UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, )

)

Petitioner, )

)

V. )

)

UNiTED STATES DEPARTMENT OF )

ENERGY, and SAMUEL W. BODMAN, )

Secretary of Energy, )

)

Respondents )

No. 07-7 1576

RESPONSE OF PETITIONER CALIFORNIA ENERGY COMMISSION

IN OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S

MOTION rro DISMISS

William M. Chamberlain, Chief Counsel, SBN 050264

Jonathan Blees, Assistant Chief Counsel, SBN 070191

William Staack, Senior Staff Counsel, SBN 173579

Dennis L. Beck, Jr, Staff Counsel, SBN 179492

Attorneys for Petitioner

CALIFORNIA ENERGY COMMISSION

1516 Ninth Street, Mail Station 14

Sacramento, California 95814-5512

(916) 654-3953

JBlees @energy.state.ca.us

 EE-RM-PET-100 COMMENT 96
able of Contents

Introduction

Background

Suiinirnary of Argument

Argument

Pctg e

I

2

6

I. DOE's Waiver Determinations Under Section 6297(d) Are for All

Practical Purposes Implementati on of Its Standards Decisions

Under Section 6295, and Therefore the Former Type of Rulemaking

Should Be Reviewed in the Same Court That Reviews the Latter

Type of Rulemaking the Court of Appeals. 6

II. Ambiguity in the EPCA Judicial Review Statutes Should Be

Resolved in Favor of Court of Appeals Jurisdiction. 7

III. A Recent Second Circuit Case, Which Applied EPCA's Judicial

Review Provisions To Very Similar Facts, Strongly Indicates That

The Ninth Circuit Has Jurisdiction Over the instant Case. 9

IV. The Cases Cited by DOE Do Not Support Its Position. 14

Conclusion 16

I

 EE-RM-PET-100 COMMENT 96
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, )

)

Petitioner, )

)

V. )

)

UNITED STATES DEPARTMENT OF )

ENERGY, and SAMUEL W. BODMAN, )

Secretary of Energy, )

)

Respondents )

No. 07-71576

RESPONSE OF PETITIONER CALIFORNIA ENERGY COMMISSION

IN OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S

MOTION TO DISMISS

Introduction

This case involves DOE's refusal to allow California's water efficiency

standards for clothes washers to take effect. Because DOE has adopted energy

efficiency standards for clothes washers, California's water standards for those

The caption here is the caption on the Petition for Review. Court documents

have added the notation "DOE No. Clean Water Act, Eastern District of California,

Sacramento" following the docket number. The case, however, has nothing to do

with the Clean Water Act, nor does it arise in the Eastern District of California;

rather, the case is a direct appeal from the action of a federal agency (DOE)

implementing the Energy Policy and Conservation Act ("EPCA"). In addition, the

caption on the Petition lists both the "United States Department of Energy" and

"Samuel W. Bodman, Secretary of Energy," as Respondents (to whom we refer

collectively as "DOE"), but court documents list only the "Department of Energy."

I

 EE-RM-PET-100 COMMENT 96
appliances cannot take effect, according to federal law, unless DOE grants a

waiver from federal preemption. DOE denied California's request for a waiver

after an extended rulemaking proceeding culminating in findings allegedly

supported by the record, and California's Energy Conrniission, which adopted the

state standards, petitioned this Court for review.

DOE argues that in the absence of a statutory provision expressly granting

jurisdiction to either the courts of appeals or the district courts to hear matters of

this type, California is relegated to the district courts. (Mot. to Dismiss 2-3.)

However, the statutory scheme, principles of judicial review of administrative

action, considerations of judicial economy and efficiency, and the applicable case

law - including one of the few cases reviewing DOE action on appliance efficiency

standards, and the only one on jurisdiction to review such actions - all indicate that

this Court has jurisdiction. Therefore, Petitioner California Energy Commission

("CEC") urges the Court to deny DOE's Motion to Dismiss ("Motion")

Background

The CEC has been adopting and implementing efficiency standards for

appliances since 1976. See Cal. Pub. Res. Code § 25402(c). DOE has been doing

so since 1987, under the Energy Policy and Conservation Act ("EPCA"), as

2

 EE-RM-PET-100 COMMENT 96
amended. See 42 U.S.C. § 6295; id., Historical and Statutory Notes. In general,

DOE's efficiency standards preempt state efficiency standaids, but DOE may grant

waivers from federal preemption. 42 U.S.C. § 6297(c)-(d). DOE also establishes

procedures for the testing of appliances, id. § 6293, and the Federal Trade

Commission establishes regulations on appliance labeling, id. § 6294.

