Assumptions and Inputs:

Cost of Base Case (10.5 WF) RCW: $ 550 Cost of 8.5 WF RCW: $ 616.44 Cost of 6.0 WF RCW: $ 680.18

Number of Wash Loads Per Year: 392 Average Life of RCW: 14 years

Water Price: $ 0.0032 per gallon Electricity Price:$ 0.115 per kWh Gas Price: $ 0.63 per therm

Electricity Savings for 8.5 WF standard:

Consumer Savings of 13 kWh/year/machine

Statewide Savings includes additional 14.5 kWh/year/machine for water pumping and water treatment

Electricity Savings for 6.0 WF standard:

Consumer Savings of 18 kWh/year/machine

Statewide Savings includes additional 21.7 kWh/year/machine for water pumping and water treatment

Discount Rate: 3 percent Annual California Sales of RCW: 900,000 units

TABLE 3: SAVINGS FOR THE INDIVIDUAL CALIFORNIA CONSUMER: 6.0 WF STANDARDS (EFFECTIVE 2010)

Water

Savings

(gallons)

Electricity

Savings

(kWh)

Gas

Savings

(therms)

Water

$ Savings

Electricity

$ Savings

Gas

$ Savings

Total

$ Savings

Increased

First Cost

Net $ Savings

(Total Savings Minus

Increased

First Cost)

Annual

Savings

5,292 18 4 $16.93 $ 2.07 $ 2.52 $ 21.52 NA NA

Savings

During

14-Year

Appliance

Lifetime

($ in present

value)

74,088 252 56 $191.00 $ 23.28 $ 28.47 $ 242.85 $ 130.18 $112.67

21

 EE-RM-PET-100 COMMENT 97
TABLE 4: STATEWIDE SAVINGS: 6.0 WF ST ANDARDS (EFFECTIVE 2010)

Water

Savings

(gallons)

Electricity

Savings

(gWh)

Gas

Savings

(therms)

Water

$ Savings

Electricity

$ Savings

Gas

$ Savings

All

$ Savings

Annual Savings:

First Year of

Standards

4.76

billion

16.2 (washing machine)

35.73 (washing machine

plus water pumping

and treatment)

3.6

million

$15.23

million

$ 1.86 million

(washing machine)

$ 4.06 million

(washing machine

plus water pumping

and treatment)

$ 2.3

million

$19.39 million

(washing machine)

$ 21.59 million

(washing machine

plus water pumping

and treatment)

Annual Savings:

After Entire Stock

Has Been

Replaced

66.7

billion

226.8 (washing

machine)

500.2 (washing machine

plus water pumping

and treatment)

50.4

million

$ 172

million

$ 21 million

(washing machine)

$ 45.1 million

(washing machine

plus water pumping

and treatment)

$ 26

million

$ 219.1 million

(washing machine)

$ 243.9 million

(washing machine

plus water pumping

and treatment)

0

0

22

 EE-RM-PET-100 COMMENT 97
TABLE 5: SAVINGS FOR THE INDIVIDUAL. CALIFORNIA CONSUMER: 8.5 WF STANDARDS (EFFECTIVE 20071

Water

Savings

(gallons)

Electricity

Savings

(kWh)

Gas

Savings

(therms)

Water

$ Savings

Electricity

$ Savings

Gas

$ Savings

Total

$ Savings

Increased

First Cost

Net $ Savings

(Total Savings Minus

Increased

First Cost

Annual

Savings

2,352 13 3 $ 7.53 $ 1.49 $1.89 $ 10.91 NA NA

Savings

During

14-Year

Appliance

Lifetime

($ in

present

value)

32,928 182 42 $ 85.02 $ 16.89 $21.357 $ 123.26 $66.44 $ 56.82

23

 EE-RM-PET-100 COMMENT 97
TABLE 6: STATEWIDE SAVINGS: 8.5 WF ST ANDARDS (EFFECTIVE 2010)

Water

Savings

(gallons)

Electricity

Savings

(gWh)

Gas

Savings

(therms)

Water

$ Savings

Electricity

$ Savings

Gas

$ Savings

All

$ Savings

Annual Savings:

First Year of

Standards

2.1 billion 11.7 (washing machine)

20.37 (washing machine

plus water pumping

and treatment)

2.7

million

$ 6.72

million

$ 1.35 million

(washing machine)

$ 2.8 million

(washing machine

plus water pumping

and treatment)

$ 1.7

million

$ 9.77 million

(washing machine)

$ 11.22 million

(washing machine

plus water pumping

and treatment)

Annual Savings:

After Entire Stock

Has Been

Replaced

29.4

billion

163.8 (washing

machine)

285.18 (washing

machine plus water

pumping and

treatment)

37.8 million $ 75.9

million

$ 15.25 million

(washing machine)

$ 31.6 million

(washing machine

plus water pumping

and treatment)

$19.2

million

$ 110.36 million

(washing machine)

$ 126.7 million

(washing machine

plus water pumping

and treatment)

24

 EE-RM-PET-100 COMMENT 97
These savings are impressive. For individual consumers, the 6.0 WF standards will

save approximately 11 percent of a typical household's water use. In addition, the

simple payback for both the 8.5 WF and the 6.0 standards is approximately six

years - that is, the initial investment in the more efficient RCW is repaid in six

years. The lifetime of a typical RCW is fourteen years, so consumers will be much

better off financially as a result of the standards.

On a statewide basis, the total annual water savings that will result once the 6.0 WF

standards have reached their full effect - that is, after all stock has been replaced

with complying equipment - will be approximately 204,387 acre-feet per year. This

is equivalent to the amount of water used by the entire City of San Diego, the

second-largest city in California and the seventh largest city in the country.61

Another way of looking at this is that the annual water savings from the fullyimplemented 6.0 WF standards would be enough to supply the needs of over

425,000 California households.61

To put the savings from the standards into the context of other water-savings efforts,

the 2005 Draft California Water Plan estimates that up to 2.4 million acre-feet a year

of water savings are potentially available from all Urban Water Use Efficiency

efforts.62 The 6.0 WF standard will, when fully implemented, provide over 8

percent of those savings. That is a considerable accomplishment for standards for a

single appliance.

Moreover, even though the standards were adopted primarily as a water-saving

measure, the energy savings will also be significant. A fully-implemented 8.5 WF

standard will save as much energy as the annual usage for approximately 50,000

California homes, and the 6.0 WF will save the equivalent of the annual energy use

of approximately 85,000 California homes.63 Thus, at minimal cost, the standards

60 www.census.gov/statab/ccdb/cit1020r.txt.

61 204,387 acre-feet per year saved, divided by a typical California water use per household of

156,000 gallons per household per year as reported by Scott Matyac, Senior Land and Water Use

Scientist, Department of Water Resources, in November 2004, based on unpublished water use and

demographic data compiled for the 2005 Draft California Water Plan.

62 2005 Draft California Water Plan, vol. 1, Ch. 1, p. 1-15.

63 www.census.gov/popest/statesNST-EST2003-ann-est.html, and

www.eia.doe.gov/emeu/states/sep_use/total/pdf/use-all.pdf

25 600008G

 EE-RM-PET-100 COMMENT 97
will free up large energy and water resources that can be conserved or used more

productively in the California economy.

Finally, in addition to the direct savings in water and energy costs, the standards

will, by reducing demand, contribute to long-term reductions in the rates that water

and energy utilities would otherwise have to charge. Reduced water and energy

demand will also help defer capital investments by utilities, and will lessen the

frequency and severity of possible future water and energy shortages.

D. Alternatives to the Standards

As we noted above, in order to obtain a preemption waiver, a state must demonstrate

that its interests:

(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 or water 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 or

water savings or production , including reliance on reasonably

predictable market-induced improvements in efficiency of all products

subject to the State regulation.6

The previous parts of this Petition have shown.that California's interests "are

substantially different in nature .or magnitude than those prevailing in the United

States generally" (pages 5-19) and that the benefits of the standards, both to

individual consumers and to the State as a whole, are substantial (pages 19-26).

Now, in this part of the Petition, we demonstrate that the standards are preferable to

the available alternatives: rebates and accompanying educational efforts, other nonregulatory programs, and "reliance on reasonably predictable market-induced

improvements in efficiency" (i.e., doing nothing).

64 42 U.S.C. section 6297(d)(1)(C)(i)-(ii).

26 0000087

 EE-RM-PET-100 COMMENT 97
Before turning to specific alternatives, we emphasize again that the California

Legislature has required the Energy Commission to adopt the RCW standards.65

DOE should be very hesitant to second-guess the determination, by the elected

governing body of the largest State in the Union, that the standards are necessary.

1. Rebates

In the Energy Commission's rulemaking proceeding in which the California RCW

standards were adopted, the Association of Home Appliance Manufacturers

("ARAM") encouraged the Commission to consider rebates (and accompanying

consumer education) as an alternative to the then-proposed standards.66 This option

is incapable of achieving the results of the adopted standards and would be

substantially more expensive.

For several reasons, rebates and education would not achieve the same RCW water

savings as the standards. The primary reason is that existing rebate and education

programs have fallen far short of achieving full energy efficiency in the RCW

market (even though clothes washers have been the subject of rebates for both

energy efficiency and water efficiency for a number of years); given that track

record, it is unrealistic to believe that such programs would be able to accomplish

much more for water efficiency. For a decade there have been vigorous and

sustained RCW energy- and water-efficiency rebate and education programs,

including the federal Energy Star program, utility rebates and promotion, and

manufacturer marketing. Yet as Figure 2 shows, despite those programs, highenergy-efficiency (i.e., Energy Star rated) RCW account for only 39 percent of the

California market as of the end of 2003.

II

II

65 California Public Resources Code section 25402(e)(1).

66 CEC Docket No. 03-AAER-01 (RCW), Hearing Transcript, October 15, 2003,

p. 63, (www.energy.ca.gov/appliances/documents/2004-12-15_TRANSCRIPT.PDF).

27 0000088

 EE-RM-PET-100 COMMENT 97
Figure 2: Energy Star Washer Market Share: U.S. and California 67

45

40

35

3

25-

20- tea.. .-.

.a'

15

'

10 ®-

5

:

:

III

^000 000 e e °°°

1

' o°' d''

Time Period

I- Energy --Energy Star: CA -+-• Energy Star: USA -4 per. Mov. Avg. (Energy Star: CA)

While they have been effective in initiating market transformation, rebate and

education programs were neither designed nor expected to fully transform the entire

market for high-energy-efficiency RCW in California. Thus it is unrealistic to

expect that continuation of similar rebate and education efforts could achieve a

market share of high-water-efficiency RCW substantially higher than the 39 percent

level achieved for energy efficient washers (which is well above today's

approximately 30 percent market share for washers with less than 8.5 WF).68 On the

other hand, the California standards, if given a waiver by DOE, will achieve a 100

percent market share.

67 www.energystatr.gov/ia/partners/manuf res/2003_appliance_sales-data.xls (03/09/2004).

68 Pacific Gas & Electric Company, SMUD, and the City of Austin offer rebates for Energy Star

RCW. In the first half of 2004, about 75 percent of their 19,000 rebates were for machines with

water factors at or below 8.5. (Consortium for Energy Efficiency, memorandum, July 21, 2004,

Chart 4.) (The California data dominates the sample, so the City of Austin results do not bias the

findings.) Assuming that Energy Star models constitute around 40 percent of the market (see

Figure 2), then around 75% x 40% = 30 percent of the current market is for RCW with WF of 8.5

or less. About half of the rebates were for machines with water factors at or below 6.0 (id.), which

suggests that such machines have a market share of around 50% x 40% = 20 percent.

28 0 6&; F^'*

 EE-RM-PET-100 COMMENT 97
Moreover, if rebate and education programs were reconfigured expressly to

transform the entire market, rebates would have to be very large - prohibitively

expensive when compared to standards. That is because current rebates are

generally sized to encourage acceptance of new technologies by "early adopters,"

not to push products into the hands of "technology laggards." Common sense, and

real-world retailer experience, indicates that rebates that at leastfully reimburse

consumers for the incremental costs of high-water-efficiency machines would be

required in order to achieve anything close to a 100 percent market share for highwater-efficiency washers. For example, market research by the Northwest Energy

Efficiency Alliance ("NEEA") has documented that retailers believe that they could

sell efficient washers, with an increased cost of $200, to no more than one-third of

buyers, if lower-cost, less-efficient models were also an option.69 This is despite the

fact that such an incremental cost is more than justified by savings on a net present

value basis for consumers. Thus, rebates sized to match the full incremental cost

would be required for voluntary programs designed to impact the majority of the

"laggard" market.

