than dishwashers, clothes washers

clothes dryers, and kitchen ranges and ovens, a test procedure

has not been prescribed pursuant to section 323 with respect to

that type (or class) of product; or

(B) the Secretary determines, by rule, that the establishment

of such standard will not result in significant conservation of

energy or that the establishment of such standard is not techno.

logically feasible or economicaly justified.

For purposes of section 327, a determination under subparagraph

(B) with respect to any type (or class) of covered products shall have

the same effect as would a standard prescribed for such type (or

class).

(4) The Secretary may not prescribe an amended or new standard

under this section if the Secretary finds (and publishes such finding) that interested persons have established by a preponderance of

the evidence that the standard is likely to result in the unavailabilit in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, ca- pacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's

finding. The failure of some type (or classes) to meet this criterion

shall not affect the Secretary 's determination of whether to prescribe

a standard for other types (or classes)

(m) PROCEDURE FOR PRESCRIBING New op AMENDED STANDARDS.-Any new or amended energy conservation standard shall be

prescribed in accordance with the following procedure:

(1) The Secretary-

(A) shall publish an advance notice of proposed rulemaking which specifies the type (or class) of covered products to

which the rule may apply;

(B) shall invite interested persons to submit, within 60

days after the date of publication of such advance notice,

written presentations of data, views, and arguments in response to such notice; and

(C) may identify proposed or amended standards that

may be prescribed.

63

(2) A proposed rule which prescribes an amended or new

energy conservation standard or prescribes no amendment or ho

new standard for a type (or class) of covered products shall be

published in the Federal Register. In prescribing any such, proposed rule with respect to a standard, the Secretary shall determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for

each type (or class) of covered products. If such standard is not

designed to achieve such efficiency or use, the Secretary shall

state in the proposed rule the reasons therefor.

(3) After the publication of such proposed rulemaking, the

Secretary shall, in accordance with section 336, afford interested persons an opportunity, during a period of not less than 60

days, to present oral and written comments (including an opportunity to question those who make such presentations, as pro0ided in such section) on matters relating to such proposed rule,

including-

(A) whether the standard to be prescribed is economically

justified (taking into account those factors which the Secretary must consider under subsection (1)(2)) or will result in

the effects described in subsection (1)(4);

(B) whether the standard will achieve the maximum improvement in energy efficiency which is technologically feasible,

(C) if the standard will not achieve such improvement,

whether the reasons for not achieving such improvement

are adequate; and

(D) whether such rule should prescribe a level of energy

use or efficiency which is higher or lower than that which

would otherwise apply in the case of any group of products

within the type (or class) that will be subject to such standard.

(;1) A final rule prescribing an amended or new energy conservation standard or prescribing no amended or new standard for

a type (or class) of covered products shall be published as soon

as is practicable, but not less than 100 days, after publication of

the proposed rule in the Federal Register.

(n) SPECIAL RULE FOR CERTAIN TYPES OR CLASSES OF PRODUCTS.-

(1) A rule prescribing an energy conservation standard for a type (or

class) of covered products shall specify a level of energy use of efficiency higher or lower than that which applies (or would apply) for

such type (or class) for any group of covered products which have

the same function or intended use, if the Secretary determines that

covered products within such group-

(A) consume a different kind of energy from that consumed by

other covered products within such type (or class); or

(B) have a capacity or other performance-related feature

which other products within such type (or class) do not have

and such feature justifies a higher or lower standard from that

which applies (or will apply) to other products within such type

(or class).

In making a determination under this paragraph concerning whether a performance-related feature justifies the establishment of a

higher or lower standard, the Secretary shall consider such factors

 EE-RM-PET-100 COMMENT 97
64

as the utility to the consumer of such a feature, and such other fac.

tors as the Secretary deems appropriate.

(2) Any rule prescribing a higher or lower level of energy use or

efficiency under paragraph (1) shall include an explanation of the

basis on which such higher or lower level was established.

(o) INCLUSION IN STANDARDS OF TEST PROCEDURES AND 0THE.0

REQUIREMENTS. Any new or amended energy conservation standard prescribed under this section shall include, where applicable

test procedures prescribed in accordance with section 323 and may

include any requirement which the Secretary determines is necessary

to assure that each covered product to which such standard applies

meets the required minimum level of energy efficiency or maximum

quantity of energy use specified in such standard.

(p) DETERMINATION OF COMPLIANCE WITH STANDARDS.-CO;npli•

ance with, and performance under, the energy conservation siandards (except for design standards authorized by this part) established in, or prescribed under, this section shall be determined using

the test procedures and corresponding compliance criteria prescribed

under section 323.

(q) SMALL MANUFACTURER EXEMPTION.-(1) Subject to paragraph

(2), the Secretary may, on application of any manufacturer, exempt

such manufacturer from all or part of the requirements of any

energy conservation standard established in or prescribed under this

section for any period not longer than the 24-month period beginning on the date such rule becomes effective, if the Secretary finds

that the annual gross revenues of such manufacturer from all its

operations (including the manufacture and sale of covered products)

does not exceed $8,000,000 for the 12-month period preceding the

date of the application. In making such finding with respect to any

manufacturer, the Secretary shall take into account the annual

gross revenues of any other person who controls, is controlled by, or

is under common control with, such manufacturer.

(2) The Secretary may not exercise the authority granted under

paragraph (1) with respect to any type (or class) of covered product

subject to an energy conservation standard under this section unless

the Secretary makes a finding, after obtaining the written views of

the Attorney General, that a failure to allow an exemption under

paragraph (1) would likely result in a lessening of competition.

REQUIREMENTS OF MANUFACTURERS

SEC. 326. [(a)] (a) IN GENERAL.-Each manufacturer of a covered

product to which a rule under section 324 applies shall provide a

label which meets, and is displayed in accordance with, the requirements of such rule. If such manufacturer or any distributor, retailer, or private labeler of such product advertises such product in a

catalog from which it may be purchased, such catalog shall contain

all information required to be displayed on the label, except as otherwise provided by rule of the Commission. The preceding sentence

shall not require that a catalog contain information respecting a

covered product if the distribution of such catalog commenced

before the effective date of the labeling rule under section 324 applicable to such product.

65

[(b)(1)] (b) NOTIFICATION.-(1) Each manufacturer of a covered

product to which a rule under section 324 applies shall notify the

Secretary or the Commission-

(A) not later than 60 days after the date such rule takes

effect, of the models in current production (and starting serial

numbers of those models) to which such rule apples; and

(B) prior to commencement of production, of all models subsequently produced (and starting serial numbers of those

models) to which such rule applies.

(3) When requested-

(A) by the Secretary for purposes of ascertaining whether a

product subject to a standard established in or prescribed

under section 325 is in compliance with that standard, or

[(c) Each] (c) DEADLINE.-Each manufacturer shall use labels

reflecting the range data required to be disclosed under section

324(c)(1)(B) after the expiration of 60 days following the date of

publication of any revised table of ranges unless the rule under section 324 provides for a later date. The Commission may not require

labels be changed to reflect revised tables of ranges more often

than annually.

[(d) For purposes of carrying out this part, the Secretary may

require, under authority available to him under this part or other

provisions of law administered by him, each manufacturer of covered products to submit such information or reports of any kind or

nature directly to the Secretary with respect to energy efficiency of

such covered products, and with respect to the economic impact of

any proposed energy efficiency standard, as the Secretary determines may be necessary to establish and revise test procedures, labeling rules, and energy efficiency standards for such products and

to insure compliance with the requirements of this part. The provisions of section 11(d) of the Energy Supply and Environmental Coordination Act of 1974 shall apply with respect to information obtained under this subsection to the same extent and in the same

manner as it applies with respect to energy information obtained

under section 11 of such Act.]

(d) INFORMATION REQUIREMENTS.-(1) For purposes of carrying

out this part, the Secretary may require, under this part or other

provision of law administered by the Secretary, each manufacturer of a covered product to submit information or reports to the Secretary with respect to energy efficiency or energy use of such covered

product and the economic impact of any proposed energy conservation standard, as the Secretary determines may be necessary to establish and revise test procedures, labeling rules, and energy conservation standards for such product and to insure compliance with

the requirements of this part. In making any determination under

this paragraph, the Secretary shall consider existing public sources

of information, including nationally recognized certification programs of trade associations.

 EE-RM-PET-100 COMMENT 97
66

(2) The Secretary shall exercise authority under this section in

^Sigi?ed to ;i'tinii iize unnecessa n bu rdens on I zanaf aCtar ens of covered products.

(3) The provisions of section 11(d) of the Energy Supply and Envi.

ronmental Coordination Act of 1974 shall apply with respect to in.

formation obtained under this subsection to the same extent and in the same mannner as they apply with respect to energy information

obtained under section 11 of such Act.

[EFFECT ON OTHER LAW

[SEC. 327. (a) This part supersedes any State regulation insofar

as such State regulation may now or hereafter provide for-

[(1) the disclosure of information with respect to any meas.

ure of energy consumption of any covered product-

[(A) if there is any rule under section 323 applicable to

such covered product, and such State regulation requires

testing in any manner other than that prescribed in such

rule under section 323, or

[(B) if there is a rule under section 324 applicable to

such covered product and such State regulation requires

disclosure of information other than information disclosed

in accordance with such rule under section 324; or

[(2) any energy efficiency standard or other requirement

with respect to energy efficiency or energy use of a covered

product-

[(A) if there is a standard under section 325 applicable

to such product, and such State regulation is not identical

to such standard, or

[(B) if there is a rule under section 323 or 324 applicable

to such product and such State regulation requires testing

in accordance with test procedures which are not identical

to the test procedures specified in such rule.

[(b)(1) If a State regulation is prescribed which establishes an

energy efficiency standard or other requirement respecting energy

use or energy efficiency of a type (or class) of covered products and

which is not superseded by subsection (a)(2) or (b)(2), then any

person subject to such regulation may file a petition with the Secretary requesting that the Secretary prescribe a rule under this

subsection which supersedes such State regulation in whole or in

part. The Secretary, after consideration of the petition , the views of

the affected State and the comments of any interested person, shall

issue such requested rule only if the Secretary finds (and publishes

such finding) that-

[(A) there is no significant State or local interest sufficient

to justify such State regulation; and

[(B) such State regulation unduly burdens interstate commerce.

[(2) If a State regulation is prescribed after January 1, 1978,

which establishes an energy efficiency standard or other requirement respecting energy use or energy efficiency of a type (or class)

of covered products and which is not superseded by subsection

(a)(2), then such State regulation is superseded. Notwithstanding

the requirement of the preceding sentence , such State may file a

1

67

petition with the Secretary requesting a rule that such State regulation is not superseded pursuant to this paragraph. The Secretary,

after consideration of the petition and the comments of interested

persons, shall prescribe such rule only if he finds there is a significant State or local interest to justify such State regulations; except

that the Secretary may not prescribe such State regulations; except

that the Secretary may not prescribe such rule if he finds that

such State regulation would unduly burden interstate commerce.

[(3) Notwithstanding subsection (a)(2), any State prescribing a

State regulation which provides an energy efficiency standard or

other requirement respecting energy use or energy efficiency for

any type (or class) of covered products for which a Federal energy

efficiency standard is applicable may file a petititon with the Secretary requesting a rule that such regulation not be superseded. The

Secretary, after consideration of the petition and the comments of

interested persons, shall prescribe such rule only if he finds (and

publishes such finding) that-

[(A) there is a significant State or local interest to justify

such State regulation; and

[(B) such State regulation contains a more stringent energy

efficiency standard than such Federal standard;

except that the Secretary may not prescribe such rule if he finds

that such State regulation would unduly burden interstate commerce.

[(4) The Secretary shall give notice of any petition filed under

this subsection and afford interested persons a reasonable opportunity to make written comments thereon. The Secretary, within 6

months after the date any petition is filed, shall deny such petition

or prescribe the requested rule, except that the Secretary may publish a notice in the Federal Register extending such period to a

date certain. Such notice shall include the reasons for delay. In the

case of any denial of a petition under this subsection, the Secretary

shall publish in the Federal Register notice of such denial and the

reasons for such denial.