In 2001, DOE adopted energy efficiency standards for residential clothes

washers, pursuant to section 6295. 66 Fed. Reg. 3314, codified at 10 C.F.R. §

430.32. (DOE decided not to adopt water efficiency standards for those

appliances.) In 2002, the CEC adopted energy and water efficiency standards for

commercial clothes washers. See Cal. Code Regs. tit. 20, § 1605.3(p)(l).

(Because commercial clothes washers were not at that time covered by federal law,

those California standards were not preempted then.)

Later in 2002, the California Legislature enacted a statute that required the

CEC to adopt water efficiency standards for residential clothes washers. 2002 Cal.

Stat., ch. 421 (enacting Cal. Pub. Res. Code § 25402(e)(l)). Recognizing that the

water standards would he preempted by federal law (because of DOE's previous

adoption of energy standards for residential clothes washers under Section 6295),

the Legislature also required the CEC to petition DOE for a waiver of preemption.

3

 EE-RM-PET-100 COMMENT 96
Id. The CEC responded by adopting the standards, Cal. Code Regs. tit. 20, §

l6OS.2(p)(l), and by submitting the waiver petition that is at issue here.

The CEC submitted its waiver petition to DOE on September 16, 2005, and

DOE accepted the petition as "conform[ing] to the requirements of [DOE's

regulations] and . . * contain[ing] sufficient information for the purposes of a

substantive decision," 10 C.F.R. § 430.42(f)(1), on December 28, 2005. 71 Fed.

Reg. 78160 (Dec. 28, 2005). EPCA requires DOE to rule on waiver petitions in

rulemakings, so the agency instituted a proceeding pursuant to the federal

Administrative Procedure Act. 72 Fed. Reg. 6022 (Feb. 6, 2006); see 42 U.S.C. §

6297(d)(1)-(5), 6306(a)(1). During the proceeding, DOE received, and placed into

the rulemaking file, over 70 public comments on the requested waiver. See

www.eere .energy. gov/buildings/appiiance_standards/statepetitions.html (last

visited June 10, 2007). DOE denied the waiver petition on December 28, 2006,

making various findings (supposedly on the basis of the record, although Petitioner

disagrees that DOE's findings were so based) as required by 42 U.S.C. section

6297(d). 71 Fed. Reg. 78157 (Dec. 28, 2006). Because DOE's regulations state

that a request for reconsideration of a waiver denial is a prerequisite to judicial

review, 10 C.F.R. § 430.48(d), on January 29, 2007 the CEC requested

reconsideration. DOE took no action on the reconsideration request, which was

4

 EE-RM-PET-100 COMMENT 96
thus denied by operation of law on February 28, 2007. See id. § 430.48. As a

result, DOE's clothes washer energy efficiency standards under Section 6295

continue to preempt California's water efficiency standards. The CEC filed a

Petition for Review in this Court on April 21, 2007.

Summary of Argunient

EPCA's judicial review provisions do not expressly assign jurisdiction over

DOE's section 6297(d) waiver actions either to the courts of appeals or to the

district courts. But they do limit the jurisdiction of the district courts to situations

in which there is no rulemaking record and thus in which judicial fact-finding is

likely to be required, while they assign rulemaking review exclusively to the courts

of appeals. Therefore, the general rule that the courts of appeals should review

rulemakings should be applied to section 6297(d) waiver rulernakings. Moreover,

DOE's grants (or denials) of waivers under section 6297(d) are tantamount to

modifying (or reaffirming) the preemptive effect of standards adopted under

section 6295. Therefore, waiver actions should be reviewed in the same manner as

section 6295 standards - in the courts of appeals. Finally, considerations of

judicial economy strongly favor jurisdiction in the courts of appeals.

 EE-RM-PET-100 COMMENT 96
Arc ument

DOE's Waiver Determinations Under Section 6297(d) Are for All Practical

Purposes Implementation of Its Standards Decisions Under Section 6295.

and Therefore the Former Type of Rulemaking Should Be Reviewed in the

Same Court That Reviews the Latter Type of Rulemaking - the Court of

Appeals.

Section 6297(d) does not establish any regulatory function of DOE that has

any meaning apart from determining the reach and effect of the section 6295

efficiency standards. It is DOE's efficiency standards, which are adopted under

section 6295 and for which jurisdiction is expressly vested in the courts of appeals,

that preempt state efficiency standards. 42 U.S.C. § 6295, 6297(c). Therefore,

when DOE grants a preemption waiver under section 6297(d), the agency is in

effect amending the section 6295 standard to allow the state standard to take effect.