The costs of such "super" rebates would be very high. Even the lowest-cost Energy.

Star-rated washer (which is not particularly water-efficient) is over $100 more

expensive than the average washer;70 most water-efficient washers - many of which

include other higher-end features - currently cost several hundred dollars more than

baseline washers .71 These high costs for most water-efficient models appear to.be

the result of manufacturers' lack of motivation to "unbundle" water efficiency - that

is, to provide low-cost, high-water-efficiency washers without additional "bells and

whistles." Currently, high water efficiency is viewed as an amenity for which

customers are willing to pay extra; this translates to profitability for manufacturers.

In the absence of standards, therefore, we see no evidence that incremental costs will

69 "Market Progress Evaluation Report: WashWise Program". Northwest Energy Efficiency

Alliance, Portland, OR. Report Number E98-003, July 1998. Page iv.

70 "Comments of PG&E Regarding Proposed Residential Clothes Washer Water Factor Standards

(CEC Docket No. 03-AAER-01) (RCW)" December 2, 2003, Pacific Gas and Electric Company,

p. 3.

71 In its November 11, 2003 comments in the CEC's rulemaking proceeding (CEC Docket No. 03-

AAER-0l)(RCW), AHAM included shipment weighted price estimates for washers meeting

different WF levels in 2004. Then-current baseline product pricing was shown as the mid-three

hundred dollar range versus just over $1,000 for washers meeting 8.5 and 6.0 WF levels. Thus,

AHAM data suggests a shipment-weighted incremental cost of over $600 in 2004.

29 0000090

 EE-RM-PET-100 COMMENT 97
drop substantially in the near term, especially with the availability of rebates, which

allow manufacturers to maintain large margins on these high-end models.72

In order to compare the relative costs of standards and rebates, we modeled the cost

of providing typically-sized rebates (assuming a baseline of 12 WF73). First, we

conservatively assumed that the future average incremental cost to customers for an

8.5 WF washer would be $290, in the absence of the California standards.74 Second,

we added utility administrative costs (when utilities pay rebates, they must expend at

least $30 to 40 or more per washer for administration). Third, we assumed that

participation rates in water and energy utility programs are, respectively, 40 and 50

percent of all eligible washer sales in California. Weighted average combined costs

per eligible washer to utilities and consumers were then calculated. The results are

shown in Table 7 below: taken together, without the proposed standards in effect,

customers and utilities would have to contribute $388 per rebated washer to reach

the 8.5 WF level. If all eligible washer purchases resulted in rebates from both

water and energy utilities, the average total cost would be even higher ($513).

Moreover, as we previously noted, even at this relatively high cost, the rebate

program would not transform the entire California market. In contrast, the costs of

the standards, which achieve 100 percent market penetration, are only $66 (for the

8.5 WF standard) and $130 (for the 6.0 WF standard). (See pages 21, 23 above.)

72 In the Technical Support Document for the 2000 RCW rulemaking proceeding, DOE noted that

manufacturer data suggested profit margins of more than 10 percent for horizontal-axis washers

(versus 6.2 percent for baseline washers). U.S. Department of Energy, 2000 Final Clothes Washer

Final Rule Making-Technical Support Document, Chapter 11. Manufacturer Impact Analysis, p.

11-26 (www.eere.energy.gov/buildings/appliance-standards/residential/clwash_0900 r.html).

73 We used a baseline of 12 WF because that is the rounded value set forth by AHAM in the CEC

proceeding that adopted the RCW standards. (CEC Docket No. 03-AAER-01 (RCW), Hearing

Transcript, October 15, 2000). (www.energy.ca.gov/appliances/documents/2004-12-

15_TRANSCRIPT.PDF).

74 $290 is a conservative estimate of incremental cost in the absence of a standard. According to

AHAM's "2007 Estimated Washer Cost vs. Water Factor Cost Ranges and Median Price Point for

Industry" (AHAM, Nov. 11, 2003 comments in CEC Docket No. 03-AAER-01 (RCW),

attachment 2), the incremental cost of an 8.5 WF washer in 2007 would be $250 and the

incremental cost of a 6.0 WF washer in 2007 would be $837. In order to be conservative, we

based our incremental cost estimate ($290) for an 8.5 WF washer on the lowest published price

($629) for a washer with a water factor below 6.0 found at the Sears website on July 28, 2003,

versus the $340 average washer cost reported by AHAM in the CEC rulemaking proceeding.

30 0000091

 EE-RM-PET-100 COMMENT 97
Table 7: Costs of Rebate Programs for Consumers and Utilities

Cost Factor Amount I Participation Rate Weighted

Amount

Water utility

administrative costs

$35 s 40% $14

Energy utility

administrative costs

3876 50% 19

Water incentive 1 75 40% 30

Energy incentive 1 75 50% 35

Total Utility cost 223 98

Incremental retail

price

290 100% 290

Total cost $513 $388

The California Urban Water Conservation Council ("CUWCC") is a collaborative of

water agencies, other government entities, non-governmental organizations, and

businesses that has been working on water use efficiency in California for 15 years.

The council has noted: "The urban water purveyors of California cannot financially

support rebate programs to convert the market share of water efficiency washers to

the level necessary to eliminate the water wasting clothes washers in the market.""

However, if DOE grants this Petition and allows the California standards to take

effect, manufacturers would face an immediate demand for lower-cost products

(probably meaning a more modest feature package) that meet the standards. The

entire history of price impacts resulting from appliance efficiency standards strongly

supports our view that the incremental retail price for washers that meet the new

75 Estimated cost is the center of the cost range ($30 to $40) provided in conversation with Tom

Pape on behalf of CUWCC.

76 Estimated processing cost for PG&E based on overall Residential Retrofit Rebate Program

filings to the CPUC as shown in "2002 Energy Efficiency Program Selection R. 01-08-028:Energy

Efficiency Proposal, Statewide Residential Retrofit Single-Family Energy Efficiency Rebates".

Pacific Gas and Electric Company, December 2001.

77 "Projected Water Demand Reductions Derived From CEC Proposed Water Factor Standards",

California Urban Water Conservation Council, Sacramento, January 21, 2004, p. 2

(www.cuwcc.org/Uploads/hotnews/CEC HEW Testimony_04_01_21.pdf).

31 0000092

 EE-RM-PET-100 COMMENT 97
standards will be much lower than the spread between the price of baseline washer

and efficient washers prior to the standards taking effect.7$

The bottom line is that rebate and education programs would be several times more

expensive than the standards. Moreover, savings from such programs would not

persist after termination, so additional expenses would be needed to prevent

"backsliding. ,79 Furthermore, all costs of rebate and education programs ultimately

would have to be passed back to Californians in their energy and water rates. The

California RCW standards are much less expensive and will save much more water.

2. Other Non-Regulatory Programs

Of course, rebate and education programs are not the only alternatives to standards.

But as DOE itself found, in assessing numerous alternatives in its 2000 residential

clothes washer rulemaking proceeding, none could achieve more than a small

fraction of the savings from standards. DOE considered a very wide range of

potential programs, including such activities as mass government purchases and

various subsidies. The results were discouraging:80

//

78 Larry Dale, et. al. "Retrospective Evaluation of Declining Price for Energy Efficiency

Appliances."

79 If rebate funds became unavailable, the. customer research suggests that market share for

efficient washers would fall significantly.

80 U.S. Department of Energy, 2000 Final Clothes Washer Final Rule Making-Technical Support

Document, Regulatory Impact Analysis, September 2000, p. RIA-12, Tables RIA1 and p. RIA-13,

RIA2.

32 0000093

 EE-RM-PET-100 COMMENT 97
Table 8: Savings from Other Non-Regulatory Programs

Alternative Description Water Source NPV (billion

Program Savings Energy 1998$)

(trillion Savings

gallons) (Quads)

Early 6 year program; assume 0.0006 0.004 0.025

replacement 50% increase in early

with existing replacement sales with

efficiencies current market efficiency

Mass 6 year program; assume 0.013 0.006 0.019

government 25% of replacement sales

purchases in HUD public housing

households are high

efficiency units

Enhanced 6 year program; assume 0.054 0.026 0.079

public effects are

education equivalent to $39 financial

incentive

Low income 6 year program; 25% 0.065 0.031 0.095

and senior subsidy of cost for MEF >

subsidy 1.257 units; assume 28%

of households participate

Consumer tax 15% tax credit; assume 0.085 0.041 0.125

credits 60% of consumers

participate

Consumer Rebate of 15% of the cost 0.150 0.072 0.220

rebates of high efficiency (35%

level) units

Early 6 year program; assume 0.161 0.078 0.238

replacement 15% increase in early

with 35% replacement sales with

efficiency level high efficiency units

Manufacturer $50 to $100 credit per unit 0.299-0.666 0.153-0.330 0.217-0.756

tax credits for two efficiency tiers

(MEF 1.26 and 1.42)

Voluntary 10 year delay in start date 6.81 3.09 8.54

efficiency of standards

targets

Voluntary 5 year delay in start date of 9.97 4.55 12.38

efficiency standards

targets

Mandatory Proposed negotiated 11.59 5.52 15.33

standards standard

33 0000094

 EE-RM-PET-100 COMMENT 97
Thus according to DOE, none of the non-standards (including rebates and education)

alternatives are capable of delivering anything remotely approaching the savings that

a standard would produce. Only "voluntary targets" - which are actually nothing

more than a "proposed negotiated standard," but with a delayed effective date -

could come anywhere close to delivering the same amount of savings.

It is true that the California standards at issue in this Petition are different than those

considered in DOE's analysis. Nevertheless, because DOE was considering the

same appliance, the technical issues and market barriers are quite similar.

Therefore, we believe that DOE's analysis - which, again, shows that alternatives

can achieve only a few percent of the savings from standards - is a reasonable proxy

for the California standards assessment . California's adopted standards are clearly

the most successful strategy - with no close alternative -for cost-effectively

acquiring water savings and ensuring that the savings are persistent over time.

3. "Reasonably predictable market-induced

improvements in efficiency."

It would be a serious error for California to rely on - or for DOE to force: California

to rely on - "reasonably predictable market-induced improvements in efficiency" to

produce the water and energy savings that the RCW standards will achieve.81 In the

RCW rulemaking proceeding completed in 2000, DOE estimated that the average

RCW at that time had a 13.3 WF, and DOE predicted, on the basis of data supplied

by AHAM and individual RCW manufacturers, that the average WF in 2007 would

be around 7.0.82 As a result of the trillions of gallons of water savings implicit in

DOE's prediction, manufacturers strongly opposed including water efficiency

requirements in the federal RCW standard-on the ground that the energy standard

alone would deliver the water savings. Unfortunately, DOE's prediction has failed

to materialize. AHAM recently estimated that shipment-weighed average water

factors would be approximately 10.8 and 10.4 in 2004 and 2007, respectively, in the

absence of State standards - far from the 7.0 WF prediction.83

8

See 42 U.S.C. section 6297(d)(1)(C)(ii).

82 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer

Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December

2000, Chapter 4, Engineering Analysis, pp. 4 - 5.

83 CEC Docket No. 03-AAER-01 (RCW), Hearing Transcript, October 15, 2003, p. 47

(www.energy.ca.gov/appliances/documents/2004-12-15 TRANSCRIPT.PDF).