[(5) The requirement of paragraph (2) shall not continue in

effect after July 1, 1980, in the case of any type (or class) of covered

products specified in paragraphs (1) through (13) of section 322(a).

[(c) Notwithstanding the provisions of subsection (a), any State

regulation which sets forth procurement standards for a State (or

political subdivision thereof) shall not be superseded by the provisions of this part if such State standards are more stringent than

the corresponding Federal standards.

[(d) For purposes of this section, the term "State regulation"

means a law or regulation of a State or political subdivision thereof.

[(e) Any disclosure with respect to energy use, energy efficiency,

or estimated annual operating cost, which is required to be made

under the provisions of this part, shall not create an express or implied warranty under State or Federal law that such energy efficiency will be achieved, or that such energy use or estimated

annual oprating cost will not be exceeded, under conditions of

actual use.]

 EE-RM-PET-100 COMMENT 97
68

EFFECT 03 OTHER LA W

.Ssc. J2;. (a% PREEMPTION OF TESTING AND LABELING REQrjIRE.

MENTS.-(1) Effective on the date of enactment of the National AFpliance Energy Conservation Act of 1987, this part supersedes any

State regulation insofar as such State regulation provides at any

time for the disclosure of information with respect to any measure

of energy consumption of any covered product if-

(A) such State regulation requires testing or the use of any

measure of energy consumption or energy descriptor in any

manner other than that provided under section 323; or

(B) such State regulation requires disclosure of information

with respect to the energy use or energy efficiency of any covered

product other than information required under section 324.

(2) For purposes of this section, the term "State regulation" means

a law, regulation, or other requirement of a State or its political

subdivisions.

(b) GENERAL P'ULE OF PREEMPTION FOR ENERGY CONSERVATION

STANDARDS BEFORE FEDERAL STANDARD BECOMES EFFECTIVE FOR A

PRoDucT-Effective on the date of enactment of the National Appliance Energy Conservation Act of 1987 and ending on the effective

date of an energy conservation standard established under section

325 for any covered product, no State regulation, or revision thereof,

concerning the energy efficiency or energy use of the covered product

shall be effective with respect to such covered product, unless the

State regulation or revision-

(1) was prescribed or enacted before January 8, 1987, and is

applicable to products before January 3, 1988;

(2) is a State procurement regulation described in subsection

(e),-

(3) is a regulation described in subsection (f)(1) or is prescribed or enacted in a building code for new construction described in subsection (f)(z :

i4) is e regulation prohing the use in pool heaters of a constant burning pilot;

(5) is a regulation described in subsection (d)(5)(B) for which a

waiver has been granted under subsection (d); or

(6) is a regulation effective on or after January 1, 1992, concerning the energy efficiency or energy use of television sets.

(c.) GENERAL RULE OF PREEMPTION FOR ENERGY CONSERVATION

STANDARDS WHEN FEDERAL STANDARD BECOMES EFFECTIVE FOR A

PRODUCT.-Except as provided in section 325(b)(3)(A)(ii) and effective on the effective date of an energy conservation standard established in or prescribed under section 325 for any covered product, no

State regulation concerning the energy efficiency or energy use of

such covered product shall be effective with respect to such product

unless the regulation-

(1) is a regulation described in paragraph (2) or (4) of subsec- tion (b),-

(2) i.s a regulation which has been granted a waiver under

subsection (d),• or

(3) is in a building code for new construction described in

subsection (f)(3).

69

jy4 VER OF FEDERAL PRE..MMIPTTON.-(1)(A) Any State with a

(d) State regulation which provides for any energy conservation standrd or other requirement with respect to energy use or energy effiaciency for any type (or class) of covered product for which there is a

federal energy conservation standard under section 325 may file a

petibewith the Sretary rule th

come effective with respect to

requestin

g such covered pr

such State odu t. regulation

(0)

Subject to paragraphs (2) through (5), the Secretary shall,

Zz I VI the period described in paragrap (2) and after consideration

petition and the comments of interested persons, prescribe of the such rule if the Secretary finds (and publishes such finding) that

the State has established by a preponderance of the evidence that

such State regulation is needed to meet unusual and compelling

State or local energy interests.

(C) For purposes of this subsection, the term unusual and compelling State or local energy interests " means interests which-

(i) are substantially different in nature or magnitude than

those prevailing in the United States generally; and

(ii) are such that the costs, benefits, burdens, and reliability

of energy savings resulting from the State regulation make such

regulation preferable or necessary when measured against the

costs, benefits, burdens, and reliability of alternative approaches to energy savings or production, including reliance on reasonable predictable market-induced improvements in efficiency of

all products subject to the State regulation.

The factors described in clause (ii) shall be evaluated within the

context of the State 's energy plan and forecast.

(2) The Secretary shall give notice of any petition filed under

(1)(A) d ersons a reasonable opaortu paragraph and aff

par

rd intereste

nity to make written comments, including rebuttal comments, there ,

on. The Secretary shall, within the 6'-month period beginning on the

date on which any such petition is filed, deny such petition or pre-

,

scrz e the requested rote, except that the Secretary may publi>n a

noti e in the Federal Register extending sr_<ch period to a date certain but no longer than one year after the date on which the petition was filed. Such notice shall include the reasons for delay. In

the case of any denial of a petition under this subsection, the Secretary shall publish in the Federal Register notice of, and the reasons

for, such denial.

(3) The Secretary may not prescribe a rule under this subsection if

the Secretary finds (and publishes such finding) that interested persons have established, by a preponderance of the evidence, that such

State regulation will significantly burden manufacturing, marketing, distribution,

sale, or servicing of the covered product on a national basis. In determining whether to make such finding, the Secretary shall evaluate all relevant factors, including-

(A) the extent to which the State regulation will increase

manufacturing or distribution costs of manufacturers, distributors, and others;

(B) the extent to which the State regulation will disadvantage

smaller manufacturers, distributors, or dealers or lessen competition in the sale of the covered product in the State;

(C) the extent to which the State regulation would cause a

burden to manufacturers to redesign and produce the covered

 EE-RM-PET-100 COMMENT 97
P

70

product type (or clip s,^ taking into consideration the extent to which the regulation would result in a reduction-

(i) in the current models, or in the projected availability

of models, that could be shipped on the effective date of the

regulation to the State and within the United States; or

(ii) in the current or projected sales volume of the covered

product type (or class) in the State and the United States;

and

(D) the extent to which the State regulation is likely to contribute significantly to a proliferation of State appliance effi.

ciency requirements and the cumulative impact such requirements would have.

(4) The Secretary may not prescribe a rule under this subsection if

the Secretary finds (and publishes such finding) that interested per.

sons have established, by a preponderance of the evidence, that the

State regulation is likely to result in the unavailability in the State

of any covered product type (or class) of performance characteristics

(including reliability), features, sizes, capacities, and volumes that

are substantially the same as those generally available in the State

at the time of the Secretary 's finding, except that the failure of some

classes (or types) to meet this criterion shall not affect the Secretary's determination of whether to prescribe a rule for other classes

(or types).

(5) No final rule prescribed by the Secretary under this subsection

may-

(A) permit any State regulation to become effective with respect to any covered product manufactured within three years

after such rule is published in the Federal Register or within

five years if the Secretary finds that such additional time is

necessary due to the substantial burdens of retooling, redesign,

or distribution needed to comply with the State regulation; or

(B) become effective with respect to a covered product manufactured before the earliest possible effective date specified in

section 325 for the initial amendment of the energy conservation

standard established in such section for the covered product;

except that such rule may become effective before such date if

the Secretary finds (and publishes such finding) that, in addition to the other requirements of this subsection the State has

established, by a preponderance of the evidence, that-

(i) an energy emergency condition exists within the State

which-

(1) imperils the health, safety, and welfare of its residents because of the inability of the State or utilities

within the State to provide adequate quantities of gas

or electric energy to its residents at less than prohibitive costs; and

(II) cannot be substantially alleviated by the importation of energy or the use of interconnection agreements; and

(ii) the State regulation is necessary to alleviate substantially such condition.

(6) In any case in which a State is issued a rule under paragraph

(1) with respect to a covered product and subsequently a Federal

energy conservation standard concerning such product is amended

ttion 3with the S

erson subject to such

may file a petition ecretary requesting the tSec etary to

withdraw the rule issued under paragraph (1) with respect to such

thshall r(1)c (petition

and (4), product in

accordanceswithState. requirements of paragraphs

except that the burden shall be on the petitioner to show by a preponderance of the evidence that the rule received by the State under

paragraph (1) should be withdrawn as a result of the amendment to

the Federal standard. If the Secretary determines that the petitioner

has shown that the rule issued by the State should be so withdrawn, the Secretary shall withdraw it.

(e) EXCEPTION FOR CERTAIN STATE PROCUREMENT STANDARDS.-

Any State regulation which sets forth procurement standards for a

State (or political subdivision thereof) shall not be superseded by the

provisions of this part if such standards are more stringent than. the

corresponding Federal energy conservation standards.

(f) L CEPTION FOR CERTAIN BUILDING CODE REQUIREMENTS.-(1)

A regulation or other requirement enacted or prescribed before January 8, 1987, that is contained in a State or local building code for

new construction concerning the energy efficiency or energy use of a

covered product is not superseded by this part until the effective

date of the energy conservation standard established in or prescribed under section 325 for such covered product.

(2) A regulation or other requirement, or revision thereof, enacted

or prescribed on or after January 8, 1987, that is contained in a

State or local building code for new construction concerning the

energy efficiency or energy use of a covered product is not superseded

by this part until the effective date of the energy conservation standard established in or prescribed under section 325 for such covered

product if the code does not require that the energy efficiency of

such covered product exceed-

(A) the applicable minimum efficiency requirement in a national voluntary consensus standard; or

(B) the minimum energy efficiency level in a regulation or

other requirement of the State meeting the requirements of subsection (b)(1) or (b)(5),

whichever is higher.

(3) Effective on the effective date of an energy conservation standard for a covered product established in or prescribed under section

325, a regulation or other requirement contained in a State or local

building code for new construction concerning the energy efficiency

or energy use of such covered product is not superseded by this part

if the code complies with all of the following requirements:

(A) The code permits a builder to meet an energy consumption

or conservation objective for a building by selecting items whose

combined energy efficiencies meet the objective.

(B) The code does not require that the covered product have

an energy efficiency exceeding the applicable energy conservation standard established in or prescribed under section 325,

except that the required efficiency may exceed such standard up

to the level required by a regulation of that State for which the

Secretary has issued a rule granting a waiver under sub-section

(d).

 EE-RM-PET-100 COMMENT 97
72

(C) The credit to the eosr g;' CC: su iii v'" Cons rl.'C'" i-) Gb ie: cc allowed by the code for installing covered products

having energy efficiencies exceeding such energy conservation

standard established in or prescribed under section 325 or the

efficiency level required in a State regulation referred to in sub. paragraph (B) is on a one-for-one equivalent energy use or equiv.

alent cost basis.

(D) If the code uses one or more baseline building desigy

against which all submitted building designs are to be evaluated and such baseline building designs contain a covered prod.

uct subject to an energy conservation standard established in or

prescribed under section 325, the baseline building designs are

based on the efficiency level for such covered product which

meets but does not exceed such standard or the efficiency level

required by a regulation of that State for which the Secretary

has issued a rule granting a waiver under subsection (d).

(E) If the code sets forth one or more optional combinations of

items which meet the energy consumption or conservation objee.

tive, for every combination which includes a covered product

the efficiency of which exceeds by more than 5 percent either

standard of level referred to in subparagraph (D), there also

shall be at least one combination which includes such covered

product the efficiency of which does not exceed such standard

or level by more than 5 percent, except that at least one combination shall include such covered product the efficiency of

which meets but does not exceed such standard.

(F) The energy consumption or conservation objective is specified in terms of an estimated total consumption of energy

(which may be calculated from energy loss- or gain-based codes)

utilizing an equivalent amount of energy (which may be specified in units of energy or its equivalent cost).

(G) The estimated energy use of any covered product permitted

or required in the code, or used in calculating the objective, is

determined using the applicable test procedures prescribed

under section 323, except that the State may permit the estimated energy use calculation to be adjusted to reflect the conditions

of the areas where the code is being applied if such adjustment

is based on the use of the applicable test procedures prescribed

under section 323 or other technically accurate documented procedure.