When DOE denies a waiver, the state that sought a waiver becomes "adversely

affected by a [standard] prescribed under section . . 6295." Id. § 6306(b)(l).

Therefore, section 6297(d) waiver rulemakings are inherently a part of DOEs

section 6295 rulemaking responsibilities, and both should be reviewed in the same

court - the courts of appeals. "[S]tatutes authorizing review of specified agency

actions should be construed to allow review of agency actions which are

functionally similar or tantamount to those specified actions." Therinalken, Inc. v.

(1.3. Envti. Prot. Agency, 25 F.3d 1233, 1237 (3d Cii'. 1994).

6

 EE-RM-PET-100 COMMENT 96
II. Ambiguity in the EPCA Judicial Review Statutes Should Be Resolved in

Favor g, Court of ppeals Juridic.

.....

....

EPCA's judicial review provisions deal expressly with only some of the

powers and duties that DOE implements. Jurisdiction is assigned to (1) the district

courts over a short list of narrowly-prescribed cases (which obviously do not

extend to section 6297(d) waiver determinations), and (2) the court's of appeals

over some, but not all, of DOE's rulemaking activities. 42 U.S.C. § 6305,

6306(b)-(c). For all other DOE actions - such as the type of waiver decision under

section 6297(d) that is challenged in the instant case - the judicial review

provisions are silent. 1d Does that mean that there is no judicial review of waiver

decisions? Of course not. "The mere fact that a statute is silent on the issue of

review is not controlling. To the contrary, [the courts] 'begin with the strong

presumption that Congress intends judicial review of administrative action."

Dickson v. Secy of Def , 68 F.3d 1396, 1401 (D.C. Cir. 1995) (quoting Bowen v.

Mich. Acaci. of Family Physicians, 476 U.S. 667, 670 (1986)).

The issue, then, is which court has jurisdiction. Unfortunately, "the case law

[on jurisdiction] is complicated and confused Statutory provisions governing

review jurisdiction are often poorly drafted, ambiguous, [or] incomplete " 3

Richard J. Pierce, Adinin. Law Treatise § 18.2 (4th ed. 2002). Fortunately, the

Second Circuit has provided guidance in interpreting these very judicial review

7

 EE-RM-PET-100 COMMENT 96
provisions, noting that '[i]f there is any ambiguity as to whether jurisdiction lies

with a district court or with a court of appeals we must resolve that ambiguity in

favor of review by a court of appeals." NRDC v. Abraham, 355 F.3d 179, 193 (2nd

Cir. 2004) ("NRDC v. Abraham (Appliances)") (quoting Nat'l Parks

Conservation Ass'n V. Fed. Aviation Admin., 998 F.2d 1523. 1529 (10th Cir. 1993))

(emphasis added).

This Court can view Congress's failure to include section 6297(d) in the

judicial review provisions as an inadvertent oversight, or as a deliberate action to

give the district courts jurisdiction over waiver proceedings. The latter makes little

sense in light of the statutory structure. It seems highly unlikely that Congress

intended to (1) place judicial review of DOE's major rulemakings on test methods

and efficiency standards, under sections 6293 and 6295 (and the FTC's

rulemakings on labeling under section 6294), in the courts of appeals, but (2)

relegate the major ruiemakings on waivers, nominally under section 6297(d), to the

district courts. In light of the narrow list of matters assigned to the district courts,

and the assignment of all of DOE's non-6297(d) rulemakings to the court of

appeals, a conclusion that Congress deliberately intended to ilace judicial review

of section 6297(d) rulemakings in the district courts, though it did not mention

them in the section prescribing district court jurisdiction, would stretch credulity.

8

 EE-RM-PET-100 COMMENT 96
III. A Recent Second Circuit Case. Which Applied EPCA's Judicial Review

Provisions to Very Similar Facts. Strongly Indicates That The Ninth Circuit

Has Jurisdiction Over the Instant Case.

The Second Circuit recently examined a very similar situation - DOE's

attempt to delay the effective date of a previously-adopted section 6295 efficiency

standard - and concluded that the courts of appeals, not the district courts, have

jurisdiction. NRDC v. Abraham (Appliances), 355 F.3d 179 (2nd Cii. 2004).

Although DOE's Motion in the instant case fails to cite this opinion, it is the only

opinion that addresses which court has jurisdiction over DOE appliance actions.