34 0000095

 EE-RM-PET-100 COMMENT 97
What appears to have happened is that although there were some modest gains in

water efficiency as a result of the 2004 federal RCW energy standard, manufacturers

have decided to meet the federal standard with products having lower energy use but

only marginally improved water efficiency. This is a natural result of the fact that

there is little correlation between energy efficiency and water efficiency. The

Consortium for Energy Efficiency ("CEE") recently completed a comprehensive

analysis of residential washer rebate program data collected from numerous water

and energy utilities participating in its Residential Clothes Washer Initiative. Figure

3 below depicts the water factor and modified energy factor for each washer model

rebated through the 2003 programs analyzed by CEE.84 The data shows that there is

only a modest correlation between water efficiency and energy efficiency, and

indicates that "reasonably predictable market-induced improvements in [water]

efficiency," even when driven by federal energy standards, would not deliver the

majority of the savings potential from the California standards.

Figure 3: Correlation Between MEF and WF

MEF, WF, and Manufacturer

12.00

11.00

10.00

9.00

4.00

3.00

2.00

1.00 1.20 1.40

0-

0

t -0 + 0 , 40h

1.60 1.80

MEF

+

2.00 2.20 2.40 2.60

+Asko

XAvanti

- BSH

® Electrolux

® Fisher Paykel

® Gorenje

+t_G

Maytag

-Miele

Staber

Whirlpool

84 Rebecca Foster, Consortium for Energy Efficiency, Memo to CEE Residential Appliance

Committee, July 21, 2004. Page 15.

35 0000096

 EE-RM-PET-100 COMMENT 97
We assessed the magnitude of the lost water savings were California to rely on

market-induced improvements instead of its adopted RCW standards. Figure 4

below shows our optimistic estimate that "reasonably predictable market-induced

improvements in efficiency" would produce an average annual reduction of 1.5

percent in (see the upper line in the figure). This is somewhat lower than the

estimated average WF reduction of about 2.4 percent over the 10 years leading up to

2007. We estimated a slower future rate than the rate of the last ten years because,

as noted above, the federal RCW energy standard did produce some early reduction

in WF but those gains are leveling off, and in a "market-induced improvements"

scenario there would be no other factors aggressively driving WF downward. For

the California standards scenario (the bottom line in the figure), we assumed WF

reductions to proceed at approximately 0.7 percent annually. After the

implementation of the 2010 standard, natural market-induced efficiency

improvements would be expected to be lower because incremental improvements

would be relatively more expensive, and because voluntary program opportunities

and therefore activities would be lower. Based on those assumptions, we estimate

that for those washers sold between 2010 and 2040, and operated between 2010 to

2054, the cumulative differential in water use between market-induced efficiency

improvements and the California standards would amount to over 1.2 trillion gallons

of water. At the today's average California water price of $ 0.0032 per gallon, this

would be worth almost four billion dollars. That would be much too high a price for

California to pay for a DOE denial of this Petition.

Figure 4: Projected U.S. (Unregulated) Water Efficiency Versus

Water Efficiency Under the California Standards

14 ,

--.--National Actual

-o--CA Estimated

-s-Projected Nation

0 - - - . r . --i _- r r

1995 2000 2005 2010 2015 2020 2025 2030 2035 2040 2045

Year

36 0000097

 EE-RM-PET-100 COMMENT 97
IV. Potential Burdens on Industry

DOE may not grant a preemption waiver if it finds "that interested persons have

established, by a preponderance of the evidence, that [the] State regulation will

significantly burden manufacturing, marketing, distribution, sale, or servicing of the

[appliance] on a national basis." (42 U.S.C. section 6297(d)(3).) In determining

whether to make such a finding, DOE must consider all relevant factors, including:85

(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 product type (or

class), 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 efficiency

requirements and the cumulative impact such requirements would have.

This section of the Petition shows, in summary fashion, that the California standards

will for the most part impose no such burdens at all, and that any burdens that might

materialize would be insignificant. If other parties present evidence of such burdens,

we will respond in detail in rebuttal comments.86

85 42 U.S.C. section 6297(d)(3).

86 See id. section 6297 (d)(2).

37 0000098

 EE-RM-PET-100 COMMENT 97
A. Manufacturing and Distribution Costs

In its RCW rulemaking, DOE found that the benefits of federal standards would

outweigh any negative manufacturer impacts, even though DOE assumed that

horizontal-axis technology (with a water factor between 7 and 8) would be used to

meet the 2007 federal standards.87 DOE estimated an incremental manufacturing

cost of $150 to meet that standard.88 Once performance in the 7 to 8 WF range is

achieved in a horizontal-axis configuration, it is doubtful that there is a significant

additional manufacturing cost required to achieve a water factor of 6.0.84 Given

technological developments since the late 1990s, and DOE's history of

overestimating the costs of standards90, it is likely that the manufacturing cost

impacts of the California standards will be even smaller than those anticipated by

DOE.9'

These estimates are supported by current facts. Most appliance manufacturers, both

small and large, already make high-efficiency, horizontal-axis washers; the May 16,

2005 CEE listing shows 97 models under 20 different brands at a 7.5 WF or better,

and 55 models at 5.5 WF or better. As is discussed in footnote 70 above,

approximately 20 percent of California sales of washers already comply with the

2010 standard of 6.0 water factor, and approximately 30 percent already meet the

2007 standard of 8.5. Clearly then, significant investments in research and

development, and production infrastructure, have already been made.

87 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer

Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December

2000, Engineering Analysis, p. 4-5.

88 By the time the final rule was published in 2001, the DOE had become aware that vertical-axis

products meeting the 2007 levels were possible and had an incremental manufacturer cost of only

$75. (See 66 Fed. Reg. 3315 (Jan. 12, 2001).)

89 Figure 5 below depicts the broad distribution of retail prices of various washers rebated in utility

programs in 2003. AHAM data presented in the Energy Commission's rulemaking proceeding

also showed minimal price differences among models meeting different low water factors.

90 Larry Dale et al, "Retrospective Evaluation of Declining Price for Energy Efficiency

Appliances," 2000, Lawrence Berkeley National Laboratories, published in American Council for

an Energy Efficient Economy Summary Study proceedings, p. 9.68.

91 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer

Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December

2000, Engineering Analysis, p. 4-8.

38 0000099

 EE-RM-PET-100 COMMENT 97
Indeed, as we have previously noted, there appears to be little correlation between

water efficiency and price. Figure 5 below presents CEE's analysis of costs versus

water factor. Down to a 7.0 WF, there seems to be no correlation at all: prices at

the top end of the price range are between 3 and 5 times higher than at the bottom of

the range at all water factor levels. Below a 7.0 WF, the very low-cost models

disappear, but there is still very little correlation between water factor and price. It

is clear that factors other than water efficiency are the primary determinants of price.

$2,000.00

$1,800.00

$1,600.00

$1,400.00

$1,200.00

Unit Price

$1,000.00

$800.00

$600.00

$400.00

$200.00

$-

2.00

Figure 5: Correlation Between WF and Price

3.00 4.00 5.00 6.00 7.00

Water Factor

8.00 9.00 10.00 11.00 12.00

Moreover, given the current California 30 percent market share for washers with

water factors below 8.5, and the fact that California represents about 10 percent of

national sales, the 2007 California standards would affect only about 7 percent of

U.S. washer sales. Thus, to the extent that additional manufacturing, distribution, or

other costs would be required, they would likely be very small. And any increased

costs could well be more than made up in increased revenues: "[s]tandards that

39 (1O OO

 EE-RM-PET-100 COMMENT 97
enforce higher product quality and consequent higher product costs can contribute to

enhancing the gross revenues of the industry."92

Effects on Smaller Manufacturers, Distributors, and Dealers, and

on Sales Competition in California

Two factors - the observed effects of the federal RCW energy standard, and the

current California market for high-water-efficiency RCW - strongly indicate that the

California standards are very unlikely to have an adverse effect on smaller members

of the appliance industry or on sales competition.

Recent years' innovations resulting from, or at least occurring simultaneously with,

the DOE energy standard for RCW have resulted in a proliferation of technologies

and features. In 2001, when the federal standard was adopted, there were more than

60 qualified products on the CEE product list. As of September 15, 2004, even

though the CEE qualifying criteria had become more strict, the number of qualifying

models grew to more than 130. In addition, despite the centralization that occurred

in many businesses sectors, particularly in the appliance industry, in the late

twentieth century, the number of manufacturers selling in the U.S. in the last five

years has increased significantly. There is no reason to expect the California

standards to have an adverse impact on manufacturers or on sales competition.

With regard to sales competition in California, we have previously noted that most

manufacturers, large and small, already have products available that meet the

standards, so it seems most likely that sales competition will continue to be healthy

when the standards take effect. Indeed, while in 2003 there were three

manufacturers with products at or below 5.5 WF, there were nine by mid-2004.93

92 Robert Van Buskirk, "Econometric Modeling of the Effects of Energy Efficiency Standards on

Appliance Shipments," 2000, Lawrence Berkeley National Laboratories, published in American

Council for an Energy Efficient Economy Summary Study proceedings. p. 9.381.

93 Rebecca Foster, Consortium for Energy Efficiency, memorandum to CEE Residential Appliance

Committee, August 12, 2004.

40 00001 01

 EE-RM-PET-100 COMMENT 97
C. Reductions in Available Models, or Sales, in the U.S. and

in California

Significant reductions in available models, or in sales, are likely only if

manufacturers would be unable to manufacturer enough products, or if consumers

would be unlikely to buy them. Neither contingency will occur. Based on the

availability of products in 2004 that already meet both the 2007 and the 2010

California standards, the supply of products will not constrain sales in California or

anywhere else in the U.S. Moreover, consumers will buy the products. We have

already shown that price increases will be modest, and at pages 42-49 below we

show that the standards will not result in significant changes in product performance

or features, so there is no reason to expect consumers not to buy the products.

Moreover, even if prices were to increase substantially more than we expect, sales

would probably still not be significantly affected. That is because, as DOE's own

analysis shows, the demand for clothes washers is generally inelastic:

"[H]ouseholds that currently own clothes washers will likely continue to purchase

new ones when needed, even with large price increases. For example, using the

upper bound elasticity estimate for all current clothes washer owners, a 63 percent

price increase from $400 to $650 results in only a 10 percent decrease in purchases

for this sector of the market."94 No doubt manufacturers would define a 10 percent

decline in California sales as a significant reduction, but that presumes a 63 percent

retail price increment, which far overstates the likely price increase; furthermore,

even in that worst-case scenario, a 10 percent reduction in California sales would

result in a decline of only one percent of national sales, which is well within the

range of annual sales variability.

D. Proliferation of State Standards

We are unaware of any other States that are considering RCW water factor

standards. To the extent there are any, other States would most likely adopt the

California standards. If that happened, manufacturers, distributors, and other

industry members would be able to spread any costs from standards over a larger

sales volume, thereby reducing per-unit costs. This would be a benefit to the

industry.

94 U.S . Department of Energy, 2000 Final Clothes Washer Final Rule Making-Technical Support

Document, Appendix J, p. J-45.

41 0000102

 EE-RM-PET-100 COMMENT 97
V. Potential Effects on Consumer Utility

DOE may not grant a preemption waiver if it finds "that interested persons have

established, by a preponderance of the evidence, that the State regulation is likely to

result in the unavailability in the State 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 [DOE's] finding ...."95 This

part of the Petition shows, in summary fashion, that the California standards will not

result in any reduction in consumer utility. If other parties present evidence of such

unavailability, we will respond in detail in rebuttal comments.96

A. Performance Characteristics

Other than an increase in water efficiency, there will be no significant changes in

performance characteristics, including reliability, due to the California standards.

In the last half decade, a variety of new high efficiency washers have been

introduced into the market by a growing number of manufacturers. Figure 6 shows

that as of February 2005, 78 out of the 182 Energy Star RCW models have water

factors at or below 6.0 - the second tier of the California standards. That clearly

demonstrates that the standards are feasible and that consumers will have access to

complying machines.

There is no reason to expect high-water-efficiency machines to be less reliable than

the models available today. In general, it is not unusual to see early reliability

problems in new platforms as manufacturers work the bugs out of new concepts, and

because the DOE RCW energy standard already requires substantial changes to

washer designs, especially in 2007, even without a California standard one may

expect a certain amount of initial reliability issues as new types of products are

rolled off the line for the first time. However, it seems unlikely that the California

standard would significantly add to this possibility. We have no information

suggesting otherwise, and currently-available high-water-efficiency RCW are often

high-value products ($1,000+) whose customers demand good reliability.