(4)(A) Subject to subparagraph (B), a State or local government is

not required to submit a petition to the Secretary in order to enforce

or apply its building code or to establish that the code meets the

conditions set forth in this subsection.

(B) If a building code requires the installation of covered products

with efficiencies exceeding both the applicable Federal standard established in or prescribed under section 325 and the applicable

standard of such State, if any, that has been granted a waiver

under subsection (d), such requirement of the building code shall

not be applicable unless the Secretary has granted a waiver for such

requirement under subsection (d).

(g) No WARRANTY. Any disclosure with respect to energy use,

energy efficiency, or estimated annual operating cost which is required to be made under the provisions of this part shall not create

73

^rn:PSS or implied warranty under Stale or Federal lau' that

., all ^..

such energy efficiency will be achieved or that such energy use or

estimated annual operating cost will not be exceeded under conditions of actual use.

AUTHORITY TO OBTAIN INFORMATION

Sec. 329. (a) IN GENERAL.-For purposes of carrying out this part

the Commission and the Secretary may each sign and issue subpenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and

may each administer oaths. Witnesses summoned under - the provisions of this section shall be paid the same fees and mileage as are

paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpena served , upon any persons

subject to this part, the Commission and the Secretary may each

seek an order from the district court of the United States for any

disc c in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to

appear and produce documents. Failure to obey any such order is

punishable by such court as a contempt thereof.

(b) CONFIDENTIALITY.-Any information submitted by any person

to the Secretary or the Commission under this part shall not be

considered energy information as defined by section 11(e)(1) of the

Energy Supply and Environmental Coordination Act of 1974 for

purposes of any verification examination authorized to be conducted by the Comptroller General under section 501 of this Act.

* * *

PROHIBITED ACTS

SEc. 332 . ( a) IN GENERAL. -It shall be unlawful-

(1) * * *

(5) for any manufacturer or private labeler to distribute in

commerce any new covered product which is not in conformity

with an applicable [energy efficiency standard prescribed

under] energy conservation standard established in or prescribed under this part.

(b) DEFINITION.-For purposes of this section, the term "new covered product" means a covered product the title of which has not

passed to a purchaser who buys such product for purposes other

than (1) reselling such product, or (2) leasing such product for a

period in excess of one year.

ENFORCEMENT

SEC. 333. (a) IN GENERAL.-Except as provided in subsection (c),

any person who knowingly violates any provision of section 332

shall be subject to a civil penalty of not more than $100 for each

violation. Such penalties shall be assessed by the Commission,

except that penalties for violations of section 332(a )(3) which relate

to requirements prescribed by the Secretary, violations of section

332(a)(4) which relate to requests of the Secretary under section

326(b)(2), or violations of section 332(a)(5) shall be asserted by the

 EE-RM-PET-100 COMMENT 97
I

74

Secretary . Civil penalties assessed under this part may be con-pro,

raised by the agency or officer authorized to assess the penalty,

taking into account the nature and degree of the violation and the

impact of the penalty upon a particular respondent. Each violation

of paragraph (1), (2), or (5) of section 332(a) shall constitute a sepa,

rate violation with respect to each covered product, and each day of

violation of section 332(a) (3) or (4) shall constitute a separate viola,

tion.

(b) DEFINITION.-As used in subsection (a), the term "knowingly"

means ( 1) the having of actual knowledge, or (2) the presumed

having of knowledge deemed to be possessed by a reasonable man

who acts in the circumstances, including knowledge obtainable

upon the exercise of due care.

[(c) It] (c) SPECIAL RULE. It shall be an unfair or deceptive act

or practice in or affecting commerce (within the meaning of section

5(a)(l) of the Federal Trade Commission Act) for any person to violate section 323(c), except to the extent that such violation is prohibited under the provisions of section 332(a)(1), in which case such

provisions shall apply.

[(d)(1)] (d) PROCEDURES FOR ASSESSING PENALTY.-(1) Before is.

suing an order assessing a civil penalty against any person under

this section, the Secretary shall provide to such person notice of

the proposed penalty. Such notice shall inform such person of his

opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of paragraph (3) (in lieu

of those of paragraph (2)) apply with respect to such assessment.

CITIZEN SUITS

SEC. 335. (a) Except as otherwise provided in subsection (b), any

person may commence a civil action against-

(1) any manufacturer or private labeler who is alleged to be

in violation of any provision of this part or any rule under this

part; [or]

(2) any Federal agency which has a responsibility under this

part where there is an alleged failure of such agency to perform any act or duty under this part which is not discretionary [. ]; or

(3) the Secretary in any case in which there is an alleged failure of the Secretary to comply with a nondiscretionary duty to

issue a proposed or final rule according to the schedules set

forth in section 325.

The United States district courts shall have jurisdiction, without

regard to the amount in controversy or the citizenship of the parties, to enforce such provision or rule, or order such Federal agency

to perform such act or duty, as the case may be. The courts shall

advance on the docket, and expedite the disposition of, all causes

filed therein pursuant to paragraph (3) of this subsection. If the

court finds that the Secretary has failed to comply with a deadline

established in section 325, the court shall have jurisdiction to order

appropriate relief, including relief that will ensure the Secretary's

compliance with future deadlines for the same covered product.

(b) LIMITATION.-No action may be commenced75

(1) under subsection (a)(1)-

(A) prior to 60 days after the date on which the plaintiff

has given notice of the violation (i) to the Secretary, (ii) to

the Commission, and (iii) to any alleged violator of such

provision or rule, or

(B) if the Commission has commenced and is diligently

prosecuting a civil action to require compliance with such

provision or rule, but, in any such action, any person may

intervene as a matter of right.

(2) under subsection (a)(2) prior to 60 days after the date on

which the plaintiff has given notice of such action to the Secretary and Commission.

Notice under this subsection shall be given in such manner as the

Commission shall prescribe by rule.

(c) RIGHT To INTERVENE.-In such action under this section, the

Secretary or the Commission (or both), if not a party, may intervene as a matter of right.

(d) AWARD OF COSTS OF LITIGATION.-The court, in issuing any

final order in any action brought pursuant to subsection (a) of this

section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

(e) PRESERVATION OF OTHER RELIEF.-Nothing in this section

shall restrict any right which any person (or class of persons) may

have under any statute or common law to seek enforcement of this

part or any rule thereunder, or to seek any other relief (including

relief against the Secretary or the Commission).

(f) COMPLIANCE IN GOOD FAITH.-For purposes of this section, if a

manufacturer or private labeler complied in good faith with a rule

under this part, then he shall not be deemed to have violated any

provision of this part by reason of the alleged invalidity of such

rule.

[ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW

[SEC. 336. (a) Rules under sections 323, 324, 325(a), 327(b), or 328

shall be prescribed in accordance with section 553 of title 5, United

States Code, except that-

[(1) interested persons shall be afforded an opportunity to

present written and oral data, views, and arguments with respect to any proposed rule, and

[(2) in the case of a rule under section 325(a), the Secretary

shall, by means of conferences or other informal procedures,

afford any interested person an opportunity to question-

[(A) other interested persons who have made oral presentations under paragraph (1), and

[(B) employees of the United States who have made

written or oral presentations,

with respect to disputed issues of material fact. Such opportunity shall be afforded to the extent the Secretary determines

that questioning pursuant to such procedures is likely to result

in a more timely and effective resolution of such issues.

 EE-RM-PET-100 COMMENT 97
76

A transcript shall be kept of any oral presentations made `Under

this subsection.

[(2) Subsections (c) and (d) of section 18 of the Federal Trade

Commission Act shall apply to rules under section 325 (other than

subsections (a)(1), (2), and (3)) to the same extent that such subsections apply to rules under section 18 (a)(1)(B) of such Act.

[(b)(1) Any person who will be adversely affected by a rule pre.

scribed under section 323 , 324, or 325 when it is effective may, at

any time prior to the sixtieth day after the date of such rule is pre.

scribed, file a petition with the United States court of appeals for

the circuit wherein such person resides or has his principal place of

business, for a judicial review thereof. A copy of the petition shall

be forthwith transmitted by the clerk of the court to the agency

which prescribed the rule. Such agency thereupon shall file in the

court the written submissions to, and transcript of, the proceedings

on which the rule was based as provided in section 2112 of title 28,

United States Code.

[(2) Upon the filing of the petition referred to in paragraph (1)

the court shall have jurisdiction to review the rule in accordance

with chapter 7 of title 5 , United States Code, and to grant appropri.

ate relief as provided in such chapter . No rule under section 323,

324, or 325 may be affirmed unless supported by substantial evidence.

[(3) The judgment of the court affirming or setting aside, in

whole or in part, any such rule shall be final, subject to review by

the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28, United States Code.

[(4) The remedies provided for in this subsection shall be in addition to, and not in substitution for, any other remedies provided

by law.

[(c)(1) Titles IV and V of the Department of Energy Organization Act (42 U.S.C. 7191 et seq.) shall not apply with respect to the

procedures under this part.

[(2) The procedures applicable under this part shall not-

[(A) be considered to be modified or affected by any other provision of law unless such other provision specifically amends this

part (or provisions of law cited herein), or

[(B) be considered to be superseded by any other provision of law

unless such other provision does so in specific terms, referring to

this part, and declaring that such provision supersedes, in whole or

in part, the procedures of this part.]

ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW

SEC. 336. (a)(1) In addition to the requirements of section 553 of

title 5, United States Code, rules prescribed under sections 323, 324,

325, 327, or 328 of this part shall afford interested persons an opportunity to present written and oral data, views, and arguments with

respect to any proposed rule.

(2) In the case of a rule prescribed under section 325, the Secretary

shall, by means of conferences or other informal procedures, afford

any interested person an opportunity to question-

(A) other interested persons who have made oral presentations; and

77

(B employees of the United States who have made written. or

oral presentations with respect to disputed issues of material

fact.

Such opportunity shall be afforded to the extent the Secretary deter-

,nines that questioning pursuant to such procedures is likely to

result in a more timely and effective resolution of such issues.

(3) A transcript shall be kept of any oral presentations made

under this subsection.

(b)(1) Any person who will be adversely affected by a rule prescribed under sections 323, 324, or 325 may, at any time within 60

days after the date on which such rule is prescribed, file a petition

with the United States court of appeals for the circuit in which

such person resides or has his principal place of business, for judicial review of such rule. A copy of the petition shall be transmitted

b

y the clerk of the court to the agency which prescribed the rule.

Such agency shall file in the court the written submissions to, and

transcript of, the proceedings on which the rule was based, as provided in section 2112 of title 28, United States Code.

(2) Upon the filing of the petition referred to in paragraph (1), the

court shall have jurisdiction to review the rule in accordance with

chapter 7 of title 5, United States Code, and to grant appropriate

relief as provided in such chapter. No rule under sections 323, 324,

or 325 may be affirmed unless supported by substantial evidence.

(3) The judgment of the court affirming or setting aside, in whole

or in part, any such rule shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as

privided in section 1254 of title 28, United States Code.

(4) The remedies provided for in this subsection shall be in addition to, and not in substitution for, any other remedies provided by

law.

(5) The procedures applicable under this part shall not-

(A) be considered to be modified or affected by any other provision of law unless such other provision specifically amends

this part (or provisions of law cited herein); or

(B) be considered to be superseded by any other provision of

law unless such other provision does so in specific terms by referring to this part and declaring that such provision supersedes, in whole or in part, the procedures of this part.

(c) Jurisdiction is vested in the Federal district courts of the

United States over actions brought by-

(1) any adversely affected person to determine whether a State

or local government is complying with the requirements of this

part; and

(2) any person who files a petition under section 325(k) which

is denied by the Secretary.