The Second Circuit held that although EPCA does not expressly provide for

judicial review of DOE attempts to delay effective dates, the court of appeals had

jurisdiction over the challenge because such delays were functionally part of

DOE's adoption of efficiency standards under section 6295 - actions for which

section 6306(b)(1) places jurisdiction in the courts of appeals. 355 F.3d at 192-93

The Second Circuit supported its determinations with three U.S. Supreme Court

"guideposts" - the overall statutory structure, the legislative history, and the

traditional allocation of judicial authority to review agency action. Id. at 193

(citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985) ("Lorian")).

With regard to the first two guideposts, the court stated that "most acts

undertaken by DOE under its grant of authority regarding home appliances are

9

 EE-RM-PET-100 COMMENT 96
subject to review by the coui of appeals, and there is no clear expression of

legislative intent that amendments to the effective dates of rules promulgated under

the EPCA we excepted hom this requirement." 355 F.3d at 193. Those factors

were consistent with the third guidepost: the "sound policy of placing initial

[rulemaking] review in the courts of appeals." Id. (quoting Lorian, 470 U.S. at

745). Explaining that "sound policy," the court stated that "[r]ulemaking

proceedings do not ordinarily necessitate additional factfinding by a district court

to effectuate the review process," while the types of proceedings EPCA assigns to

the district courts "ordinarily would entail additional factfinding, as they do not

reflect the culmination of a structured rulemaking process with its attendant

record." id. at 193-94 (citation omitted).

Thus in NRDC v. Abraham (Appliances), the court found that DOE's

effective-date delays (1) were "in the nature of rulemaking proceedings because

they are the result of an affirmative agency decisionmaking process reflected in the

Federal Register, and thus would not require additional factfinding" and (2) were

"tantamount to an amendment or rescission of the [Section 6295] standards, which

clearly falls within section 6306(b)(l)'s ambit [of judicial review by the courts of

appeals]." Id. at 194 (citing, e.g., The rinalkem, Inc. V. EPA, 25 F.3d 1233, 1237

(3d Cir. 1994) ("statutes authorizing review of specified agency actions should be

10

 EE-RM-PET-100 COMMENT 96
construed to allow review of agency actions which are functionally similar or

tantamount to those specified actions")).

The same considerations apply here. First, waiver actions are not merely "ii

the nature of rulemaking proceedings," they are rulemaking proceedings. Second,

as we discussed at page 7 above, waiver actions under section 6297(d) are

"tantamount to an amendment" of section 6295 standards (if a waiver is granted),

or to reaffirmations of the preemptive effect of section 6295 standards (if a waiver

is denied, as here), so judicial review should be in the same place - the courts of

appeals. Moreover, there is no indication either in EPCA itself, or its legislative

history, that judicial review should not be in the court of appeals. See 42 U.S.C. §

6306, Historical and Statutory Notes; S. Rep. No. 100-6, at 11, reprinted in 1987

U.S.CC.A.N. 52, 62; H.R. Rep. No. 100-11, at 40.

The important considerations of j udicia] economy that supported the court's

decision in NRDC v. Abraham (Appliances) also apply in the instant case. if this

Court grants DOE' s Motion to Dismiss, Petitioner CEC will file suit in the Eastern

District of California, which would examine DOE's rulemaking record and assess

whether the agency abused its discretion, followed applicable procedures, and

based its findings on substantial evidence in the record. See 5 U.S.C. § 706; 42

 EE-RM-PET-100 COMMENT 96
U.S.C. § 6306(b)(2). The losing party would no doubt appeal to this Court, which

in a de novo review would do exactly the same thing: examine DOE's rulemaking

record and assess whether the agency abused its discretion, followed applicable

procedures, and based its findings on substantial evidence in the record. See Nat'l

Medical Enterprises v. Sullivan, 957 R2d 664, 667 (9th Cir. 1992). Thus there

would be two court proceedings, dealing with exactly the same issues, and

applying the exact same standard of review to the exact same record. That series

of events would needlessly waste the courts' and the parties' resources, and it

would delay a final resolution of the important issues presented here. As the

Supreme Court said, regarding the Hobbs Act:

[T]he submission of the cases, upon the records made before the

administrative agencies will avoid the making of two records, one

before the agency and one before the court, and thus going over the

same ground twice. The most obvious advantage of direct review by

a court of appeals is the time saved compared to review by a district

court, followed by a second review on appeal.

Lorion, 470 U.S. at 740-41 (citations and internal quotation mrks omitted).