95 42 U.S.C. section 6297(d)(4).

96 See id. section 6297 (d)(2).

0000103

42

 EE-RM-PET-100 COMMENT 97
Figure 6: Energy Star List as of 2/16/05: MEF versus WF by Brand

ENERGY STAR Qualified Clothes Washers

(Models with WF equal or less than 8.5)

9.0

8.0

4.0

3.0

1

X 0

X

X

1.2 1.4

El

2.6

X

2.8

4, Ariston

BlAsko

Bosch

X Danby Designer

X Equator

e Eurotech

+Fisher & Paykel

-Frigidaire

-General Electric

Kenmore

Kitchen Aid

LG Electronics

Maytag

M fete

oQuioNine

Siemens

-Speed Queen

-Splendide

Staber

Summit

L Thor

X W hirlpool

3

Moreover, to the extent that manufacturers meet the California standards with

horizontal-axis technology, this would likely increase cleaning performance. Many

assessments suggest that cleaning performance is better with horizontal-axis washers

compared to typical top-loading vertical-axis washers (see pages 46-48 below).

Consumer Features

There is no evidence that the California standards will reduce the availability of

important washer features. A variety of research shows acceptance for high

efficiency washers. For example, as we explain in more detail below, extensive

national focus group and conjoint analysis work was conducted by the DOE during

the 2000 federal rulemaking process with a cross section of American consumers,

and it provided results with high levels of statistical confidence. Other consumer

43 0000104

 EE-RM-PET-100 COMMENT 97
research by the NEEA and the San Diego County Water Authority ("SDCWA")

confirms the acceptance of high-efficiency washer technology.

As part of the 2000 DOE proceeding on clothes washers, DOE conducted consumer

research regarding clothes washer feature preferences.97 Through focus groups, the

DOE established a list, shown in Table 9 below, of features and attributes considered

by consumers in evaluating washers. Few if any of the 60+ attributes would be

affected by the California RCW standards. Washers already meeting both the 8.5

and 6.0 WF levels offer a similar selection of features.

II

II

II

II

it

II

/I

97 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer

Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December

2000, App. J., p. J-46; see also id., section J.10.

44 0000105

 EE-RM-PET-100 COMMENT 97
Table 9:

Washer Attributes Listed as Important in E's Consumer Analysis

Attribute Frequency in Top 5 Percentage Out of 429

Price 241 56.2%

Energy and Water Costs Ener Efficiency 205 47.8

Capacity 187 43.5

Multiple Wash Cycle tons 152 35.4

Water Temperature lions 116 27.0

Machine Size 113 26.3

Brand 89 20.7

Load Size Options 82 19.1

Reliability 73 17.0

Quiet Operation 65 15.2

Warranty 65 15.2

Door Placement 58 13.5

Color 56 13.1

Durabili 52 12.1

Simple Settings 43 10.0

Bleach Softener Dispenser 33 7.7

Machine Design 28 6.5

User Friendly Controls 27 6.3

Wash Time 26 6.1

Delicate Cycle 26 6.1

Agitated Speed 22 5.1

Availability of Service 21 4.9

Buttons & Dials 21 4.9

Gentle Cycle 19 4.4

Extra Rinse Cycle 18 4.2

Spin Seed 18 4.2

Heavy Duty Cycle 18 4.2

Rated Highly by Consumer Reports 17 4.0

A itation side to side or up-down) 13 3.0

Self-Cleaning Filter 13 3.0

Corrects Out-of-Balance 8 1.9

Tub Material (Rastic/Metal 8 1.9

Washer/ Dryer Combo 7 1.5

Control Labels 7 1.5

End of Cycle Signal 6 1.4

Soak Option 5 1.2

Detergent Cost Savings 5 1.2

Pre-Wash 5 1.2

Soap Dispenser 5 1.2

Ability to Re-Use Rinse Water 5 1.2

Safe 5 1.2

Time Remaining Indicator 5 1.2

Clear Instructions 4 0.9

Motor Quality/Size 4 0.9

Warning Lights 4 0.9

Add Clothes Mid Cycle 3 0.7

Removable Tub 3 0.7

Gas/Electric 3 0.7

HorizontaWertical Axis 2 0.5

Unit Removable 2 0.5

Hot Water Pressure 2 0.5

Spin Length 2 0.5

Connected to Water Softener 2 0.5

Heat Own Water 2 0.5

Lid Lock 2 0.5

Hand Washables 1 0.2

Door Size 1 0.2

On Wheels 1 0.2

Electrical Compatibility 1 0.2

45 00001

 EE-RM-PET-100 COMMENT 97
Some manufacturers believe that the California standards will eliminate top-loading

access to the washtub. That assertion ignores the fact that top-loading washers using

a horizontal-axis (or other high-water-efficiency platforms) are already on the

market; one U.S. manufacturer has been selling a top-loading, horizontal-axis

washer for years, and the design is common overseas.98 Moreover, door location is

not important to the vast majority of consumers. As Table 9 shows, consumers

ranked price, energy and water efficiency, and capacity as the most important

features, with door placement listed as a "top five" attribute by only 13.5 percent of

the survey participants. (Wash tub axis orientation was even further down the list.)99

In fact, before this most recent DOE RCW rulemaking, DOE had viewed frontloading and top-loading washers as two distinct product classes deserving of

individual treatment in standards. During much of the rulemaking, however, DOE

proposed to remove the separate subcategories, believing that there was no basis for

maintaining separate classes for horizontal and vertical clothes washers.10° This

sentiment was supported by major appliance manufacturers both in the RCW

rulemaking and in a different proceeding under the Federal Trade Commission,

which in 2000 eliminated the distinction between front loading and top loading

RCW in its energy performance labeling requirements. 101, 102 Thus, DOE itself

concluded that a top-loading feature does not by itself provide significant consumer

utility.103 This conclusion seems to be borne out by the large market share claimed

by front-loading washers despite their higher price.

Moreover, many consumers prefer horizontal-axis machines. For example, in recent

surveys by the SDCWA Voucher Incentive Program, 100 percent of participants

responded that their high-efficiency washers (some of which were horizontal-axis)

98 The Energy Star list of residential washers updated 2/ 16/05 shows that the Staber HXW2304 has

a water factor of 6.3 gallons/cubic foot.

99 Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer

Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December

2000, App. J, p. J-3.

too 65 Fed. Reg. 16134 (March 27, 2000).

66 Fed. Reg. 3322 (Jan. 12, 2001).

102 65 Fed. Reg. 16134 (March 27, 2000).

,03 Nonetheless, the DOE ultimately maintained the subcategory distinction because if felt that the

two technology types had unequal potential for future efficiency improvements.

46 0000107

 EE-RM-PET-100 COMMENT 97
worked better than their old machines. 104,105 Similar results were reported by the

NEEA and its member utilities. They conducted customer satisfaction surveys as

part of their WashWise residential clothes washer program in 1997 and 1998 and

found that "[b]oth purchasers and retailers are very impressed with the RECW

[resource-efficient clothes washers]. Purchasers rated the machines extremely high

(95% to 99% very or somewhat satisfied) on a wide range of product attributes. A

total of 91 % would recommend their RECW to a friend. Retailers thought that

RECWs cleaned clothes better (88%) and were worth the money (89%) at current

incremental costs."106 In fact, customer satisfaction was so high that NEEA stopped

conducting surveys on that issue..

These extraordinarily high satisfaction levels were measured over five years ago

when the selection of high-efficiency washers and their associated features were

substantially smaller than it is today. As with the SDCWA participants, in the

NEEA surveys owners of both top-loading and front-loading high efficiency

washers were represented, but front-loading owners were a large portion of the

survey population.

A DOE demonstration study in Bern, Kansas, implemented in the mid-1990s

with cooperation from Maytag Corporation , also demonstrated substantial

customer satisfaction with horizontal-axis machines:107

Baseline washer performance data as well as customer washing

behavior were obtained from data collected on the existing washers of

more than 100 participants in this instrumented study. Following a 2-

month initial study period, all conventional washers were replaced by

high-efficiency, tumble action washers, and the experiment continued

for another 3-month period. Based on measured data from over 20,000

104 San Diego County Water Authority Residential Voucher Incentive Program, Fiscal Year 2004,

Second Quarterly Report, October 1, 2003 - December 31, 2003, p. 12.

105 San Diego County Water Authority Residential Voucher Incentive Program, Fiscal Year 2004,

"First Quarterly Report, July 1, 2003 - September 31, 2003, p. 12.

106 Executive Summary, Pacific Energy Associates, Report #E98-003, "Market Progress

Evaluation Report: WashWise Program," January 1998

(www.nwalliance.org/resources/reports/03ES.pdf).

107 DOE, Energy Division, Bern Clothes Washer Study (1998, Oak Ridge National Laboratory)

(www.energystar.gov/ia/partners/manuf res/bernstudy.pdf).

47 0000108

 EE-RM-PET-100 COMMENT 97
loads of laundry, the impact of the washer replacement on (1)

individual customers' energy and water consumption, (2) customers'

laundry habits and perceptions, and (3) the community's water supply

and waste water systems were determined and are reported..... [¶]

The data and subsequent analyses also showed that across all loads,

temperature settings, use of detergent and other additives, participants

found the cleaning performance of the h-axis technology to be generally

superior to their phase I v-axis washer irrespective of its age. .... [¶]

The study showed that, on average, participants' overall satisfaction

with the cleaning performance of the h-axis washer over their original

v-axis washer was much improved. .... [¶] Participants appeared to

be much more satisfied with the dryness of loads removed from the haxis washer than from the typical, phase I v-axis washer.

Like the other studies discussed above, the DOE Bern study was based on firstgeneration front-loading products, and substantial innovation has occurred since that

time, making the machines even more consumer-friendly.

Our final point with regard to customer utility concerns the argument that special

needs customers must have top-loading machines, or that front-loaders are less

"senior friendly" because the user has to bend over to load them. If this is truly a

large concern, it is unclear why this does not appear also to be a problem for dryers.

Moreover, because many models of front-loading washers can address the ease of

access issue by using a tilted horizontal-axis (e.g. the Maytag Neptune), or by raising

the washer onto a pedestal that can also conveniently serve as storage space, we

believe that these arguments are without merit. We also note that front-loaders are

more convenient for consumers in wheel chairs.

Sizes, Capacities, and Volumes

High-water-efficiency RCW have cabinet and tub sizes that are comparable to those

-available in less-efficient models. There is no evidence that the California standards

will restrict or significantly affect the sizes, capacities, or volumes available in

California.

Because there are very few horizontal-axis machines with tub sizes substantially

below 1.6 cubic feet, it is possible that there may be fewer products available with

small tub sizes after the 2010 6.0 WF standard takes effect, as a result of greater

sales of horizontal-axis machines. However, there is no indication that small tub

48

U000109

 EE-RM-PET-100 COMMENT 97
size is a desired attribute per se. Our understanding is that the growth in sales of

very small machines was a by-product of manufacturers' attempts to make stackable,

vertical-axis washer-drier units that fit in apartments. Larger-volume, horizontalaxis washers with the same size and stack-ability attributes are now available and

will be available in the 6.0 water factor range after the implementation of the 2010

standard. Furthermore, recent laboratory testing by Seattle Public Utilities confirms

that larger-capacity, high-efficiency washers scale down their water use quite

effectively for smaller load sizes, so potential efficiency impacts of this market

change, if it occurs, would not be counter-productive.' 08

Y L Conclusion

California has unique and compelling interests in obtaining a waiver from

preemption for its RCW standards. The standards were developed by the Energy

Commission at the direction of the California Legislature, and they are needed to

implement the State's water and energy policies and planning processes. The

California standards are the best approach for achieving substantial water savings in

residential clothes washers. They offer the most comprehensive, highestpersistence; lowest-burden solution of all of the available alternatives. The

standards create economic and environmental benefits, do not place significant

burdens on industry, and do not significantly restrict performance or features. We

respectfully request that DOE grant a waiver from preemption.