ANNUAL REPORT

SEC. 338. The Secretary shall report to the Congress and the

President either (1) as part of his annual report, or (2) in a separate

report submitted annually, on the progress of the program undertaken pursuant to this part and on the energy savings impact of

this part. Each such report shall specify the actions undertaken by

 EE-RM-PET-100 COMMENT 97
78

the Secretary in carrying out this part during the period covered

by such report, and those actions which the Secretary was required

to take under this part during such period but which were not

taken, together with the reasons therefor. Nothing in this section provides a defense or justification for a failure by the Secretary

to comply with a nondiscretionary duty as provided for in this part

AUTHORIZATION OF APPROPRIATIONS

SEC. 339. (a) AUTHORIZATIONS FOR THE SECRETARY. -There are

authorized to be appropriated to the Secretary not more than the

folowing amounts to carry out his responsibilities under this part--

(b) AUTHORIZATIONS FOR THE COMMISSION.-There are authorized

to be appropriated to the Commission not more than the following

amounts to carry out its responsibilities under this part- (1) * * *

* * *

(c) OTHER AUTHORIZATIONS.-There are authorized to be appropriated to the Secretary to be allocated not more than the follow.

ing amounts-

,

ports are growing in some appliance categories. According to this

I report, "Increasing imports, more than weather or consumer pref1 erence for central air conditioning systems, caused 1986 domestic

DISSENTING VIEWS

I oppose the National Appliance Energy Conservation Act of

1987. My main reason for opposing the bill is that H.R. 87 short

shrifts American consumers. This bill, which has not been the subject of a single day of hearings in this Congress and had only one

day of hearings in the 99th Congress, imposes $14.2 billion in

higher appliance costs on American consumers. It does not serve

the public interest to rush to judgment on this vital consumer legislation.

Mandatory appliance efficiency standards will deprive American

consumers of the fundamental right of choice by forcing them to

choose among a shrinking selection of increasingly expensive appliances. The cost of products covered by this legislation will rise by

$1.4 billion per year and entire categories of appliances will be

banned from the marketplace. For example, 90 percent of heat

pumps, 90 percent of central air conditioners, 90 percent of refrigerators and freezers, and 70 percent of the oil and gas furnaces

now on the market will not meet the efficiency standards in H.R.

87. These products will be banned from the marketplace.

The "inefficient" products banned from the marketplace will be

the least expensive products. The committee has issued legislation

to divert the income of the elderly and poor toward conservation

programs. I support energy conservation, but conservation should

not be imposed on the American people irrespective of cost. If consumers want more efficient air conditioners and refrigerators, they

should be permitted to purchase them. There are products in the

market today that exceed the standards in H.R. 87. Consumers

have the option to purchase more efficient appliances if they want

them. However, those consumers who want to save their money in

the near term should be free to do so.

i am sure U.S. manufacturers will be able to meet the .ambitious

standards in H.R. 87. However, the cost to American consumers of

meeting these standards will be burdensome. In point of fact, the

estimate that the appliance costs will rise by $1.4 billion per year

comes from a group that actually supported the legislation and

may be understated.

Proponents of H.R. 87 have minimized the trade impact of this

legislation. They have argued that trade in appliances covered

under H.R. 87 is minimal, and foreign penetration of domestic markets is insignificant. However, according to the Commerce Department, there is substantial trade in these appliances and the legislation will have a serious negative impact on the American trade deficit. A recent report "1987 U.S. Industrial Outlook," indicates im-

(79)

 EE-RM-PET-100 COMMENT 97
80

shipments of room air conditioners to fall more than 15 percent

from their 1985 level of 3 million units." (Outlook, pp. 22-9).

H.R. 87 promises to aggravate the looming trade deficit in appli.

ances. I researched recent trends in appliance exports and imports

and found a serious problem. Exports of six major categories of ap.

pliances has declined by 8 percent since 1984 and imports of five

major categories of appliances rose 46 percent over the same

period. We face a serious problem in appliance trade and H.R. 87

will only lead to a further deterioration of the American position.

In a year when Congress is grappling with solutions to our massive trade deficit, I question the propriety of encouraging more appliance imports. A 15 percent decrease in domestic market share is

a serious trade problem, one that is overlooked in H.R . 87. American manufacturers export refrigeration equipment and air conditioners to 130 countries. Mandatory efficiency standards raise the

costs of American appliances, and is certain to make them less

competitive in foreign markets where cost is a more important consideration than energy efficiency. I regret that the first major piece

of legislation considered by the committee in 1987 will aggravate

our trade problems.

One of the underlying assumptions in H.R. 87 is the mistaken

belief that conservation can only be achieved by government fiat.

However, our experience over the past ten years demonstrates that

we do not need government standards in order to improve the

energy efficiency of appliances. In recent years, the energy efficiency of refrigerators increased 48 percent and the efficiency of central air conditioners increased 27 percent. Moreover, these substantial improvements came in the absence of mandatory appliance

standards. There are excellent laws on the books that require efficiency labels, giving the consumer the information necessary to

make product choices. Experience shows that mandatory efficiency

labels have successfully encouraged consumers to purchase efficient products. At the same time, labels have allowed consumers

the freedom of choice. I do not share the belief that we "must protect the consumer from himself."

Another impetus of H.R. 87 is a projection that the legislation

will lead to $28 billion in economic benefits by the year 2000. This

estimate is fundamentally flawed and should be dramatically reduced. For one thing, the report uses present day dollars. Obviously, a 1987 dollar in the year 2000 will not have the same value it

has in 1987. In addition, the report assumes there will be no

change in use patterns after the consumer has been forced to purchase more efficient appliances. Lower operating costs will tend to

result in higher usage and distinct changes in consumer behavior.

The report also is based on unreasonable discount rates to exaggerate the benefits of H.R. 87. Recognizing these factors, the projected

benefits of H.R. 87 shrink to somewhere in the range between $0

and $4 billion.

The establishment of national appliance efficiency standards also

ignores sharp climatic variations in different regions of the country. To insist that air conditioners in Minnesota and Indiana have

the same energy-efficiency ratings as air conditioners in Mississippi

and Texas ignores the fact that an air conditioner may be operated

four or five times as much in warmer climates. For example, a

81

coripa=-ism. of hours of air conditioner operation in different cities

demonstrates that annual usage in Detroit is 265 hours, while

usage. in New Orleans is 1,370 hours. Annual heating hours in

these two cities is 2,533 hours and 1,099 hours, respectively . H.R. 87

retakes no allowance for variation.

This lack of allowance for climatic variations imposes costs on

the consumer. While consumers in New Orleans may be able to recapture the higher cost of their air conditioner through lower operating costs over a period of years, they will not be able to recapture

the cost of their expensive heat pump. At the same time, Detroit

consumers will not be able to recapture the higher cost of an air

conditioner designed for the climate in New Orleans.

One of the "

selling points" of H.R. 87 is "energy security". Proponents argue mandatory energy efficiency standards will reduce

energy consumption. However, this legislation approaches energy

security from exactly the wrong perspective. Instead of ordering

the American people to use less energy, we should remove the governn ent restrictions on domestic energy production. The removal

of natural gas controls, repeal of the Fuel Use Act , and opening up

our public lands in the West, Alaska, and Outer Continental Shelf

[OCS] will go much further towards improving our energy security

than government appliance efficiency standards.

It is somewhat ironic that this is the first piece of energy legislation considered by Congress since the collapse in world oil prices in

January 1986. In the past fourteen months, Congress has done

nothing about the most serious energy threat confronting our

nation since 1979. Over this period, the United States has lost

800,000 barrels per day of domestic production, or 9 percent of total

domestic production. At the same time, oil consumption rose by

over 1 million barrels per day and oil imports rose by 22 percent.

Congress has done nothing about this serious problem.

At best, H.R. 87 will reduce domestic energy consumption by 1

percent to 2 percent over a ten-year period. However, the rising depenuh-ncy on foreign oil imports will erase any benefit from the legislation. In the end, we know government appliance standards will

not be the foundation of our energy security. Energy security is

best achieved through maintenance of American energy production. At the present time, the best way to maintain U.S. oil production is through an oil import fee or tax incentives for domestic exploration and development.

On November 1, 1986, President Reagan vetoed H.R. 5465 on the

grounds that the legislation intruded unduly into the marketplace,

limited the freedom of choice available to consumers, unintentionally harmed consumers, especially low income and elderly consumers, abridged traditional state responsibilities and perogatives, and

mandated a long series of complicated future rulemakings. Only

one of these objections has been addressed, the future rulemakings.

An amendment authorized by the ranking Republican member of

the Energy and Power Subcommittee and adopted by the subcommittee eliminated mandatory rulemakings in favor of discretionary

rulemakings after the mandatory ruiemakings . While this amendment is a distinct improvement to H.R. 87, most of the objectionable provisions cited by President Reagan in his veto message were

not addressed by the committee and remain in the legislation.

 EE-RM-PET-100 COMMENT 97
82

The committee has the opportunity to come up with national ap,

pliance conservation standards that were reasonable. Instead, we

adopted legislation that, embraced appliance efficiency standards

that were totally unreasonable . According to the Senate report or,

S. 83, the companion bill to H.R. 87, "The standards in most cases

are as strong as, or stronger than, any State standards currently in

effect." I can appreciate the fact that litigation over the 1978 stat,

ute has established the requirement for national appliance stand,

ards. However, it is not apparent to me they must be measured by

the excesses of the few states that currently have standards. Those

states that do not have standards will not only be forced to accept

standards, but the strictest possible standards. H.R. 87 locks in

these unreasonable standards, since the bill has no provision to

lower standards if they prove unrealistic or burdensome. In fact,

87 specifically forbids any lowering of appliance standards,

Since prices have no place to go but up , the legislation will have an

inflationary impact.

The legislation also establishes conditional cost effectiveness

tests for the implementation of appliance standards. A standard is

deemed "economically justified" if the additional cost to consumers

of appliances that comply with the standards is less than three

times the value of the energy savings during the first year of use.

However, a determination that a product does not meet this test

cannot be taken into consideration when the Department of Energy

makes an evaluation of economic justification . It is virtually impos.

sible to fail the determination of economic justification under this

criterion.

In effect, H.R. 87 creates Corporate Average Fuel Economy

[CAFE] standards for appliances instead of automobiles. These

CAFE standards have proven to be unworkable for automobiles

and there is no reason to expect they will work any better for refrigerators, heat pumps, or central air conditioning units.

JOE BARTON.

O

 EE-RM-PET-100 COMMENT 97
Case Name: CALIFORNIA ENERGY COMMISSION, Petitioner, v. UNITED

STATES DEPARTMENT OF ENERGY, and SAMUEL W.

BODMAN, Secretary of Energy, Respondents

Case No .: 07-71576

Court: United States Court of Appeals for the Ninth Circuit

PROOF OF SERVICE

I am a citizen of the United States, over the age of 18 years, and not a party to or

interested in the within entitled cause. My business address is 1516 Ninth Street,

Sacramento, California 95814. On September 24, 2007, I served the following:

PETITIONER'S OPENING BRIEF WITH ADDE NDUM

AND

PETITIONER'S EXCERPTS OF RECO

by placing a true copy thereof enclosed in a sealed envelope with postage thereon

fully prepaid, in the United States Post Office mail at Sacramento, California,

addressed as follows:

H. Thomas Byron III Charles A. Samuels

U.S. Department of Justice General Counsel, Association of

Civil Division, Appellate Staff Home Appliance Manufacturers

950 Pennsylvania Avenue, N.W., RM 7260 MINTZ, LEVIN, COHN, FERRIS,

Washington, D.C. 20530-0001 GLOVSKY AND POPEO, P.C.

701 Pennsylvania Avenue, Suite 900

Washington, D.C. 20004

Samuel W. Bodman Association of Home Appliance

Secretary of Energy Manufacturers

United States Department of Energy David Calabrese, Vice President

1000 Independence Avenue, SW Government Relations

Washington, DC 20585 1111 191h Street, NW Suite 402

Washington, DC 20036

 EE-RM-PET-100 COMMENT 97
Ms. Brenda Edwards-Jones

U.S. Department of Energy, Building

Technologies Program

Mailstop EE-2J, Room 1J-018

1000 Independence Avenue, SW

Washington, DC 20585-0121

Mr. Bryan Berringer

United States Department of Energy

Office of Energy Efficiency and Renewable

Energy

Building Technologies Program, EE-2J

1000 Independence Avenue, SW

Washington, DC 20585-0121

John Mizroch

Principal Deputy Assistant

Office of Energy Efficiency and

Renewable Energy

United States Department of Energy

1000 Independence Avenue, SW

Washington, DC 20585-0121

Nathan R. Hambler, Esq.

MINTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

9255 Towne Centre Drive, Suite 600

San Diego, CA 92121

General Counsel, EPA

U.S. Department of Energy

Office of the District Counsel

1000 Independence Avenue, S.W.

Washington , DC 20585

Mr. Thomas DePriest

United States Department of Energy

Office of General Counsel, GC-72

1000 Independence Avenue, SW

Washington, DC 20585-0121

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed on September 24, 2007, at Sacramento,

California.

 EE-RM-PET-100 COMMENT 97
Edwards-Jones, Brenda

From : Chester Hong [Chong@energy.state.ca.us]

Sent: Wednesday, October 10, 2007 5:27 PM

To: Edwards-Jones, Brenda

Cc: Jonathan Blees

Subject: Re: Brief & Excerpts in CEC v. DOE, 9th Circuit No. 07-71576

Attachments : Petitioners Excerpts of Record.pdf

Hello Ms. Jones,

At the request of Jonathan Blees, Assistant Chief Counsel, of the California Energy Commission, I have attached

the scanned version of our "Petitioner's Excerpts of Record". Please contact me if you have any problems

opening the attachment (916) 654-3951.

Thank you,

Chester Hong , Legal Secretary to

Jonathan Blees, Assistant Chief Counsel

California Energy Commission

1516 9th Street, MS-14

Sacramento, Calif. 95814

>>> Jonathan Blees 10/9/2007 10:44 AM >>>

Hi Brenda,

Here is the Brief. By copy of this message I am asking my secretary, Chester Hong, to send an electronic copy of the

Excerpts of Record to you. (Chester, if it's not already in one piece, the easiest way might be to go back to the DOE

website, download the individual items, and integrate all of them into one document.)

Jonathan Blees

11/16/2007

 EE-RM-PET-100 COMMENT 97
No. 07-71576

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, Petitioner

V.

UNITED STATES DEPARTMENT OF ENERGY, et al., Respondents

APPEAL OF ADMINISTRATIVE ACTION

PETITIONER'S

EXCERPTS OF CO

William M. Chamberlain, Chief Counsel

Jonathan Blees, Assistant Chief Counsel

William Staack, Senior Staff Counsel

Dennis L. Beck, Jr., Senior Staff Counsel

Attorneys for Petitioner

CALIFORNIA ENERGY COMMISSION

1516 Ninth Street, Mail Station 14

Sacramento, California 95814-5512

(916) 654-3953 Fax (916) 654-3843

JBleesC energy.state.ca.us

 EE-RM-PET-100 COMMENT 97
TALE OF CONTENTS

Page

CALIFORNIA ENERGY COMMISSION'S DOCUMENTS

California 's Request for Reconsideration, Dated Jan. 29, 2007 ............................... 1

Rebuttal Comments Of The California Energy Commission,

Dated May 15, 2007 ................................................................................................ 32

Comments on: United States Department of Energy

Docket Number EE-EM-PET-100 : Petition to Exempt from

Preemption California 's Water Conservation Standards for Residential

Clothes Washers, Dated March 27, 2007 ... ............................................................. 51

Letter to Mr. Douglas L. Faulkner, Acting Assistant Secretary, of the

United States Department of Energy, From Jonathan Blees, Assistant

Chief Counsel of the California Energy Commission , Regarding : Petition

for Exempt from Preemption , Dated Dec. 5 , 2005 . ................................................ 53

Petition to Exempt from Preemption California's Water Efficiency

Standards for Residential Clothes Washers , dated September 13, 2005 ................ 56

DEPARTMENT OF ENERGY'S DOCUMENTS

Certified Index to the Administrative Record, Dated Sept. 5, 2007 . .................... 111

Federal Resister Vol. 71 No. 249, Dated: Dec. 28, 2006

Energy Efficiency Program for Consumer Products............................................. 139

Federal Register Vol. 71 No. 118 , Dated June 20, 2006

Energy Efficiency Program for Consumer Products............................................. 151

Letter to Jonathan Blees, Assistant Chief Counsel of the California Energy

Commission, From Richard F. Moorer, Technology Development Energy

Efficiency and Renewable Energy, Regarding : Comment period on the U.S.

Department of Energy 's notice of receipt, Dated April 14, 2006 . ........................ 153

1

 EE-RM-PET-100 COMMENT 97
TABLE OF CONTENTS

Page

Federal Register Vol. 71, No. 24 February 6, 2006

Energy Efficiency Program for Consumer Products............................................. 154

Letter to Jonathan Blees, Assistant Chief Counsel of the California Energy

Commission, From Douglas L. Faulkner, Acting Assistant Secretary,

Energy Efficiency and Renewable Energy, Regarding: Department of

Energy has received the California Energy Commission's Petition for

Exemption, Dated Dec. 23, 2005 .......................................................................... 158

Letter to Jonathan Blees, Assistant Chief Counsel of the California Energy

Commission, From Douglas L. Faulkner, Acting Assistant Secretary,

Energy Efficiency and Renewable Energy, Regarding: Department of

Energy has received the California Energy Commission's Petition for

Exemption, Dated Nov. 18, 2005 .......................................................................... 159

ASSOCIATION OF HOME APPLIANCE MANUFACTURERS

DOCUMENTS

Association of Home Appliance Manufacturers Response to The California

Energy Commission's Request for Reconsideration of the Denial of the

petition for Exemption from Preemption for Water Conservation Standards

for Residential Clotheswashers, Dated Feb. 16, 2007 .......................................... 160

Response of the Association of Home Appliance Manufacturers To the

California Energy Commission's Petition for exemption from Federal

Preemption of California's Water and Energy Conservation Standards for

Residential Clothes Washers, Dated April 7, 2006 ............................................... 164

COMMENTS

Letter from: California Urban Water Conservation Council, in Support of the

California Energy Commission's Petition to Exempt from Preemption .............. 219

2

 EE-RM-PET-100 COMMENT 97
TALE OF CONTENTS

Page

Letter from: City of Downey, in Support of the California Energy

Commission's Petition to Exempt from Preemption, Dated April 7, 2006 .......... 224

Letter from: Olivenhain Municipal District, in Support of the California

Energy Commission 's Petition to Exempt from Preemption................................ 227

Letter from: Alameda County Water District, in Support of the California

Energy Commission's Petition to Exempt from Preemption,

Dated April 7, 2006 ............................................................................................... 230

Letter from: City of Napa Water Division, in Support of the California

Energy Commission's Petition to Exempt from Preemption ................................ 232

Letter from: California Water Association, in Support of the California

Energy Commission's Petition to Exempt from Preemption,

Dated April 7, 2006 ............................................................................................... 235

Pacific Gas and Electric Company's , Comments on Preemption

Exemption Petition Docket Number EE-RM-PET- 100 United States

Department of Energy, Dated April 6, 2006 ................. 237 ........................................

Letter from: Irvine Ranch Water District, in. Support of the California

Energy Commission's Petition to Exempt from Preemption,

Dated April 6, 2006 . .............................................................................................. 247

Letter from: Department of Water and Power the City of Los Angeles, in

Support of the California Energy Commission's Petition to Exempt from

Preemption, Dated April 6, 2006 .......................................................................... 249

Letter from: Crescenta Valley Water District, in Support of the California

Energy Commission's Petition to Exempt from Preemption,

Dated April 6, 2006 ............................................................................................... 251

Letter from: Association of California Water Agencies, in Support of the

California Energy Commission's Petition to Exempt from Preemption,

Dated April 4, 2006 ............................................................................................... 253

3

 EE-RM-PET-100 COMMENT 97
TABLE OF CONTENTS

Page

Letter from: City of Roseville, in Support of the California Energy

Commission's Petition to Exempt from Preemption, Dated April 3, 2006 .......... 256

Letter from: West Basin Municipal Water District, in Support of the

California Energy Commission's Petition to Exempt from Preemption,

Dated March 31, 2006 ........................................................................................... 258

Letter from: Cucamonga Valley Water District, in Support of the California

Energy Commission's Petition to Exempt from Preemption,

Dated March 30, 2006 ........................................................................................... 260

Letter from: North Marin Water District, in Support of the California Energy

Commission's Petition to Exempt from Preemption, Dated March 28, 2006 ...... 263

Letter from: California Municipal Utilities Association, in Support of the

California Energy Commission's Petition to Exempt from Preemption,

Dated March 28, 2006 ........................................................................................... 265

Letter from: Three Valleys Municipal Water District, in Support of the

California Energy Commission's Petition to Exempt from Preemption,

Dated March 28, 2006 ........................................................................................... 267

Letter from: Santa Fe Irrigation District, in Support of the California Energy

Commission's Petition to Exempt from Preemption, Dated March 21, 2006 ...... 269

Letter from: Foothill Municipal Water District, in Support of the California

Energy Commission 's Petition to Exempt from Preemption,

Dated March 21, 2006 . ........................ I 271

MISCELLANEOUS

California Water Plan ........................................................................................... 273

4

 EE-RM-PET-100 COMMENT 97
TALE OF CONTENTS

Page

E-mail from Mr. Christopher Calamita, Attorney-Advisor, Office of

General Counsel, Fossil Energy and Energy Efficiency, U.S. Department of

Energy, To Jonathan Blees, Assistant Chief Council, of the California

Energy Commission Regarding: RCW Petition Request for Reconsideration,

Dated March 1, 2007 ............................................................................................. 304

Letter from: Gas Appliance Manufacturers Association Inc. (GAMA) in

Response to the California Energy Commission's Petition for exemption

from Federal Preemption of California's Water and Energy Conservation

Standards for Residential Clothes Washers,

Dated April 6, 2006 ............................................................................................... 305

Letter from: San Diego County Water Authority in Response to the

California Energy Commission 's Petition for Exempt from Federal

Preemption California's Water and Energy Conservation Standards for

Residential Clothes Washers,

Dated April 5, 2006 ..... .......................................................................................... 308

Letter from: City of Yreka in Response to the California Energy

Commission's Petition for Exempt from Federal Preemption California's

Water and Energy Conservation Standards for Residential Clothes Washers,

Dated March 29, 2006 ........................................................................................... 315

Letter from: City of Del Mar in Response to the California Energy

Commission's Petition for Exempt from Federal Preemption California's

Water and Energy Conservation Standards for Residential Clothes Washers,

Dated March 21, 2006 ...............................:........................................................... 317

5

 EE-RM-PET-100 COMMENT 97
California Energy Commission

 EE-RM-PET-100 COMMENT 97
STATE OF CALIFORNIA - THE RESOURCES AGENCY

ALIFORNIA ENERGY COMMISSION

1518 NINTH STREET

SACRAMENTO. CA 95814.5512

January 29, 2007

Ms. Brenda Edwards-Jones

U.S. Department of Energy, Building Technologies Program

M.ail.stop EE--2J, Room 1 J-018

1000 Independence Avenue, SW

Washington, DC 20585-0121 .

Ai7NOLD SCHWARZENEGGER Governor

California Energy Commission Petition for

Exemption from Federal Preemption of

California's Water Conservation Standards for Residential Clothes Washers

DOE Docket Number EE--PET-1.00

By Courier Hand-Delivery, First-Class Mail, and E-Mail

Dear Ms. Edwards-Jones,

I enclose the original and three copies of California's Request for

Reconsideration. Please return one file-stamped copy to the courier, and another

copy by first-class mail in the enclosed stamped, self-addressed envelope.

Thank you for your assistance.