Also quite instructive is Maier v. U.S. EPA, 114 F.3d 1032 (10th Cir. 1997)

("Muier"). That case dealt with the Clean Water Act ("CWA"), which requires

EPA to set "effluent limitations" (water, pollution standards), and which has a

'bifurcated system of judicial review" quite similar to EPCA's:

12

 EE-RM-PET-100 COMMENT 96
Section 1365 confers jurisdiction on the federal district courts . . to

review any action where there is alleged a failure of the Administrator

to perform any act or duty under [the CWA] which is not

discretionary. . . . Section 1369 of the CWA provides that [r]eview of

the Administrators action . . . in approving or promulgating any

effluent limitation or other limitation . . . may be had by any interested

person in the Circuit Court of Appeals.

Id. at l03637 (citations, footnotes, and quotation marks omitted). The petitioner

challenged EPA's failure to revise an effluent limitation in response to his request.

The court first noted that "Section 1369's language about [EPA's] 'action ...in

approving or promulgating any. . . limitation' arguably does not apply to [EPA's]

refusal to promulgate a rule in the first instance." id. at 1037. This is similar to

DOE's view that EPCA's section 6305(b)(l) reference to efficiency standards

adopted under section 6295 "arguably" does not apply to DOE's waiver actions.

Nevertheless, the 10th Circuit had "no difficulty" concluding that it had

jurisdiction, for it found that the petitioner was "essentially challenging" a rule

"that [EPA] had already promulgated" and therefore actually did fall within the

court of appeal's express jurisdiction. Id. at 1039. Just so, the CEC's challenge to

DOE's failure to grant a waiver under section 6297 is "essentially challenging" the

preemptive effect of a section 6295 efficiency standard, which does fall within this

Court's express jurisdiction under section 6306(b)(l). In addition, theMuier court

relied, as did the court in NRDC v. Abraham (Appliances), on "[p]rudential

concerns" about allocation of judicial resources:

13

 EE-RM-PET-100 COMMENT 96
[U]nlike other actions in which the district court serves the important

functions of developing a complete record and defining and focusing

the issues, in many appeals of administrative actions, the agency

already has fulfilled those functions and there is no practical reason to

submit the issues to two-tiered judicial review.

Id. at 1038 n.l0 (citations and quotations marks omitted).

IV. The Cases Cited by DOE Do Not Support Its Position

in contrast to NRDC v. Abraham (Appliances), none of the cases cited by

DOE deal with EPCA, so they have little relevance to the instant case. Moreover,

to the extent they are relevant, they actually favor jurisdiction in this Court.

For example, in Owner-Operators independent Drivers Ass 'n V. Skinner,

931 F.2d 582 (9th Cir. 1991), this Court ruled that the proper venue for review of

certain drug-testing regulations by the Federal Highway Administration

("FHWA") was the court of appeals. The Court noted that "only 'afirin indication

that Congress intended to locate initial [Administrative Procedure Act] review of

agency action in the district courts' will supplement court of appeals review." id.

at 588-589 (quoting Lorion, 470 U.S. at 745) (emphasis in original). Int'l Bhd. qf

Teamsters v. Penci, 17 F.3d 1478 (D.C. Cir. 1994), is to the same effect (court of

appeals had jurisdiction to hear challenges to rules of the FHWA, under authority

transferred to the agency from the Interstate Commerce Commission).

14

 EE-RM-PET-100 COMMENT 96
The other cases DOE cites are of no help to the agency. Five Flags Pipe

Line Co. v. Department of Trctnsportation, 854 F.2d 1438 (D.C.Cir. 1988). is

irrelevant, for it turns on the "arcane issue" of which provision controls "where the

language of the Statutes at Large conflicts with the language in the United States

Code that has not been enacted into positive law." hi. at 1440. That issue certainly

has no bearing on the instant case. Stone v. INS, 514 U.S. 386 (1995) is also

irrelevant; it deals with the toiling of an Immigration and Nationality Act statute,

and it contains no discussion of judicial jurisdiction. Cutler v. Hayes, 818 F.2d

879 (D.C.Cir. 1987), involves an agency's refusal to enforce existing regulations,

rather than, as here, an agency rulemaking reaffirming the preemptive effect of its

regulations. Moreover, the opinion cites Supreme Court precedent suggesting

district court jurisdiction, see Id. at 887 n.61, but obviously no such precedent

exists for the instant case. Finally, NRDC v. Abraham, 244 F.3d 742 (9th Cir.