108 Personal communication with Dave Broustis, Seattle Public Utilities, August 12, 2004.

49 oilUV61i

 EE-RM-PET-100 COMMENT 97
Department of Energy

 EE-RM-PET-100 COMMENT 97
U.S. Department of Justice

Civil Division, Appellate Staff

950 Pennsylvania Avenue, N.W., Room 7260

Washington, D.C. 20530-0001

MSR:HTByron

DJ # 145-19-1120

H. Thomas Byron III Tel: (202) 616-5367

H.Thomas.Byron@usdoj.gov Fax: (202) 514-9405

September 5, 2007

c)

Ms. Cathy Catterson ^4

Clerk, U.S. Court of Appeals C) r' i C) for the Ninth Circuit C)

C 1

95 Seventh Street

San Francisco , CA 94103

Re: California Energy Commission v. Department of Energy, No. 07-71576 rt

cri

v

M%

Dear Ms. Catterson:

C)

m

c,

Please find enclosed for filing in the captioned matter, an original and four copies of the

Certified Index to the Administrative Record. One copy is being served on counsel of record listed

below, accompanied by a CD-ROM with electronic copies of the record materials.

We would appreciate it if the extra copy of this letter could be date-stamped and returned to

us in the enclosed, postage-paid envelope. Thank you for your attention to this matter.

Sincerely,

H. THOMAS BYRON III

Attorney, Appellate Staff

Civil Division

cc:

Jonathan Blees, Esq. Charles A. Samuels, Esq.

California Energy Commission Mintz Levin

1516 Ninth Street, MS 14 701 Pennsylvania Avenue, N.W., #900

Sacramento, CA 95814 Washington D.C. 20004

(916) 324-3237 (202) 434-7311

 EE-RM-PET-100 COMMENT 97
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, )

Petitioner, )

v. )

No.07-71576

)

)

DEPARTMENT OF ENERGY, )

Respondent. )

CERTIFIED INDEX TO THE ADMINISTRATIVE RECORD

rte:

C)

r--^

c•

c

I certify that to the best of my knowledge and belief the materials identified in the

attached lists constitute the complete administrative record for Docket No . EE-RM-PET-100,

which pertains to the notice of denial of the California Energy Commission Petition for

Exemption from Federal Preemption of California's Water Conservation Standards for

Residential Clothes Washers, 71 Fed. Reg. 78157 (December 28, 2006).

Executed on this 5 day of September 2007.

David E. Rodgers

Deputy Assistantecretary for Energy Efficiency

Office of Technology Development

Energy Efficiency and Renewable Energy

United States Department of Energy

00001.12

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01 10/06/051 Jonathan Blees California Energy Commission (CEC)

09/13/05 Assistant Chief Counsel 1516 Ninth Street

Sacramento, CA 95814-5512

01A Website Materials

[www.waterplan.-tirater.ca.gov/previous/bl6O-98/TOC.cfin]

California Water Plan - Bulletin 160-98

• Executive Sununary

• Front Matter

• Chapter 1- Introduction

• Chapter 2 - Current Events in California Water Management

• Chapter 3 - Water Supplies

• Chapter 4 - Urban, Agricultural, and Environmental Water Use

• Chapter 5 - Balancing Supply and Demand

• Appendix ESSA - Regional Water Budgets with Existing Facilities and Programs

• Appendix ES5B - Regional Water Budgets with Options Likely to Be Implemented

• Abbreviations/Acronyms

• Volume 1

• Front Matter

• Chapter 1- Introduction

• Appendix 1A - Comparison of 2020 Average Year Forecasts Between Bulletin 160-93 and Bulletin 160-98

• Appendix 1B - Summary of Public Comments on Draft Bulletin 160-98

• Chapter 2 - Recent Events in California Water

• Appendix 2A - Institutional Framework for Allocating and Managing Water Resources in California

• Chapter 3 - Water Supplies

• Chapter 4 - Urban, Agricultural, and Environmental Water Use

-1of25-

G

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 72006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

fwww.waterplan.water.ca.gov/previoustbl60-98frOC,cfm ]

California Water Plan - Bulletin 160 -98 (Volume 1 cont.)

® Appendix 4A - Urban and Agricultural Water Pricing

® Appendix 4B - BMP Revisions and Water Savings Assumptions

® Appendix 4C - Normalizing Urban Water Use Data

® Chapter 5 - Technology in Water Management

® Volume 2

® Front Matter

® Chapter 6 - Evaluating Options From a Statewide Perspective

® Appendix 6A - Regional Water Budgets with Existing Facilities and Programs

® Appendix 6B - Applied Water Shortages by Hydrologic Region with Existing Facilities and Programs

® Appendix 6C - Estimating a Water Management Option's Unit Cost

® Appendix 6D - Calculation of Minimum New Water Needs

® Appendix 6E - Net Water Budgets

® Appendix 6F - Land Retirement Analysis in Drainage-Impaired Areas

® Appendix 6G - Review and Evaluation of Statewide-Level Storage Facilities That Could Be Included in CALFED

® Chapter 7 - Options for Meeting Future Water Needs in Coastal Regions of California

® Appendix 7A - Options Evaluations for Coastal Regions

® Chapter 8 - Options for Meeting Future Water Needs in Interior Regions of California

® Appendix 8A - Options Evaluations for Interior Regions

® Chapter 9 - Options for Meeting Future Water Needs in Eastern Sierra and Colorado River Regions of California

® Appendix 9A - Options Evaluations for the Eastern Sierra and Colorado River Regions

® Chapter 10 - Conclusions

® Appendix 10A - Regional Water Budgets with Likely Options

® Abbreviations and Acronyms

® Glossary

® Metric Conversion Page

-2of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Feder I

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED! NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE 1OF

LETTER

01A (cont.) Website Materials

rlittp://www.waterplan.water.ca.goy/cwpuZOOS/index.cfml

California Water Plan Update 2005

® Water Plan Highlights

Volume I - Strategic Plan

® Cover pages (04.12.05)

® Introduction (04.12.05)

r A Framework for Action (04.12.05)

® California Water Today (04.12.05)

® Preparing for an Uncertain Future (04.12.05)

® Implementation (04.12.05)

® Reference

® Back Cover

Volume 2 - Resource Management Strategies

® Cover

® Table of Contents

® Introduction

® Agricultural Land Stewardship

® Agricultural Water Use Efficiency

® Conjunctive Management and Groundwater Storage

® Conveyance

-3of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number : EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

Flittp://www.watei-plan .water.ca.gov/cwpu2OO5/index.cfnil

California Water Plan Update 2005 - (Volume 2 cont.)

® Desalination

• Drinking Water Treatment and Distribution

® Economic Incentives (Loans, Grants, and Water Pricing)

® Ecosystem Restoration

® Floodplain Management

® Groundwater Remediation /Aquifer Remediation

® Matching Water Quality to Use

® Pollution Prevention

® Precipitation Enhancement

® Recharge Area Protection

® Recycled Municipal Water

• Surface Storage -- CALFED

• Surface Storage -- Regional/Local

• System Reoperation

• Urban Land Use Management

e Urban Runoff Management

• Urban Water Use Efficiency

• Water Transfers

• Water-Dependent Recreation

® Watershed Management

• Other Strategies

® References

• Back Cover

-4of25-

 EE-RM-PET-100 COMMENT 97
RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closin Date: A ril 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

[http://www.waterplan.water.da.gov/cwl2t12OQ.5/index.cfml

California Water Plan Update 2005

® Volume 3 - Regional Reports

o Cover

• Table of Contents

o State Summary

o North Coast

o San Francisco Bay

o Central Coast

o South Coast

o Sacramento River

• San Joaquin River

® Tulare Lake

• North Lahontan

• South Lahontan

• Colorado River

® Sacramento - San Joaquin Delta

• Mountain Counties

® References

o Back Cover

• Volume 4 - Reference Guide

• Cover

o Table of Contents

o Introduction Editors Message

• Background Cover

o A California Water Chronology (by the Water Education Foundation)

-5of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

[http://www.waterplan.water.ca.gov/cwpu2OO5/index.cfm]

California Water Plan Update 2005 - (Volume 4 cont.)

• A Look Back at Past California Water Plans

o Bay Delta Standards Contained in D- 1641

o Selected Task Force and Advisory Panels

o Selected Water Prices in California

• Water Allocation, Use and Regulation in California

® What's So Special About Special Districts? A Citizen's Guide to Special Districts in California (Third Edition)

(by Kimia Mizany & April Manatt, CA Senate Local Government Committee)

® Crop Water Use Cover

• Preface

Central Valley Crop Classification Processing Using Remote Sensing and GIS Technologies (by Jeff Milliken, Mariette Shin,

David Hansen, Charles Johnson, Michael Sebhat, Joel Zander - USBR Mid Pacific Region)

® CUP (Consumptive Use Program) Model (by Morteza Orang, Richard Snyder, Scott Matyac, DWR and UC Davis)

® Evaporation Research -- A Review and Interpretation (by C.M. Burt, A.J. Mutziger, R.G. Allen, and T.A. Howell)

® Evapotranspiration and Relative Contribution by the Soil and the Plant (by Theodore Hsiao and Liukang Xu, UC Davis)

• Evapotranspiration from a Satellite-Based Surface Energy Balance for the Snake Plain Aquifer in Idaho

(by Richard G. Allen, Anthony Morse, Masahiro Tasumi, Ricardo Trezza, Wim Bastiaanssen,

James L. Wright, and William Kramber)

C

P

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 EE-RM-PET-100 COMMENT 97
RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

[littp://www.waterp lan.water.ca.gov/cwpu2OO5/l*ndex.cfnij

California Water Plan Update 2005 - (Volume 4 cont.)

• Limits to the Productivity of Water in Crop Production (by Andrew Keller and David Seckler)

® Model for Estimating Evaporation and Transpiration from Row Crops (by Francesca Ventura, Ben A. Faber, Khaled M. Bali,

Richard L. Snyder, Donatella Spano, Pierpaolo Duce, and Kurt F. Schulbach) originally published in Journal of Irrigation and

Drainage Engineering, American Society of Civil Engineers. Nov/Dec 2001. Obtained from www.pubs.asce.org.

® The Promise of Regulated Deficit Irrigation in California's Orchards and Vineyards (by David Goldhamer and Elias Fereres,

UC Davis, IAS-CSIC and University of Cordoba, Spain)

• SIMETAW (Simulation of Evapotranspiration of Applied Water) (by Richard Snider, Morteza Orang, Shu Geng, Scott Matyac

and Sara Sarreshteh, UC Davis and DWR)

® Data and Analytical Tools Cover

• Future Quantitative Analysis for California Water Planning (by Ken Kirby, Active Curiosity Inc.)

• Strategic Analysis Framework To Guide Future Development of Analytical Tools for Managing Water in California. Draft

Report Summary. (by California Water and Environment Modeling Forum)

• Survey of Irrigation Methods in California in 2001 (by Morteza Orang, Richard Snider and Scott Matyac, DWR and UC

Davis)

® Quantified Scenarios of 2030 Water Demand (by David Groves, Pardee RAND Graduate School and Scott Matyac, and Tom

Hawkins, DWR)

• Environment Cover

® Applying the Public Trust Doctrine to River Protection (By Jan S. Stevens)

• Considering Water Use Efficiency for the Environmental Sector (by Jeff Deason, Jessica Fast, Lisa Scroeer, Brian Turner and

Renske van Staveren, UC Berkeley)

• Recommendations Regarding Scenarios and Application of Environmental Water "Demands" in the State Water Plan Update &

Quantification of Unmet Environmental Objectives in State Water Plan 2003 Using Actual Flow Data for 1998, 2000, and 2001

(by Environmental Defense)

-7of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01 A (cont.) Website Materials

[http://www.watex-plan.water.ca.gov/cwpu2005/l*ndex.cfml

California Water Plan Update 2005 - (Volume 4 cont.)