Sincerely,

Jonathan Blees

Assistant Chief Counsel

cc: Cal.ifomia.Petition@ee.doe.gov

Bryan.Berrin.ger ee.doe.gov

Francin.e.Pinto@hq.doe.gov

Christopher..Cal arnita@hq.doe.gov

Micbael.Mc('abc@ec.doe.gov

CEC Appliance Group (via e-mail)

0000001

 EE-RM-PET-100 COMMENT 97
UNITED STATES DEPARTMENT OF ENERGY

California Energy Commission Petition for

Exemption from Federal Preemption of

California's Water Conservation Standards for Residential Clothes Washers

DOE Docket Number EE-RIB-PET-100

CALIFORNIA'S REQUEST FOR RECONSIDERATION

Ca ^ ornia Energy Co ssion

,January 29,2007

0000002

 EE-RM-PET-100 COMMENT 97
UNITED STATES DEPARTMENT OF ENERGY

California Energy Commission Petition for

Exemption from Federal Preemption of

California's Water Conservation Standards for Residential Clothes Washers

DOE Docket Number EE-RM-PET-1 00

CALIFORN IA9S REQUEST FOR RECONSIDERATION

California Energy Commission

January 29, 2007

0000003

 EE-RM-PET-100 COMMENT 97
Table of Contents

Pa" e

Preliminary Statement ...................................................................................... 1

Introduction and Summary ........................................................................................ 2

1. DOE Erred in Denying the Waiverr .................................................................. 3

A. DOE erred in concluding that it could not grant the waiver because

of EPCA's three-year effective-date rule ............................................. 3

B. DOE erred in concluding that California did not show that the

standards are preferable to alternatives ................................................. 4

1. Cost-effectiveness analysis ......................................................... 5

2. Comparing the California standards to alternatives ................... 9

C. DOE erred in finding that the California standards would cause the

elimination of top-loading washers and in relying on that finding

when denying the waiver .................................................................... 13

1. Elimination of top-loaders .........................................................14

2. Denial of the waiverr ................................................................. 14

II. The California Standards Are "Needed" to Meet Unusual and Compelling

State and Local Water and Energy Interests, Which Are Different in Both

"Nature" and "Magnitude" from Those Prevailing Generally in the U.S. ... 16

A. DOE erred in concluding that California 's water and energy interests

are not "different in nature" from those prevailing generally in

the U.S .................................................................................................16

B. The California Standards are "needed." .............................................. 19

Ill. The Preponderance of the Evidence Demonstrates That the California

Standards Will Not Significantly Burden the Clothes Washer Industry

on a National Basis ........................................................................................ 20

i oOO0004

 EE-RM-PET-100 COMMENT 97
IV. If a Waiver Petition Is Granted, DOE Must Immediately Adopt a Rule

Specifying the Effective Date of the State Standards . without Conducting

Another Rulemaking ..................................................................................... `? 1

Conclusion and Options for DOE Action ................................................................ 23

ii 0000005

 EE-RM-PET-100 COMMENT 97
Preliminary Statement

[EPCA] is .. designed to ensure that States are able to respond with

their own appliance regulations to substantial and unusual ... problems.

such as high ... prices ... or adverse environmental or health and safety

conditions that can be alleviated by . . . conservation in appliances.

Congress anticipates that States that have such . . . problems, and that

have met the burden of proof set forth in Section [6297(d)], will be

granted waivers [from preemption].

H.R. Rep. No. 100-11, at 24.

It is undeniable that California faces special, urgent, and important water and

energy challenges. Overcoming these imposing challenges requires the immediate,

combined, cooperative effort of government agencies at all levels, as well as the

private sector, working together towards a common goal.

In this country, our individual states have been accurately called the

laboratories of democracy. Our society depends on individual states to be leaders and

innovators in addressing their own needs, rather than relying solely upon the Federal

government.

California has always been a leader and innovator on environmental and

efficiency issues because California has historically faced some of the greatest

challenges in those areas.' California went to considerable effort over considerable

time to develop its water efficiency standards for residential clothes washers - which

will also save considerable amounts of energy - to specifically tailor them to

California's particular needs.

In this era of dangerous and precarious energy dependence and dwindling

water supplies, such specialized state efficiency standards matter. They drive

innovation and efficiency, and those benefits inevitably flow to the nation as a whole.

Rather than leading to a proliferation of standards, such state innovation typically

leads to improved national standards based on the best and most effective state

For example, last year the Governor of California championed limits on greenhouse

gas emissions in the state of California and important new legislation was enacted.

Several months later, ten leading U. S. corporations, including General Electric,

Alcoa, DuPont, and California's Pacific Gas and Electric, launched a nationwide

coalition with four environmental groups to push for mandatory federal emissions

controls on greenhouse gases.

1 0000006

 EE-RM-PET-100 COMMENT 97
standards. The type of state innovation represented by the California clothes washer

standards is a key element in our nation's eventual achievement of energy

independence. Conversely. a failure to allow California to implement its standards

may deter other states from considering efficiency issues, and that could end up being

a key element in the eventual failure of U.S. policy.

We cannot afford to fail. It is in this context that California respectfully and

urgently requests that DOE reconsider its denial of the State's waiver petition.

Introduction and Summary

DOE denied California's Petition on December 28, 2006. 71 Fed. Reg.

78157 (Dec. 28, 2006). This Request for Reconsideration demonstrates that the

denial was based on errors of law and fact that are found in the record of the

proceedings. See 10 C.F.R. § 430.48(b).

In addition, in order to provide a complete discussion of the denial, and to

ensure that we have exhausted all administrative remedies, we also address two

matters on which DOE made findings but which were not relied upon by DOE as

reasons for the denial: (1) DOE's erroneous finding that California's water and

energy interests are not different in "nature" from those in the U.S. generally, and (2)

DOE's correct finding that waiver opponents failed to submit evidence demonstrating

that there would be an adverse impact on the appliance industry from the California

standards (that is so; more important, the record affirmatively shows that there will be

no significant impacts). We also show that the California Standards are "needed" to

meet the State's water and energy interests, a matter not addressed by DOE. Finally,

we address DOE's erroneous notion that the granting of a waiver petition requires

only that DOE begin a follow-on rulemaking proceeding to consider whether the state

standard should go into effect. Actually, granting a waiver means that DOE has

established a rule allowing the state standard to take effect upon a specified date.

We respectfully request that DOE reconsider the denial, grant the Petition, and

immediately adopt a rule allowing the California Standards to go into effect.

We also request that DOE recognize that California has requested a waiver of

preemption for four separate standards: (1) an 8.5 WF standard for front-loading

Residential Clothes Washers (RCWs), (2) an 8.5 WF standard for top-loading RCWs,

(3) a 6.0 WF standard for front-loading RCWs), and (4) a 6.0 WF standard for toploading- RCWs. Cal. Code Regs. tit. 20, § 1605.2(p)(1). Throughout its decision,

DOE states that it is denying "the petition" rather than addressing specifically the

2 OOOOoo'7

 EE-RM-PET-100 COMMENT 97
different standards that California has adopted. Yet most of DOE's rationales for

denying "the petition" do not apply to all of the California standards. Thus even if

DOE does not, upon reconsideration, grant "the petition" in its entirety. DOE should

clarify whether it will grant a waiver for any of the four- California Standards.

DOE Erred in Denying the Waiver.

A. DOE erred in concluding that it could not grant the waiver, because

of EPCA's three-year effective-date rule.

EPCA establishes a three-year delay between the date of DOE's action

granting a waiver and the date on which a state standard takes effect pursuant to the

waiver. (The delay is five years if DOE makes certain findings, which were not made

here.) 42 U.S.C. § 6297(d)(5)(A). DOE erroneously states that this provision

prevents granting of the waiver, apparently on the ground that DOE's grant of a

waiver, had it occurred, would have been in 2006, and one section of California's

appliance regulations indicates that the 8.5 WF Standards were nominally designated

as taking effect on January 1, 2007. See 71 Fed. Reg. at 78160.

Each California appliance efficiency standard is set forth with a nominal

effective date, as are the four RCW Standards at issue here. That is necessary in

order to put all stakeholders on notice as to when state law would provide that

enforcement will begin. But the State recognizes that certain standards, such as the

RCW Standards, require waivers from federal preemption before they take effect, and

therefore the regulations also provide that such standards take effect only upon the

effective date of a DOE waiver (or on the date when preemption is repealed, if that

were to occur). Cal. Code Regs. tit. 20, § 1605(b). Therefore, even though the 8.5

WF standards are labeled with a nominal effective date of 2007, their real effective

date is the effective date of a waiver - three (or five) years after the granting of the

waiver. 42 U.S.C. § 6297(d)(5)(A). Therefore, DOE's belief that it could not grant a

waiver for the "2007" 8.5 WF Standards because they would "take effect" less than

three years after DOE acted on December 28, 2006, is wrong. (Obviously, DOE's

concern, expressed in late 2006, is irrelevant to the 6.0 WF Standards, which are

nominally scheduled to take effect on January 1, 2010.)

DOE not only overlooked the California law explicitly providing for later

effectiveness for standards that need a waiver, but also mis-read EPCA. The 3-year

effective date provision governs when DOE's rule approving a waiver goes into

effect; contrary to DOE's interpretation, it has no application to any "effective date"

that might be assigned by the state. 42 U.S.C. § 6297(d)(5)(A) ("No final rule

3 0000008

 EE-RM-PET-100 COMMENT 97
prescribed by [DOE] ... may permit any State regulation to become effective .. .

within three years after such rule is published"). As a result, whatever the state

effective date" might be is irrelevant to DOE's legal authority to grant a waiver.

DOE's interpretation erroneously assumes that Congress intended to put states

in an impossible situation - that is, that a state, when adopting a standard and

assigning a nominal "effective date," would have to guess precisely when DOE is

likely to grant the waiver, which determines the effective date when the standard can

actually be enforced. Any doubt about the impossibility of this task vanishes when

one realizes that EPCA provides several possible effective dates for a waiver: the

effective date is constrained not only by (1) the date on which DOE acts (after which

the waiver can become effective either in the normal three years, or five years if DOE

finds that such a period is necessary for manufacturers to comply) but also potentially

by (2) the effective date of a federal standard for the appliance if DOE adopts one

after the state files its waiver petition (but, complicating matters even further, this

constraint does not apply if DOE finds that the state has an emergency condition).2

42 U.S.C. § 6297(d)(5). Congress intended EPCA to save energy, not to require a

state to be prescient about when DOE will act, the nature of that action, and whether

an intervening federal standard will further complicate the "effective date" nominally

assigned by the state.3

B. DOE erred in concluding that California did not show that the

standards are preferable to alternatives.

EPCA requires states seeking waivers to demonstrate by a preponderance of

the evidence that the benefits and burdens of their standards make the standards

preferable to alternatives. 42 U.S.C. § 6297(d)(1)(B)-(C). DOE determined that

2 For the same reasons, equally misplaced is DOE's concern about the timeliness of

the analyses in state petitions. See 71 Fed. Reg. at 78160 (Part III., final 9[). To the

extent DOE is suggesting that if a state mnis-guesses when DOE will allow a state

standard to take effect, so that the state's analyses might be based on different years

of assumed implementation of the state standard than will actually occur, DOE is

erroneously assuming that the state's burden is to predict costs and benefits at a

precise date in the future rather than just providing, by a preponderance of the

evidence, an analysis that is reasonable. See Section I.B.1, pp. 5-9 infra.

DOE's suggestion that after granting a waiver petition, it would merely commence

another rulemaking (rather than actually granting the waiver), would add yet more

uncertainty to the states' impossible task of determining, up front, when waivers for

their regulations would become effective. See Section IV, pp. 21-23 infra.

4

0000009

 EE-RM-PET-100 COMMENT 97
California's Petition failed to provide adequate support for the analysis of the costeffectiveness of the standards, and that the Petition failed to analyze alternatives that

were sufficiently specific to California and to residential clothes washers. 71 Fed.

Rett. at 78162-64. Those determinations are erroneous in law and in fact.

Cost-effectiveness analysis.

The Petition contains a detailed analysis showing that the California standards

are highly cost-effective , and it indicates that the underpinnings of the analysis were

subjected to rigorous analysis in the Energy Commission proceeding in which the

standards were adopted. DOE claims that California "did not provide a sufficient

explanation of the analysis supporting its estimates ," because, DOE states, California

"did not indicate where [the Energy Commission's] rulemaking record could be

located and where within the record the relevant assumptions , data, and analysis

could be located; nor did [California] provide sufficient explanation of the underlying

assumptions and data in its petition ." 71 Fed. Reg. at 78163 ., Thus DOE did not

determine that California's evidence failed to preponderate over countervailing

evidence (DOE cites none); rather, DOE determined that California 's evidence was

somehow inadequate as evidence per se.