2001) ("NRDC v. Abraham (Nuclear)"), involves two completely different

statutory schemes with differing, and clear, judicial review provisions: the Nuclear

Waste Policy Act and the Atomic Energy Act. The petitioner filed under one, but

the court said that the agency's action arose under the other. In contrast, only one

statute, EPCA, is involved in the instant case, and its judicial review provisions are

ambiguous.

15

 EE-RM-PET-100 COMMENT 96
DOE cites several other cases, but only because the agency must attempt to

distinguish them, for all of them held that jurisdiction to review the agency action

at issue lay in the courts of appeals. (See Mot. to Dismiss 5-6 and cases there

cited.) Of course, as we have noted, DOE fails even to cite the one case that

actually deals with the issue here: judicial jurisdiction under EPCA. That case,

NRDC v. Abraham (Appliances), demonstrates that the language of EPCA, the

principles governing judicial review of agency action, and the need to avoid

wasting judicial resources, all support the conclusion that this Court has

jurisdiction in the instant case.

Con cm si On

The Court should deny DOE's Motion to Dismiss.

June 18, 2007 Respectfully submitted,

William M. Chamberlain, Chief Counsel, SBN 050264

Jonathan Blees, Assistant Chief Counsel, SBN 070191

William Staack, Senior Staff Counsel, SBN 173579

Dennis L. Beck, Jr., Staff Counsel, SBN 179492

Attorneys for Petitioner

CALIFORNIA ENERGY COMMISSION

1516 Ninth Street, Mail Station 14

S acrarnento, California 95814-5512

(916) 654-3953

JBlees @energy.state.ca.us

16

 EE-RM-PET-100 COMMENT 96
Case Name: CALIFORNIA ENERGY COMMISSION, Petitioner, v. UNITED

STATES DEPARTMENT OF ENERGY, and SAMUEL W. BODMAN,

Secretary of Energy, Respondents

Case No.: 07-71576

Court: United States Court of Appeals for the Ninth Circuit

PROOF OF SERVICE

I am a citizen of the United States, over the age of 18 years, and riot a party to or

interested in the within entitled cause. My business address is 1516 Ninth Street,

Sacramento, California 95814. On June 18, 2007, I served the following:

RESPONSE OF PETONER CAUFORMA ENERGY COMMISSION IN

OPPOSITION TO RESPONDENT DEPARTMENT OF ENERGY'S

MOTION TO DISMISS

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully

prepaid, in the United States Post Office mail at Sacramento, California, addressed as

follows:

Samuel W. Bodman

Secretary of Energy

United States Department of Energy

1000 Independence Avenue, SW

Washington, DC 20585

H. Thomas Byron III

U.S. Department of Justice

Civil Division, Appellate Staff

950 Pennsylvania Avenue, NW., RM 7260

Washington, D.C. 20530-0001

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

Association of I--lome Appliance

Manufacturers

David Cal abrese, Vice President

Government Relations

1111 19th Street, 7 Suite 402

Washington, DC 20036

AHAM

David Calabrese, Vice President

Government Relations

1111 i9 Street, NW, Suite 402

Washington, DC 20036

Mr. Bryan Berringer

United States Department of Energy

Office of Energy Efficiency and

Renewable Energy

Building Technologies Program, EE-2J

1000 lndependence Avenue, SW

Washington, D.C. 20585-0121

 EE-RM-PET-100 COMMENT 96
Charles A. Samuels

General Counsel. Association of Home

Appliance Man ufacturers

MINTZ, LEVIN, COHN, FERRIS,

GLOYSKY AND POPEO. P.C.

701 Pennsylvania Avenue, Suite 900

Washington, D.C. 20004

John Mizroch

Principal Deputy Assistant

Office of Energy Efficiency and

Renewable Energy

United States Department of Energy

1000 independence Avenue, SW

Washington, D.C. 20585-0121

Nathan R. Hambler, Esq.

MThTZ, LEVIN, COHN, FERRIS,

GLOVSKY AND POPEO, P.C.

9255 Towne Centre Drive, Suite 600

San Diego, CA 92121

General Counsel, EPA

U.S. Department of Energy

Office of the District Counsel

1000 Independence Avenue. SW.

Washington, D.C. 20585

Mr. Thomas DePriest

United States Department of Energy

Office of General Counsel, GC-72

1000 Independence Avenue, SW

Washington, D.C. 20585-0121

II declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed on June 18, 2007 at Sacramento, California.

7

 EE-RM-PET-100 COMMENT 96