• Environmental Justice Cover

• Environmental Justice in California Government (by Office of Planning and Research)

• General Plan Guidelines Chapter 2: Sustainable Development and Environmental Justice (by Office of Planning

and Research)

• Global Climate Change Cover

® Climate Change and California Water Resources: A Survey and Summary of the Literature

(by Michael Kiparsky and Peter H. Gleick, Pacific Institute for Studies in Development, Environment and Security)

® Accounting For Climate Change (by Maurice Roos, DWR)

• Hydrology Cover

® California River Indices

® Frequency of a 100 Year Flood

• Major Floods Since 1950

• Severity of Extreme Droughts in Sacramento and San Joaquin Valley

® Infrastructure Cover

® California's Major Water Projects

® California Surface Reservoirs

• CALFED Bay-Delta Surface Storage Investigations Progress Report, April 2005

• (by DWR, USBR, and California Bay-Delta Authority) Final Report now available at DWR Surface Storage Investigations

website.

® Hydropower Projects Re-licensing

-8of25-

C)

 EE-RM-PET-100 COMMENT 97
RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

OIA (cont.) Website Materials

lhttp://www.waterplan.water.ca.gov/cwt)u2005/index.cfnii

California Water Plan Update 2005 - (Volume 4 cont.)

o Landscape Water Use Cover

® Urban Landscape Evapotranspiration

• (by Richard L. Snyder, University of California, Atmospheric Science, Davis, California, and Simon Eching, DWR)

o Vegetative Assessment in an Urban Environment

• (by Alan Walters, Agricast)

® Legislation Cover

• Recent Water Legislation (by DWR Legislative Affairs Office)

o Water Bonds

o Water Plan Legislation

® Work Plan for Meeting Legal Requirements for the California Water Plan

® Litigation Cover

o Joint Statement on the Monterey Amendments Litigation (by DWR, Central Coast Water Authority, State Water Contractors,

Planning and Conservation League, Plumans County Flood Control and Water Conservation District, and the Citizens'

Planning Association of Santa Barbara County)

® Summary of Significant Litigation 1998 - 2005 (by DWR, Office of Chief Counsel)

-9of25-

 EE-RM-PET-100 COMMENT 97
RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number : EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

01A (cont.) Website Materials

[http://www.waterl2lan.water.ca.gov/cwpu2005/index.cfml

California Water Plan Update 2005 - (Volume 4 cont.)

® Planning Cover

® "Addressing California's Uncertain Water Future by Coordinating Long-Term Land Use and Water Planning: Is a Water

Element in the General Plan the Next Step?" (by Ryan Waterman. Originally published in Ecology Law Quarterly, Volume 31,

Issue I at page 117, Copyright (c) 2004 by the Regents of the University of California.)

• Customer & Stake Holders Survey for CWP Update 2005

® Financing Strategies and Guidelines for Funding Water Resource Projects (by David Kracman, Schlumberger Water Services)

o Future Food Production and Consumption in California Under Alternative Scenarios (by Henrich Brunke, Richard Howitt and

Daniel Sumner, University of California Agricultural Issues Center)

• Future Scenarios Presented in Water Plan Update 2005

• Involving Stakeholders In Irrigation and Drainage District Decisions: Who, What, When, Where, Why, How

• (by Lisa Beutler, Center for Collaborative Policy)

Planning For Extreme and Prolonged Drought Conditions

• Planning Framework for Water Plan Update

• Strategic Planning Guidelines (by Department of Finance)

• Tribal Consultation Cover .

® Interim Tribal Consultation Guidelines, Supplement to General Plan Guidelines (by Office of Planning and Research

• Water Quality Cover

o California Nonpoint Source Encyclopedia (prepared for SWRCB, by Tetra Tech, Inc.)

• Californians Without Safe Water (by Monique Wilber)

• California Water Quality in 2004 (written and edited by John Andrew, DWR)

® Glossary

® Reference

o Back Cover

-10of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

)FMS Docket ID: EERE-2006-STD-0124

Closin Date : A riiI 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

02 12/07/05/ Jonathan Blees California Energy Commission (CEC)

12/05/05 Assistant Chief Counsel 1516 Ninth Street

Sacramento , CA 95814-5512

02A 71FR6022 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/02/06/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers; Petition for exemption.

[Federal Register Notice 71FR6022 - 71FR6025]

03 03/27/06! Jonathan Blees California Energy Commission (CEC)

03/27/06 Assistant Chief Counsel 1516 Ninth Street, MS-14

Sacramento, CA 95814-5512

04 03/28/06/ Julie Leimbach Sierra Nevada Alliance

03/28/06 Community Groups Coordinator P. O. Box 7989

South Lake Tahoe, CA 96158

05 03/28/06/ Daniel Carney Marin Municipal Water District

03/28/06 Water Conservation Manager 220 Nellen Avenue

Corte Madera, CA 94925

06 03/28/06/ Chris DeGabriele North Marin Water District

03/28/06 General Manager 999 Rush Creek Place

Post Office Box 146

Novato, CA 94948

07 03/28/06/ Jerry Jordan California Municipal Utilities Association (CMUA)

03/28/06 Executive Director 915 L Street, Suite 1460

Sacramento , CA 95814

-11of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 72006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

08 03/29/06/ Stephen T. Guthrie EnerPath

03/29/06 President 1758 Orange Tree Lane

Redlands, CA 92374

09 03/30/06/ Kathi Sheehan City of Yreka

03/29/06 Special Projects Manager, 701 Fourth Street

Water Conservation Coordinator Yreka, CA 96097

10 03/30/06/ Craig Perkins City of Santa Monica

03/29/06 Director of Environmental and 1685 Main Street, Suite 116

Public Works Management Department PO Box 2200

Santa Monica, CA 90407-2200

11 03/30/06/ Reginald A. Lamson Victor Valley Water District

03/30/06 District Engineer/Acting General Manager 17185 Yuma Street

Victorville, CA 92392-5887

12 03/30/06/ Richard W. Hansen Three Valleys Municipal Water District

03/28/06 General Manager 1021 E. Miramar Avenue

Claremont, CA 91711-2052

13 03/30/06/ Jo Lynne Russo-Pereyra Cucamonga Valley Water District

03/30/06 Assistant General Manager for External Affairs 10440 Ashford Street

Rancho Cucamonga, CA 91729-0638

14 03/30/06/ Jeffrey Kightlinger Metropolitan Water District of Southern California (MWD)

03/29/06 General Manager Box 54153

Los Angeles, CA 90054-0153

- 12of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number : EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date : April l 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

15 03/30/06/ August A. Caires Padre Dam Municipal Water District

03/30/06 General Manager 9300 Fanita Parkway

Santee, CA 92071

16 03/30/06/ William Pecsi Foothill Municipal Water District (FMWD)

03/21/06 General Manager 4536 Hampton Road, P.O. Box 686

La Canada Flintridge, CA 91012-0686

17 03/31/06/ J. B. Hoyt Whirlpool Corporation

03/31/06 Director, Government Relations 2000 M 63, Mail Drop 3005

Benton Harbor, IM 49022

18 03/31/06/ Tim D. Anderson Sonoma County Water Agency

03/31/06 Government Affairs Coordinator P.O. Box 11628

Santa Rosa, CA 95406

19 04/05/06/ James H. Bond San Diego County Water Authority

04/05/06 Chairman 4677 Overland Avenue

San Diego, CA 92123-1233

20 04/04/06/ Bruce Michael Banks Santa Fe Irrigation District

03/21/06 P.O. Box 409

Rancho Santa Fe, CA 92067-0409

21 04/04/06/ Rob Whipple Elsinore Valley Municipal Water District

04/04/06 Conservation Specialist P.O. Box 3000

31315 Chaney Street

Lake Elsinore, CA 92531

-13of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7,2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

22 04/05/06/ Stephen T. Conley Long Beach Water Department

03/30/06 President of the Board of Water Commissioners 1800 East Wardlov Road

Long Beach, CA 90807-4994

23 04/05/06/ Robert Apodaca Central Basin Municipal Water District

03/31/06 President 17140 S. Avalon Blvd, Suite 210

Carson, CA 90746-1296

24 04/05/06/ William A. Baker West Basin Municipal Water District

03/31/06 President 17140 S. Avalon Blvd, Suite 210

Carson, CA 90746-1296

25 04/05/06/ Kent Knutson The Home Depot

04/04/06 Vice President, Government Relations 101 Constitution Avenue, NW, Suite 800 West

Washington, DC 20001

26 04/05/06/ James D. Kuykendall, PE Channel Islands Beach Community Services District

03127/06 General Manager 353 Santa Monica Drive

Channel Islands Beach, CA 93035-4473

27 04/05/06/ Steve Mack City of Santa Barbara

04/04/06 Water Resources Manager Public Works Department

630 Garden Street

P.O. Box 1990

Santa Barbara, CA 93102-1990

28 04/05/06/ Daniel Terheggen Multi-housing Laundry Association (MLA)

04/05/06 President 1500 Sunday Drive, Suite 102

Raleigh, NC 27607

-14of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 72006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

29 04/05/06/ Ken Weinberg San Diego County Water Authority

04/05/06 Director of Water Resources 4677 Overland Avenue

San Diego, CA 92123-1233

30 04/06/06/ Richard Bollard Fisher & Paykel Appliances

04/05/06 78 Springs Road, East Tamaki

P.O. Box 58 732, Greenmount

Auckland, New Zealand

31 04/06/06/ Steven Rosenstock, P.E. Edison Electric Institute (EEI)

04/06/06 Manager, Energy Solution 701 Pennsylvania Avenue, NW

Washington, DC 20004-2696

[See comment #78 for withdrawal comment]

32 04/03/06/ Gina Garbolino City of Roseville

04/03/06 Mayor City Council

311 Vernon Street

Roseville, CA 95678-2649

33 04/03/06/ Dr. Peter H. Gleick Pacific Institute for Studies in Development, Environment, and

04/03/06 President Security

654 13th Street, Preservation Park

Oakland, CA 94612

34 04/06/06/ Dr. Brian Brady Rancho California Water District (RCWD)

04/06/06 General Manager 42135 Winchester Road

P.O. Box 9017

Temecula, CA 92589-9017

35 04/06/06/ Stephen R. Yurek Air-Conditioning and Refrigeration Institute (ARI)

04/06/06 General Counsel, 4100 N. Fairfax Drive, Suite 200

Vice President, Policy and Public Affairs Arlington, VA 22203

-15of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

36 04/06/06! Kyle Pitsor National Electrical Manufacturers Association (NEMA)

04/06/06 Vice President, Government Relations 1300 North 17th Street, Suite 1847

Rosslyn, VA 22209

37 04/06/06/ Timothy C. Jochem Upper San Gabriel Valley Municipal Water District

04/06/06 General Manager 113 10 Valley Boulevard

El Monte, CA 91731

38 04/06/06/ Joseph M. Mattingly Gas Appliance Manufacturers Association, Inc. (GAMA)

04/06/06 Vice President, 2107 Wilson Boulevard, Suite 600

Secretary and General Counsel Arlington, VA 22209

39 04/06/06/ Steve Soghomonian City of Burbank

04/06/06 Account Manager Burbank Water and Power

P.O. Box 631

Burbank, CA 9 1 503-063 1

40 04/06/06/ David Bolland Association of California Water Agencies (ACWA)

04/04/06 Senior Regulatory Advocate 910 K Street, Suite 100

Sacramento, CA 95814-3577

41 04/07/06/ Noah Horowitz Natural Resources Defense Council (NRDC)

04/06/06 Senior Scientist I 1 l Sutter Street, 20th Floor

San Francisco, CA 94104

Ronnie Cohen

Senior Policy Analyst

42 04/07/06/ Dennis Erdman Crescenta Valley Water District

04/06/06 General Manager 2700 Foothill Boulevard

La Crescenta, CA 91214

16of25-

C,

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 72006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

43 04/07/06/ Donald R. Kendall, Ph.D., P.E. Calleguas Municipal Water District

04/06/06 General Manager 2100 Olsen Road

Thousand Oaks, CA 91360-6800

44 04/07/06/ Gary B. Fernstrom Pacific Gas and Electric Company (PG&E)

04/06/06 Mail Code N6G, P.O. Box 770000

San Francisco, CA 94177

45 04/07/06/ David Weaver City of Glendale, California

04/06/06 Mayor 613 East Broadway, Suite 200

Glendale, CA 9 1 206-439 1

46 04/07/06/ Ronald F. Deaton Department of Water and Power the City of Los Angeles

04/06/06 General Manager Box 51111

Los Angeles, CA 90051-5700

47 04/07/06/ Charles B. Hamilton Carpinteria Valley Water District

04/07/06 General Manager/Secretary 1301 Santa Ynez Avenue, P.O. Box 578

Carpinteria, CA 93014

48 04/07/06/ Paul D. Jones II Irvine Ranch Water District (JRWD)

04/06/06 General Manager 15600 Sand Canyon Avenue, P.O. Box 57000

Irvine, CA 92619-7000

49 04/07/06/ John Rossi Western Municipal Water District

04/06/06 General Manager 450 Alessandro Blvd.