This was error. Congress did not provide that states seeking waivers must meet

their burden of proof by presenting evidence "beyond a reasonable doubt" or even

"clear and convincing" evidence. By using the lower standard of "preponderance of

the evidence," Congress required DOE to examine simply whether, given the

evidence before it, a state has shown that it is-more probable than not that its

standards are needed to meet unusual and compelling state or local interests. The

state does have to reach a reasonable conclusion (i.e., the evidence it presents must be

legally substantial), but the conclusion can be reasonable even if DOE concludes that

one or more of the assumptions the state made in its analysis were too high or too

low, or inadequately supported. (Certainly nothing in EPCA or in DOE's regulations

says anything about a requisite level of support for assumptions or other data.) Only

if the state's assumptions are so clearly wrong on their face that the state's overall

conclusion is simply not reasonable should DOE conclude that the state's evidence

standing alone is inadequate to meet the burden of proof.

In addition, no matter what the law might say about the nature or sufficiency of

evidence in a state waiver petition , DOE's own regulations make clear that DOE has

only a limited time - before the agency accepts a petition for filing - to raise concerns

about the adequacy of the evidence therein:

5 0000010

 EE-RM-PET-100 COMMENT 97
Within fifteen ( 15) days of the receipt of a petition [for waiver],

[DOE] will either accept it for filing or reject it. and the petitioner will

be so notified in writing . .... Only such petitions which conform to the

requirements of [DOE's regulations ] and which contain sufficient

information for the purposes of a substantive decision will be accepted

.f0^r f it ing.

10 CFR § 430.42(f)(1) (emphasis added). California initially submitted its Petition

to DOE on September 16, 2005. Sixty-three (63) days later, DOE rejected the

Petition, on the sole ground that the Petition failed to state whether California was

aware of activity by any other state on similar standards. 71 Fed. Reg. at 78160.

California supplied the missing information (the answer was "no"), and DOE

accepted the Petition for filing, "as complete," on December 23, 2005. Id. (emphasis

added). Therefore, under the express terms of 10 CFR section 430.32(f)(1), DOE

had at that time concluded that the Petition did in fact "contain sufficient information

for the purposes of a substantive decision. " Thus when DOE published the Petition

and invited comments thereon, the notice posed many substantive questions,

including these:

Is the analysis used in the California Petition accurate? For example,

are the State's savings estimates correct? How valid are the State's

assumptions?

71 Fed. Reg. 6022, 6025 (Feb. 6, 2006) (emphasis added). These questions would

not make sense if DOE actually believed that the Petition had "failed to provide

sufficient explanation of the underlying assumptions and data." It was arbitrary and

capricious for DOE to have changed its mind - and especially so to have relied on

allegedly "[in]complete" data or "[in] sufficient information for the purposes of a

substantive decision" as a justification for denying the petition. See, e.g., United

States v. Nixon, 418 U.S. 683, 694-96 (1974); People of the State of California v.

FCC, 39 F.3d 919, 925 (9th. Cir. 1994), cert. denied, 514 U.S. 1050; Northern

California Power Agency v. FERC, 37 F.3d 1517, 1522 (D.C. Cir. 1994).

Moreover, even if DOE had been right•on the law, it would not have mattered,

for a full explanation of all the Petition's assumptions, data, and analyses - indeed,

the entire California rulemaking record - was readily available to the agency

throughout the 15 months between the initial submittal of the Petition and DOE's

denial. As DOE itself'noted almost a year ago, California's rulemaking "[m]aterial

related to this State regulation is available at the following URL address under

Docket 03-AAER-1(RCW):

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 EE-RM-PET-100 COMMENT 97
http://www.energy.ca.gov/appliances/2003rulemakina/clothes_washers/index.htn-il."

71 Fed Reg. at 6023. DOE's new complaint that California did not provide its

rulemaking record or citations thereto rings hollow.

Finally, even if the California rulemaking record had been somehow

unavailable or inadequate, DOE's rulemaking record contains all the "explanation"

that DOE needs. The only assumption or estimate about which DOE specifically

complained was the Energy Commission's estimate of the increased first cost of

washing machines that would result from the California standards. 71 Fed. Reg. at

78163. As we discuss immediately below, the evidence in the record shows that the

Petition's estimates ($130.18 for the 6.0 WF Standards, and $66.44 for the 8.5 WF

Standards, Petition at 21) are entirely reasonable. That is sufficient (without

conceding that it is necessary), whether or not DOE thinks that there is an "adequate

explanation" of the estimates.

For example, our Rebuttal noted that "Sears' `Washer and Dryer Guide'

[states] ... that the higher first cost of front-load washers `can be recouped in about 8

to 10 years ...."' CEC Rebuttal, No. 79 at p. 2 & n.6. This is certainly sufficiently

consistent with California's estimate of a payback of about six years for the 6.0 WF

standards to support California's cost-effectiveness conclusion. (If the actual

payback were 10 years, at Sears' upper limit, the Standards would still be costeffective, as the life of a typical clothes washer is 14 years. See CEC Petition, No. 1

at2L)

Similarly, the record shows that the California estimates of increased first costs

are consistent with AHAM's estimates of the financial impacts of the standards on

the clothes washer industry. AHAM's analysis shows a manufacturer cost of

approximately $20 per unit, which is likely to result in an increased cost to consumers

well within the range of the California estimates, even after markups are taken into

account. CEC Rebuttal, No. 79 at 9 (discussing AHAM, No. 52).4

In addition to estimating the financial impacts on the clothes washer industry

(from which is derived the $20/unit cost discussed in the previous paragraph),

AHAM also made direct estimates of the prices consumers are likely to pay for

washing machines under the California standards. Once again, there is little

4 AHAM filed timely comments on the petition , ARAM, No. 52, and also attempted

to file a response to California' s rebuttal comments, AHAM, No. 81. Any reliance by

DOE on the latter would be improper, for EPCA allows rebuttal but not responses

thereto. 42 U.S.C. § 6297(d)(2).

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significant difference between AHAM's estimates and California's; indeed. AHAMs

estimates were lower than California's.

AHAM estimated that "[a] WF of 8.5 will create a situation where the lowest

priced washer will be approximately $500.... A WF of 6 will result in a minimum

price of approximately $600...." AHAM, No. 52 at 29. These estimates are

consistent with California's estimates of average costs of $616 resulting from the 8.5

WF standard and $680 resulting from the 6.0 WF standard. CEC Petition, No. I at

21. The larger difference between AHAM's and California's incremental first cost

estimates - that is, the i720-ease in first cost that will result from the standards - is due

primarily to the differences in the parties' estimates of the base case price. of washing

machines - that is, what washing machines cost now, in the absence of the California

standards:

A B C D E

Base Case

Price

Price with

8.5 Standard

Incremental Cost

of 8.5 Standard

(B-A)

Price with

6.0 Standard

Incremental Cost

of 6.0 Standard

(D-A)

AHAM $220 $500 $280 $600 $380

Calif. $550 $616 $66 $680 $130

Estimates from CEC Petition, No. 1 at 21; AHAM, No. 52 at 29.

But AHAM's estimates of base case prices - and thus its estimates of the incremental

costs resulting from the standards - appear unreliable. $220 washers were a very

small part of the market as far back as 1998. See DOE, Clothes Washer Technical

Support Document, Table 3.6 (Docket No. EE-RM-94-403). In addition, the database

from which AHAM appears to have derived its estimates for the instant proceeding is

represented on a graph that shows that the vast majority of the top loading agitator

models with Water Factors of between 10 and 16 "today" (all of which were also part

of AHAM's "shipment weighted average" cost of $325 "today"), are no longer part

of the market as of January 1, 2007, because the federal energy standard has taken

effect. See AHAM, No. #52 at 22. Those models very likely include the $220 model

that the AHAM analysis uses as its "base case" number and also the vast majority of

the "shipment weighted average" sales that made up the $325 estimate, which

indicates that AHAM's base case assumptions are unreliable.

By contrast, had DOE looked at (or inquired about) the California rulemaking

record that was available at the URL DOE itself cited, it would have found, in the

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first document listed at the URL, the study by Pacific Gas & Electric Company that

provided much of the analysis used in the CEC rulemaking. That study provides all

the explanation of California's incremental cost assumptions that DOE apparently

believes is missing. It properly estimates the "base case" costs against which the

Standards' costs were compared; it states, for example, that "[t]o establish the most

probabl[e] baseline in 2007, the estimate must take into effect the impact of the 2007

DOE standard of 1.26 MEF." PG&E, "Title 20 Standards Development Analysis of

Standards Options For Residential Clothes Washers" at 4 (2003),

http://www.energy.ca. gov/appli aiices/2003rulemaking/clothes_washers/documents/2

005-09-05_CASE_STUDY_CLOTHES_WASHERS.PDF-("PG&E CASE Study").

The study continues with a detailed explanation of how the base case cost estimate,

and the incremental cost estimates, were derived. Id. at 7-9.'

In sum, California's estimates of the costs resulting from the 8.5 WF and 6.0

WF Standards are entirely reasonable, and nothing in the record indicates that those

estimates (or any other data) are incorrect or unreliable. Therefore, not only is DOE

wrong in asserting that California failed to justify or support its analyses, but DOE

also overlooks the independent evidence in the record that supports the only estimates

about which DOE indicated any concern.

2. Comparing the California standards to alternatives.

California's Petition and the many comments supporting it demonstrate that the

State's RCW standards:

[a]re such that the costs, benefits, burdens, and reliability of energy or

water savings resulting from the State regulation make such regulation

5 PG&E's study estimated a "base case" cost of $550, for a 12 WF RCW. PG&E

CASE at 4, 7. However, California's cost-effectiveness analysis assumed a "base

case" of 10.5 WF. CEC Petition, No. 1 at 21. As a result, the cost-benefit analysis in

the Petition substantially understates the benefits of the California Standards, because

the water and energy savings benefits took credit only for the difference between 10.5

and the Standards levels of 8.5 and 6.0; the savings would have been substantially

higher if the comparison had been to a base case of 12. In DOE's proceeding, PG&E

also pointed out another way in which the cost-benefit analysis understates the

Standards' benefits: the Standards will likely result in a shipment-weighted average

water use that is substantially lower than the usage level assumed in the analysis (i.e.,

that no washer would use less water than required by the Standards). PG&E,- No. 44

at 5.

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preferable or necessary when measured against the costs. benefits.

burdens, and reliability of alternative approaches to energy or water

savings or production, including reliance on reasonably predictable

market-induced improvements in efficiency of all products subject to the

State regulation.

42 U.S.C. § 6297(d)(l)(C)(1i). But DOE asserts that California did not meet its

burden of showing that the California standards are preferable to alternatives, stating:

Comparison of the costs and benefits of the California regulation

to non-regulatory alternatives ... [1] requires estimates of the costs and

benefits of those alternatives as implemented by California . . . [and] [2]

must be in the context of the "products subject to the State regulation."

(42 U.S.C. 6297(d)(1)(C)(ii)) ... [T]he costs and benefits presented [by

California] do not allow for a comparison of the costs and benefits of

alternatives ....

71 Fed. Reg. at 78164 (emphasis added). DOE is incorrect in asserting that EPCA

requires that the alternatives considered must be RCW- and California- specific.

DOE is also wrong in determining that the California petition did not present an

adequate alternatives analysis (even if RCW- and California- specific alternatives

must be included in the analysis).

First, on its face EPCA does not require that the alternatives discussed in a

state petition (except for the do-nothing alternative of reliance solely on the market)

be appliance- or state-specific; rather, it requires only that a petition discuss

"alternative approaches to energy or water savings or production." 42 U.S.C. §

6297(d)(1)(C)(ii). (Nor has DOE attempted to adopt any regulation giving states

notice that their analyses of alternatives would need to be product- or state- specific.)

Indeed, under the interpretive maxim of expressio unius est exclusio alterius,

Congress's specific requirement that one alternative - "reliance on reasonably

predictable market-induced improvements in efficiency" - be specific to "all products

subject to the State regulation," id., necessarily indicates that Congress did not intend

to require that any other alternative considered be product- or state-specific, see Case

v. Kelly, 133 U.S. 21 (1890). Thus Congress stated:

[42 U.S.C. § 6297(d)(1)(C)(ii)] does not constitute a Federal requirement

for State energy planning or forecasting and does not require the State to

use any .specific methodology. It does require the State to show that it has

engaged in a rational planning process in which the State has reviewed

10 0000015

 EE-RM-PET-100 COMMENT 97
the cost-effectiveness of various alternatives to State appliance

standards.