Riverside, CA 92508

50 04/07/06/ Phil Manthei Alliance Laundry Systems LLC

04/07/06 Sr. Staff Engineer, Agency/Codes Approval Shepard Street, P.O. Box 990

Ripon, WI 54971-0990

- 17of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number : EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date : April 72006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

51 04/07/06/ John K. Hawks California Water Association

04/07/06 Executive Director 601 Van Ness Avenue, Suite 2047

Mail Code #E3-608

- San Francisco, CA 94102-3200

52 04/07/06/ David Calabrese Association of Home Appliance Manufacturers (AHAM)

04/07/06 Vice President, Government Relations 1111 19`h Street, NW, Suite 402

Washington, DC 20036

53 04/07/06/ David P. Steiner Maytag Corporation

04/07/06 Vice President Government Affairs 701 Pennsylvania Avenue NW, Suite 750

Washington, DC 20005

54 04/07/06/ John DiStasio Sacramento Municipal Utility District (SMUD)

04/06/06 Assistant General Manager P.O. Box 15830

Energy Delivery and Customer Services Sacramento, CA 95852-1830

55 04/07/06/ Earl F. Jones General Electric Consumer & Industrial

04/07/06 Sr. Counsel, Government and Industrial Relations Appliance Park 2-225

[Response of GE Consumer & Industrial to the CEC's Louisville, KY 40225

petition]

56 04/07/06/ Phil Brun City of Napa Water Division

04/07/06 General Manager , Water Division 1340 Clay Street

Napa, CA 94559

57 04/07/06/ Paul Piraino Alameda County Water District (ACWD)

04/07/06 General Manager 43885 South Grimmer Boulevard, P.O. Box 5110

Fremont, CA 94537-5 1 1 0

0

C

0

-18of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

58 04/07/06/ David C. McCollom Olivenhain Municipal Water District

04/07/06 General Manager 1966 Olivenhain Road

Encinitas, CA 92024

59 04/07/06/ Walter J. Bishop Contra Costa Water District (CCWD)

04/07/06 1331 Concord Avenue, P.O. Box H2O

Concord, CA 94524

60 04/07/06/ Brian A. Ragland City of Downey

04/07/06 11111 Brookshire Avenue

Downey, CA 90241

61 04/07/06/ Mary Ann Dickinson California Urban Water Conservation Council

04/07/06 Executive Director 455 Capitol Mall, Suite 703

Sacramento, CA 95814

62 04/07/06/ William E. Bloomfield, Jr. Web Service Company (WEB)

03/30/06 President 3690 Redondo Beach Ave.

Redondo Beach, CA 90278

63 04/11/06/ Frances Spivy-Weber Mono Lake Committee

03/28/06 Executive Director, Policy P.O. Box 29

Hwy 395 and Third Street

Lee Vining, CA 93541

64 04/11/06/ Mariann Long City of Anaheim

03/28/06 Business and Community Programs Manager Public Utilities Department Business and Community Programs

201 S. Anaheim Boulevard, Suite 801

Anaheim, CA 92805

-19of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

65 04/11/06/ Miles A. Ferris City of Santa Rosa

03/28/06 Director of Utilities Utilities Department

Water Conservation Division

69 Stony Circle

Santa Rosa, CA 95401

66 04/11/06/ Anthony J. Pack Eastern Municipal Water District (EMWD)

03/29/06 General Manager P.O. Box 8300

Perris, CA 92572-8300

67 04/11/06/ Shauna Lorance San Juan Water District

03/30/06 General Manager P.O. Box 2157

Granite Bay, CA 95746

68 04/11/06/ Zigmund Vays Community Enhancement Services

03/30/06 President 1335 N. La Brea Ave., Suite 3

Los Angeles, CA 90028

69 04/11/06/ Dan Masnada Castaic Lake Water Agency

03/31/06 General Manager 27234 Bouquet Canyon Road

Santa Clarita, CA 91350-2173

70 04/11/06/ Kevin P. Hunt Municipal Water District of Orange County

04/03/06 General Manager 10500 Ellis Avenue

P.O. Box 20895

Fountain Valley, CA 92728

71 04/11/06/ Scott Heule Department of Water and Power

04/04/06 Assistant General Manager City of Big Bear Lake

41972 Garstin Drive

P.O. Box 1929

Big Bear Lake, CA 92315

-20of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

72 04/13/06/ Kim Krause City of Del Mar

03/21/06 Finance Director/Treasurer 1050 Camino Del Mar

Del Mar, CA 92014-2698

73 04/13/06/ Mark Watton Otay Water District

03/21/06 General Manager 2554 Sweetwater Springs Boulevard

Spring Valley, CA 91978-2096

74 04/13/06/ John B. Linden Helix Water District

03/22/06 President 7811 University Avenue

Board of Directors La Mesa, CA 91941-4927

75 04/13/06/ Flordeliza Misra Dublin San Ramon Services District

03/29/06 Acting Operations Manager 7051 Dublin Boulevard

Dublin, CA 94568

76 04/04/06/ George V. Voinovich United States Senate

04/04/06 United States Senator 524 Hart Senate Office Building

Washington, DC 20510-3504

77 04/13/06/ Daniel Terheggen Consolidated Smart Systems

04/05/06 President 620 West 135th Street

Gardena, CA 90248

78 05/09/06/ Steven Rosenstock, P.E. Edison Electric Institute (EEl)

Manager, Energy Solution 701 Pennsylvania Avenue, N.W.

Washington, DC 20004-2696

[Continent Withdrawn]

79 05/15/06/ Jonathan Blees California Energy Commission (CEC)

05/15/06 Assistant Chief Counsel 1516 Ninth Street

Sacramento, CA 95814-5512

-21 of25-

 EE-RM-PET-100 COMMENT 97
RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

80 05/17/06/ Christopher A. Korst Rent-A-Center, Inc. (RAC)

04/14/06 Senior Vice President 5700 Tennyson Parkway

General Counsel & Secretary Third Floor

Plano, TX 75024

81 05/26/06/ David Calabrese Association of Home Appliance Manufacturers (AHAM)

05/25/06 Vice President, Government Relations 1111 19th Street, NW, Suite 402

Washington, DC 20036

82 07/26/06/ Larry Farwell Sacramento Water Forum

07/26/06 Consultant 2476 San Marcos Pass Road

Santa Barbara, CA 93105-9720

83 11/20/06/ Minutes to the meeting with Whirlpool

11/14/06

84 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/12/28/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers

[Federal Register Notice 71 FR 78157 December 28, 2006]

85 01/30/07/ Jonathan Blees California Energy Commission (CEC)

01/29/07 Assistant Chief Counsel 1516 Ninth Street

Sacramento , CA 958 1 4-55 12

[CEC request for Reconsideration]

86 02/20/07/ David B. Calabrese Association of Home Appliance Manufacturers (AHAM)

02/16/07 Vice President 111 119th Street, NW, Suite 402

Government Relations Washington, DC 20036

[AHAM's comments in response to CEC's request for

Reconsideration]

-22of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

87 66FR3314 Energy Conservation Program for Consumer Products: Clothes Washer Energy Conservation Standards; Final rule.

/01/12101

[Federal Register Notice 66FR3314 - 66FR3333]

88 Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers

/12/2000

[Environmental Assessment and Regulatory Impact Analysis]

89 Regulatory Impact Analysis For Proposed Energy Conservation Standards For Residential Clothes Washers

/09/2000

90 Senate Report Number 100-6, 100th Congress ISt Session (1987)

/01/6/87

[This is a Senate report accompanying NAECA, which DOE cites in developing its interpretation of the Statute]

91 Douglass L. Faulkner U.S. Department of Energy (DOE)

/11/18/05 Acting Assistant Secretary Energy Efficiency and Renewable Energy

1000 Independence Avenue, SW

Washington, D.C. 20585-0121

[Letter from Douglass Faulkner to Jonathan Blees stating

that the petition failed to comply with requirements set out

in 10 CFR 430.42c]

92 Douglass L. Faulkner U.S. Department of Energy (DOE)

/12/23/05 Acting Assistant Secretary Energy Efficiency and Renewable Energy

1000 Independence Avenue, SW

Washington, D.C. 20585-0121

[Letter from Douglass Faulkner to Jonathan Blees stating

that DOE has accepted the California 's petition filing

signed by Richard Moorer]

C.

C)

C.1

0

-23of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

93 Richard F. Moorer U.S. Department of Energy (DOE)

/04/14/06 Deputy Assistant Secretary Technology Development

Energy Efficiency and Renewable Energy

1000 Independence Avenue, SW

Washington, D.C. 20585-0121

[Letter from Richard Moorer to Jonathan Blees stating the

comment period for the petition has closed and invite the

CEC to provide rebuttal statement to the comments DOE

has received]

94 United States Courts of Appeals

/04/20/07 For The Ninth Circuit Civil Appeals Docketing Statement

[California Energy Commission (CEC) Petitioner, v. United

States Department of Energy (DOE) and Samuel W.

Bodman, Secretary of Energy. CEC petitions the court for

review of the Denial by DOE]

95 06/04/07 01/10/07 -From Christopher Calamita (DOE) to Jonathan Blees U.S. Department of Energy (DOE)

(CEC) Technology Development

0 1/26/07- From Christopher Calamita to Chester Hong (CEC) Energy Efficiency and Renewable Energy

01/29/07- From Jonathan Blees to Michael McCabe (DOE) 1000 Independence Avenue, SW

03/01/07- From Christopher Calamita to Jonathan Blees (CEC)

Washington, D.C. 20585-0121

04/18/07- From Jonathan Blees to Bryan Berringer (DOE)

04/19/07- From Christopher Calamita to Jonathan Blees (CEC)

[E-mail communication between the Department of Energy

and California Energy Commission post finalization]

-24of25-

 EE-RM-PET-100 COMMENT 97
RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

Preemption of California's Water Conservation Standards for Residential Clothes Washers

Docket Number: EE-RM-PET-100

FDMS Docket ID: EERE-2006-STD-0124

Closing Date: April 7, 2006

COMMENT DATE

NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF

LETTER

96 United States Courts of Appeals

/06/18/07 For The Ninth Circuit Civil Appeals Docketing Statement.

No. 07-71576

[California Energy Commission (CEC) Petitioner, v. United

States Department of Energy (DOE) and Samuel W.

Bodman, Secretary of Energy. Response of Petitioner

California Energy Commission (CEC) in opposition to

respondent Department of Energy's (DOE) Motion to

Dimiss]

FDMS Web Submissions: EERE-2006-STD-0124

FDMS 0006 This was a Federal Register Notice that was posted in the wrong docket.

The Federal Register was withdrawn and attached to the proper docket within FDMS.

FDMS 0007 This was a Federal Register Notice that was posted in the wrong docket.

The Federal Register was withdrawn and attached to the proper docket within FDMS.

FDMS 0008 71FR35419 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/06/20/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers; Notice.

[Federal Register Notice 71FR35419 - 71FR35420]

-25of25-

 EE-RM-PET-100 COMMENT 97
CERTIFICATE OF SERVICE

I hereby certify that I have, this 5th day of September, 2007, served one

copy of the foregoing Certified Index To The Administrative Record by sending it

by Federal Express for delivery the next business day to the counsel listed below:

Jonathan Blees, Esq.

California Energy Commission

1516 Ninth Street, MS 14

Sacramento , CA 95814

(916) 324-3237

Charles A. Samuels, Esq.

Mintz Levin

701 Pennsylvania Avenue, N.W., #900

Washington D.C. 20004

(202) 434-7311

0000138

 EE-RM-PET-100 COMMENT 97
Federal Register /Vol, 71, No. 249 /Thursday, December 28, 2006 /Notices 78157

DEPARTMENT OF ENERGY

Office of Energy Efficiency and

Renewable Energy

(Docket No. EE-RM-PET-100]

Energy Efficiency Program for

Consumer Products: California Energy

Commission Petition for Exemption

From Federal Preemption of

California's Water Conservation

Standards for Residential Clothes

Washers

AGENCY: Office of Energy Efficiency and

Renewable Energy, Department of

Energy.

ACTION: Notice of Denial of a Petition for

Waiver from Federal Preemption.

SUMMARY: The Department of Energy

(hereafter "DOE") announces its denial,

and the reasons therefore, of the

California Energy Commission's Petition

for Exemption from Federal Preemption

of California's Water Conservation

Standards for Residential Clothes

Washers (hereafter "California

Petition").

DATES: A request for reconsideration of

the denial must be received by DOE not

later than January 29, 2007.

ADDRESSES : A request for

reconsideration must submitted,

identified by docket number EE-RMPET-100, by one the following methods:

o Mail: 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. Please submit one signed original

paper copy.

o Hand Delivery/Courier: Ms. Brenda

Edwards-Jones, U.S. Department of

Energy, Building Technologies Program,

Room 1J-018, 1000 Independence

Avenue, SW., Washington, DC 20585-

0121.

Instructions: All submissions received

must include the agency name and

docket number for this proceeding.

FOR FURTHER INFORMATION CONTACT:

Bryan Berringer, U.S. Department of

Energy, Office of Energy Efficiency and

Renewable Energy, Building

Technologies Program, EE-2J, 1000

Independence Avenue, SW.,

Washington, DC 20585-0121, (202) 586-

0371, or e-mail:

Bryan.Berringer®ee.doe.gov; or Francine

Pinto, Esq., or Chris Calamita, Esq., U.S.

Department of Energy, Office of the

General Counsel, GC-72, 1000

Independence Avenue, SW.,

Washington, DC 20585, (202) 586-7432

or (202) 586-1777, e-mail:

Francine.Pinto@hq.doe.gov or

Christopher.Calamita@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

1. Summary of Today's Action

II. Background

A. Energy Conservation Standards under

EPCA

B. Preemption of State Standards

1. DOE Energy Conservation Standards for

Residential Clothes Washers

2. Waiver of Preemption

3. Legislative History

C. California Petition

III. Effective Date Requirements of EPCA

N. Analysis of the California Petition

A. Necessity of State Regulation to Address

Unusual and Compelling State Water

Interests

1. Interests Substantially Different in

Nature and Magnitude from those

Prevailing in the United States Generally

a. Consideration of "U.S. generally"

b. Substantially different in nature or

magnitude-analysis of California's

water interests

2. Costs, Benefits, and Burdens of the State

Regulation as Compared to Alternative

Measures

a. Cost benefit analysis

b. Analysis of alternatives

3. Unusual and Compelling State Water

Interests

B. Impacts of California's Standards on

Manufacturing, Marketing, Distribution,

Sale or Servicing

1. Manufacturing and Distribution Costs

2. Effect on Competition and Smaller

Entities

3. Redesign and Production

4. Proliferation of State Standards

5. Significant Impact on Manufacturing,

Marketing, Distribution, Sale, or

Servicing

C. Availability of Product Performance

Characteristics and Features

1. Top-Loading Residential Clothes

Washers

2. Other Product Classes

V. Denial

VI. Approval of the Office of the Secretary

1. Summary of Today's Action

DOE is denying a petition submitted

by the California Energy Commission

(CEC) for a waiver from Federal

preemption of its residential clothes

washer regulation contained in section

1605.2(p)(1) of the California Code of

Regulations.' DOE is denying the

petition for three separate and

independent reasons. First, DOE is

denying the petition because DOE does

not have the statutory authority to

prescribe a rule for California that

would become effective by January 1,

2007, the first of two compliance dates

contained in Title 20, section

r The Appliance Efficiency Regulations,

(California Code of Regulations, Title 20, sections

1601 through 1608) dated January 2006, were

adopted by the California Energy Commission on

October 19, 2005, and approved by the California

Office of Administrative Law on December 30,

2005. The Appliance Efficiency Regulations include

standards for both federally-regulated appliances

and non-federally-regulated appliances.

1605.2(p)(1) of the California Code of

Regulations. Section 327(d)(5)(A) of the

Energy Policy and Conservation Act

(Pub. L. 94-163, as amended) (EPCA)

requires that a final rule prescribed by

DOE to grant a petition such as the

California Petition must have an

effective date at least three years

following publication of the final rule.

(42 U.S.C. 6297(d)(5)(A)) The California

Petition does not comply with the

effective date criteria in EPCA, and CEC

has not petitioned for an effective date

other than that provided in the

California regulation. CEC has provided

information only in the context of the

compliance dates of the California

regulation, and has not provided the

information necessary for DOE to

promulgate a rule with an effective that

would be compliant under EPCA, i.e., a

rule with an effective date three years

following the date of issuance.

Therefore, DOE denies the California

Petition's waiver request.

Second, CEC has not established by a

preponderance of the evidence that the

State of California has unusual and

compelling water interests, a condition

required by EPCA for DOE to grant

California a waiver from Federal

preemption. (42 U.S.C. 6297(d)(1)(B))

CEC did not provide sufficient support

for what CEC alleges to be the costs and

benefits of the California regulation

presented in the petition. Further, CEC

did not provide an appropriate analysis

of non-regulatory alternatives for

comparison to the California regulation.

Without support for the likely costs and

benefits associated with the California

regulation and an appropriate

alternatives analysis, DOE was unable to

evaluate if the California regulation is

"preferable or necessary" as compared

to non-regulatory alternatives, which is

a required showing in order for DOE to

determine that an unusual and

compelling water interest exists. (42

U.S.C. 6297(d)(1)(C)(ii)) Therefore, DOE

cannot find that the California

regulation is preferable or necessary as

compared to non-regulatory alternatives,

and denies the California Petition's

waiver request.

Third and finally, interested parties

demonstrated by a preponderance of

evidence that the State of California

regulation would likely result in the

unavailability of a class of residential

clothes washers in California.

Commenters submitted to DOE

information demonstrating that the 2010

water factor (WF) standard would likely

result in the unavailability of top-loader

residential clothes washers in

California. Thus, even if DOE had the

authority to ignore or override the first

effective date of the California

0X00139

 EE-RM-PET-100 COMMENT 97
78158 Federal Register /Vol. 71, No. 249/Thursday, December 28, 2006/Notices

regulation (i.e., 2007) and promulgate a

rule that complied with the EPCA

requirement that the rule not take effect

for another three years, the rule would

violate EPCA in another way, i.e., it

would mandate the 6.0 WF standard in

2010, which would likely result in the

unavailability of top-loader residential

clothes washers. Therefore, under

section 327(d)(4) of EPCA, DOE denies

the California Petition's waiver request.

(42 U.S.C. 6297(d)(4))

H. Background

A. Energy Conservation Standards

Under EPCA

Part B of Title III of EPCA established

the Energy Conservation Program for

Consumer Products Other Than

Automobiles. (42 U.S.C. 6291-6309)

Products covered under the program,

including residential clothes washers,

are listed in section 322(a) of EPCA. (42

U.S.C. 6292(a)) Section 325(g) of EPCA

establishes energy conservation

standards for residential clothes

washers and authorizes DOE to amend

these standards. (42 U.S.C. 6295(g))

B. Preemption of State Standards

Generally under the provisions of

EPCA, where an energy efficiency

standard is effective for a "covered

product" under EPCA, including a

standard for residential clothes washers,

a State regulation concerning the energy

efficiency, energy use, or water use of

that product is preempted and is not

effective. (42 U.S.C. 6297(c)) Section

322(a)(7) lists residential clothes

washers as a product covered under Part

B of Title III of EPCA. (42 U.S.C.

6292(a)(7)) DOE has established energy

efficiency standards for residential

clothes washers as a covered product

under section 325(g)(4)(A), and those

standards are currently in effect (10 CFR

430.32(g)). (42 U.S.C. 6295(g)(4)(A))

Therefore, State regulations concerning

the water use of residential clothes

washers are preempted by the Federal

standards. EPCA provides several

provisions in which the Federal

standards do not preempt State

regulation, but for residential clothes

washers the only applicable exception

from the preemption provision is if a

waiver is granted under section 327(d).

(42 U.S.C. 6297(c)(2))

1. DOE Energy Conservation Standards

for Residential Clothes Washers

The initial Federal efficiency

standards prescribed in EPCA, as

amended by the National Appliance

Energy Conservation Act of 1987 (Pub.

L. No. 100-12) (NAECA), required an

unheated rinse water option for

residential clothes washers

manufactured on or after January 1,

1988. (42 U.S.C. 6295(g)) On January 12,

2001, DOE issued a final rule

establishing energy efficiency standards

for five product classes of residential

clothes washers (hereafter referred to as

"the January 2001 final rule"): toploading compact; top-loading, standard;

front-loading; top-loading, semiautomatic; and top-loading, suds-saving.

66 FR 3314.

The January 2001 final rule

established minimum energy efficiency

standards, set forth in Table II.1, below,

to become effective on January 1, 2004,

and January 1, 2007. The January 2001

final rule constituted the second

residential clothes washer rulemaking

required by EPCA. DOE's standards for

residential clothes washers are energy

efficiency standards only; DOE has not

set a water use requirement for

residential clothes washers.2 (10 CFR

430.32(g))

TABLE 11.1.-FEDERAL RESIDENTIAL CLOTHES WASHER STANDARD LEVELS

Product class

Top-Loading, compact ..............................

Top-Loading, standard ..............................

Front-Loading ............................................

Top-Loading, Semi-automatic ...................

Suds-saving ..............................................

Capacity

Modified energy factor

(ft.3/ kWh / cycle)

(ft 3)

Effective date 1/1/2004 Effective date 1/1/2007

< 1.6 0.65 ........................................................... 0.65

= 1.6 1.04 ........................................................... 1.26

1.04 ........................................................... 1.26

Unheated rinse water option ....................

Unheated rinse water option ....................

Unheated rinse water option

Unheated rinse water option

2. Waiver of Preemption

As stated above, Federal energy

efficiency standards for residential

products generally preempt State laws,

regulations and other requirements

concerning energy conservation testing,

labeling, and efficiency standards. (42

U.S.C. 6297(a)-(c)) Section 327(d) of

EPCA sets forth the procedures and

provisions for granting waivers from

Federal preemption (hereafter "waiver")

for particular State laws or regulations.

(42 U.S.C. 6297(d)) Section 327(d )(1)(A)

of EPCA provides that any State or river

basin commission with a State

regulation regarding energy use, energy

efficiency , or water use requirements for

products regulated by DOE may petition

ZThe Energy Policy Act of 2005 (Pub. L. 109-58)

amended EPCA with new energy efficiency and

water conservation standards for commercial

for a waiver of Federal preemption and

seek to apply its own State regulation.

(42 U.S.C. 6297( d)(1)(A)) Regulations

implementing the statutory provisions

regarding petitions for waiver from

Federal preemption are codified at 10

CFR part 430 subpart D.

Section 327(d)(1)(B) of EPCA requires

a petitioner to establish "by a

preponderance of the evidence" that its

proffered regulation "is needed to meet

unusual and compelling State or local

energy or water interests." (42 U.S.C.

6297(d)(1)(B)) "[U]nusual and

compelling " interests are defined as

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 or water

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 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)(1)(C)(i) and (ii))

The Secretary may not grant a waiver

if he finds "that interested persons have

established , by a preponderance of the

evidence, that" the State regulation

would "significantly burden

manufacturing, marketing, distribution,

sale, or servicing of the covered product

on a national basis." (42 U.S.C.

clothes washers. These new standards require

products manufactured on or after January 1, 2007,

to have a modified energy factor of at least 1.26 and

a water consumption factor2 of not more than 9.5.

(42 U.S.C. 6313(e))

00,100140

 EE-RM-PET-100 COMMENT 97