H.R. Rep. No. 100-11, at 25 (1987) (emphasis added).

Second, DOE's interpretation would lead to absurd results and is therefore

improper. American Tobacco Co. v. Patterson, 456 U.S. 63 (1982). EPCA requires a

comparison to "alternative approaches to ... savings or- production ...." 42 U.S.C.

§ 6297(d)(1)(C)(ii) (emphasis added). "Production" cannot possibly be productspecific, and for many states (e.g., those served by any water source that passes

through more than one state, such as those states bordering or containing the

Colorado, the Columbia, the Mississippi, the Missouri, or the Ohio River) a statespecific analysis of "production" alternatives from those sources would also be

impossible.

Third, DOE is wrong about what the Petition contains. The Petition's

discussion of major in-state water production alternatives - the State Water Project;

groundwater; new storage; and the major in-state rivers (Trinity, Sacramento, San

Joaquin, and Owens) - is California-specific. See CEC Petition, No. 1 at 11-12. (The

Petition also discusses the Colorado and Klamath Rivers, which are multi-state. See

id.) Just so, the Petition's discussion of the most prevalent and successful water and

energy savings alternatives - rebates and education - is both RCW- and Californiaspecific, as is the "rely on the market" discussion. See id. at 27-32, 34-36.

It is true that the Petition's discussion of some savings alternatives - early

replacement, mass government purchases, low income and senior subsidies,

consumer tax credits, and manufacturer tax credits - relies on DOE's 2000

rulemaking analysis of potential savings from nationwide RCW energy-savings

programs. DOE finds this "inappropriate." 71 Fed. Reg. at 78163. But DOE itself

relies on the 2000 analysis in assessing the merits of the California standards. See id.

at 78166. Moreover, DOE'sanalysis showed that all such programs combined would

save, in dollar value, less than ten percent of the water and energy savings from

timely standards, so it was certainly reasonable for the State to conclude that

standards are "preferable" and not to waste further time and resources analyzing the

other alternatives in greater depth. See CEC Petition, No. 1 at 33. For DOE to

criticize California's reliance on the 2000 analysis simply because California

reasonably believed that such programs would not be an order of magnitude more

effective is arbitrary and capricious.

Finally, although the evidence clearly shows that the Standards are preferable

to alternatives, an even more important point - also clearly demonstrated by the

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 EE-RM-PET-100 COMMENT 97
record - is that California has determined that it must pursue all feasible water supply

and efficiency options, i.e., both the Standards and "alternatives." California is

already implementing RCW rebate, education, tax credit. and many other programs.

The Standards that DOE would prevent the State from implementing are an integral

part of California's efforts to provide its citizens. its economy, and its environment

with adequate water, as the Legislature, the State's water supply agency, and

hundreds of State water districts have recognized:

It is . . . the policy of the state and the intent of the Legislature to

promote all feasible means of energy and water conservation ....

Cal. Pub. Res. Code § 25008 (emphasis added).

By wringing every bit of utility ,f 1'0777 every drop of water, Californians

can stretch water supplies and help ensure continued economic , social,

and environmental health.

2005 California Water Plan, vol. 1, ch. 1, p. 1-7 (emphasis added).

Improving the efficiency of clothes washers is only part of the overall

solution for reliable water supply, yet it is a vital part. Improving the

efficiency of clothes washers will not supplant other cost effective water

conservation efforts, such as rebate and voucher programs, improved

leak detection, increased public education programs, local landscape and

water use ordinances, water transfers, new local storage reservoirs and

,groundwater conjunctive use projects, increased reclamation of

stormwater and treated wastewater, and salt and brackish water

desalination. It is clear that there is no one "silver bullet" to secure

California's water future, but ACWA [the Association of California

Water Agencies, representing the almost 450 water agencies that deliver

over 90 percent of California's water] supports the efforts of its water

agencies to implement those that will make significant incremental

contributions using water more efficiently.

ACWA, No. 40 at 1-2. One relatively small water district (48 square miles)

described the extraordinarily lengths that California is going to, in both water

production and water conservation, as follows:

There are many alternative cost-effective methods to improve water

efficiency, and we are already implementing there. .... The District

evaluates water e cierzc)} options and water supply options equally in

12 0000017

 EE-RM-PET-100 COMMENT 97
its planning process. V17e implement all of the most cost-effective

strategies available. Improving the efficiency of clothes washers does

not supplant other reasonable means available. Our efforts to provide a

reliable source of water California include the following:

Weather-based irrigation Controller and mulch Distributions

® Vouchers for water-saving devices

® Free surveys to inspect irrigation systems for leaks and make

recommendations for efficient water use

® Irrigation system upgrade grants of up to $5,000

® Various school and public information programs including classes

on California friendly landscape design, drought tolerant plants and

efficient irrigation systems

® California friendly landscape contests

0 An ordinance prohibiting water waste

i Product standards support

® Water transfers

0 Recycled water

Groundwater recharge

Desalination.

Currently, the only available action to agencies is to offer rebates or

vouchers to encourage the purchase of the high-efficiency washers; this

method has limited effect and is very costly, compared to, appliance

standards. Ratepayers bear an undue burden because washer efficiency

standards cannot be adopted by the State."

Olivenhain Water Dist., No. 58 at pp. 2-3 (emphasis added); see also Sierra Nevada

Alliance, No. 4; North Marin Water District, No. 6; Three Valleys MWD, No. 12;

Foothill MWD, No. 16; Santa Fe Irrigation Dist., No. 20; West Basin MWD, No. 24;

City of Roseville, No. 32; Crescenta Valley WD, No. 42; Los Angeles Dept. Water

and Power, No. 46; Irvine Ranch WD, No. 48; City of Napa, No. 56; City of Del Mar,

No. 72; City of Yreka, No. 9; Cucamonga WD, No. 13.

C. DOE erred in finding that the California standards would cause the

elimination of top-loading washers and in relying on that finding

when denying the waiver.

DOE found that the California 6.0 WF standards "would likely result in the

unavailability of top-loading residential clothes washers in California" and stated that

13

0000018

 EE-RM-PET-100 COMMENT 97
"[t]herefore . DOE is prohibited from ... grant[ing] the California Petition ." 71 Fed.

Reg. at 78168 . Even if this were true. it would be irrelevant to the 8.5 WF Standards.

Moreover, with regard to the 6.0 WF Standards. DOE's findin, is wrong on the facts

and DOE's reliance on the finding is wrong- on the law.

Elimination of Top-Loaders.

DOE stated its finding as follows:

[T]he lowest WF of a top-loading washer currently on the market is

approximately 6.3. [Citations.] DOE finds that ... there are no toploading residential clothes washer[s] in the current market that would

comply with the 6.0 WF level ... and that therefore the proposed [2010]

California standard would result in the unavailability of top-loading

residential clothes washers ....

71 Fed. Reg. at 78167 (emphasis added). That the market in 2006 has no better toploader than a 6.3 WF model is, standing alone (which is where DOE placed it),

irrelevant to a conclusion that the market is unlikely to have no 6.0 top-loaders in

2010. Indeed, the existence of such a model now strongly suggests, and the evidence

shows, that the market is in fact likely to have 6.0 top-loaders by 2010. See CEC

Petition, No. 1 at 46; CEC Rebuttal, No. 79 at 13.

2. Denial of the Waiver.

Even if the 6.0 WF Standards would eliminate top-loaders from the California

market in 2010, that finding would not justify DOE's decision to deny a waiver not

only for the Standard as applied to top-loaders, but also for the Standard as applied to

front-loaders. "[The failure of some classes (or types) to meet [the featureunavailability] criterion shall not affect [DOE's] determination of whether to

prescribe a rule for other classes (or types)." 42 U.S.C. § 6297(d)(4).

As we noted in the Introduction to this Request, there are two separate 6.0 WF

Standards - one for top-loaders and one for front-loaders - although the two

Standards are the same numerically. Cal. Code Regs. tit. 20, § 1605.2(p)(1). As a

result, DOE could have easily solved the "problem" - the (unlikely) possibility that

there will no top-loading 6.0 WF RCWs in the 2010 California market - by granting

an unconditional waiver for the 6.0 WF Standard for front-loaders, and a conditional

14 0000019

 EE-RM-PET-100 COMMENT 97
waiver for top-loaders (conditioned on enforcement of the 6.0 WF Standard for toploaders only against those with greater than 6.3 WF). 6

DOE refused to grant a separate waiver for front-loaders for two reasons. First,

DOE claimed that the California Petition did not distinguish between top-loaders and

front-loaders "and therefore, the question of whether such levels would be

appropriate for individual classes of residential clothes washers is not at issue." 71

Fed. Reg. at 78167. Not so. EPCA gives DOE the discretion to grant waivers for

different classes or types regardless of what a state petition might say, 42 U.S.C. §

6297(d)(4), and in any event the analyses in the California Petition apply to all

classes and types, CEC Petition, No. I at 4.

Second, DOE stated:

Even if [the question of standards for different classes] were [at issue],

however, DOE would be concerned that differing maximum WF levels

established for specific classes ... could have negative consequences for

water savings in California. Regulating ... front-loading ... washers to

a 6.0 WF, while allowing a significantly less stringent WF level for toploader washers, would likely further increase the existing price

differential between top- and front-loading washing machines..... The

result of this change in price difference could well increase purchases of

less water efficient residential clothes washers, and potentially offset the

intended benefit from setting a water efficiency standard for certain but

not all classes of residential clothes washers.

71 Fed. Reg. at 78167 (citations omitted). DOE's "concern" that something "could"

happen that might "potentially" reduce the savings from standards is not a valid

evidentiary basis for a finding. And DOE's "concern" is purely an artifact of DOE's

own making. DOE appears to reason thus:

6 DOE night have believed that it has no authority to grant a waiver for a state

standard not expressly set forth in a waiver petition, such as a 6.3 WF Standard for

top-loaders. But DOE can accomplish the same practical result without actually

modifying a state standard. Thus here, DOE could grant a waiver for California's 6.0

WF Standards, but, with regard to top-loaders, the waiver would be subject to the

condition that the State could enforce the Standard only as to those machines with a

WF above 6.3.

15 0000020

 EE-RM-PET-100 COMMENT 97
(1) a large price differential could occur between top-loading and front-loading

RCWs if the former has no WF requirement or one much less stringent than the latter:

(2) the price differential could cause consumers to buy fewer water-saving frontloaders;

(3) DOE cannot grant a waiver for a 6.0 WF standard for top-loaders to take effect in

2010, because the best WF availab]e today for a top loader is 6.3;

(4) because (as determined in (3)) DOE must not allow California to regulate toploader RCWs to any WF standard, a large price differential between top-loaders and

front-loaders is in fact likely;

and therefore,

(5) California cannot regulate either top loaders or front loaders!

With all due respect to DOE, this does not carry out either the letter or the spirit of

section 6297(d). Even if the first three premises are accepted (despite the weaknesses

discussed above), the fourth is solely a problem of DOE'S own creation, for, as

footnote 6 supra explains, nothing stops DOE from granting a conditional waiver for

top-loaders at a level (6.3) that would substantially limit the likely price differential.

II. The California Standards Are "Needed" to Meet Unusual and Compelling

State and Local Water and Energy Interests, Which Are Different in Both

"Nature" and "Magnitude" from Those Prevailing Generally in the U.S.

A. DOE erred in concluding that California's water and energy

interests are not "different in nature" from those prevailing

generally in the U.S.

Although DOE correctly concluded that California met its burden of showing

that the State's water and energy interests differ in "magnitude" from those in the

U.S. generally, DOE erroneously concluded that the State failed to show that its

interests are different in "nature." 71 Fed. Reg. at 78161-62, 78167-68.

The Petition demonstrates that California's population, California's water use,

California's water supplies, California's water costs, California's energy use for

water pumping and for treatment of water supplies, the need of 'California's edonomy

for water, and the implications of water and energy supplies and use on California's

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