CONCLUSION

The Court should overturn DOE's decision and remand with appropriate

instructions to prescribe a rule granting a waiver for the California Standards.

September 24, 2007 Respectfully submitted,

6ki

iam M. Chamberlain

Jonathan Blees

William Staack, Senior Staff Counsel

Dennis L. Beck, Jr., Senior Staff Counsel

Attorneys for Petitioner

CALIFORNIA ENERGY COMMISSION

1516 Ninth Street, Mail Station 14

Sacramento, California 95814-5512

(916) 654-3953 Fax (916) 654-3843

JB lees @ energy. state.ca.u s

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FORM 8.

CERTIFICATE OF COMPLIANCE

PURSUANT TO FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32-1

FOR CASE NUMBER 07-71576

(see next page) Form Must Be Signed By Attorney or Unrepresented

Litigant And Attached to the Back of Each Copy of the Brief

I certify that: (check appropriate option(s))

XXX 1. Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the

attached opening/answering/reply/cross-appeal brief is

* Proportionately spaced, has a typeface of 14 points or more and contains

12,734 words (opening, answering , and the second and third briefs filed

in cross-appeals must not exceed 14,000 words; reply briefs must not exceed

7,000 words),

or is

* Monospaced, has 10.5 or fewer characters per inch and contains words

or lines of text (opening, answering, and the second and third

briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text;

reply briefs must not exceed 7,000 words or 650 lines of text).

_2. The attached brief is not subject to the type-volume limitations of

Fed. R. App. P. 32(a)(7 )(B) because

* This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal

brief of no more than 30 pages or a reply brief of no more than 15 pages;

* This brief complies with a page or size-volume limitation established by

separate court order dated and is

Proportionately spaced, has a typeface of 14 points or more and

contains words,

or is

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 EE-RM-PET-100 COMMENT 97
Monospaced, has 10.5 or fewer characters per inch and contains

pages or words or lines of text.

_3. Briefs in Capital Cases

This brief is being filed in a capital case pursuant to the type-volume

limitations set forth at Circuit Rule 32-4 and is

* Proportionately spaced, has a typeface of 14 points or more and

contains words (opening, answering, and the second and

third briefs filed in cross-appeals must not exceed 21,000 words;

reply briefs must not exceed 9,800 words)

or is

* Monospaced, has 10.5 or fewer characters per inch and contains words

or lines of text (opening, answering, and the

second and third briefs filed in cross-appeals must not-exceed 75 pages or 1,950

lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

_4. Amicus Briefs

Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached

amicus brief is

* Proportionally spaced, has a typeface of 14 points or more

and contains 7000 words or less,

or is

* Monospaced, has 10.5 or fewer characters per inch and contains not more

than either 7000 words or 650 lines of text,

or is

* Not subject to the type-volume limitations because it is an amicus brief of

no more than 15 pages and complies with Fed. R. App. P. 32(a)(1)(5).

Date Snature of Attorney or Unrepresented Litigant

2

 EE-RM-PET-100 COMMENT 97
STATEMENT OF RELATED CASES

Counsel for Petitioner are unaware of any "related cases" as that phrase is

defined in Circuit Rule 28-2.6.

 EE-RM-PET-100 COMMENT 97
 EE-RM-PET-100 COMMENT 97
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 EE-RM-PET-100 COMMENT 97
5 U.S.C. § 553. Rule making

(a) This section applies, according to the provisions thereof, except to the

extent that there is involved--

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public

property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal

Register, unless persons subject thereto are named and either personally

served or otherwise have actual notice thereof in accordance with law. The

notice shall include--

(1) a statement of the time, place, and nature of public rule making

proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the

subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not

apply--

(A) to interpretative rules, general statements of policy, or rules of agency

organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and

a brief statement of reasons therefor in the rules issued) that notice and

public procedure thereon are impracticable, unnecessary, or contrary to the

public interest.

(c) After notice required by this section, the agency shall give interested

persons an opportunity to participate in the rule making through submission

of written data, views, or arguments with or without opportunity for oral

presentation. After consideration of the relevant matter presented, the agency

shall incorporate in the rules adopted a concise general statement of their

basis and purpose. When rules are required by statute to be made on the

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 EE-RM-PET-100 COMMENT 97
record after opportunity for an agency hearing, sections 556 and 557 of this

title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made

not less than 30 days before its effective date, except-

(1) a substantive rule which grants or recognizes an exemption or relieves a

restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and

published with the rule.

(e) Each agency shall give an interested person the right to petition for the

issuance, amendment, or repeal of a rule.

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 EE-RM-PET-100 COMMENT 97
5 J.S.C. § 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court

shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms

of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed;

and

(2) hold unlawful and set aside agency action, findings, and conclusions

found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556

and 557 of this title or otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial

de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole

record or fl-iose parts of it cited by a party, and due account shall be taken of

the rule of prejudicial error.

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42 U.S.C. § 6295. Energy conservation standards

(g) Standards for dishwashers; clothes washers; clothes dryers; fluorescent

lamp ballasts

(1) Dishwashers manufactured on or after January 1, 1988, shall be equipped

with an option to dry without heat.

(2) All rinse cycles of clothes washers shall include an unheated water

option, but may have a heated water rinse option, for products manufactured

on or after January 1, 1988.

(3) Gas clothes dryers shall not be equipped with a constant burning pilot for

products manufactured on or after January 1, 1988.

(4)(A) The Secretary shall publish final rules no later than January 1, 1990,

to determine if the standards established under this subsection for products

described in paragraphs ( 1), (2), and (3) should be amended. Such rules shall

provide that any amendment shall apply to products the manufacture of

which is completed on or after January 1, 1993.

(B) After January 1, 1990, the Secretary shall publish a final rule no later

than five years after the date of publication of the previous final rule. The

Secretary shall determine in such rule whether to amend the standards in

effect for such products.

(C) Any such amendment shall apply to products manufactured after a date

which is five years after-

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

(ii) if the previous final rule did not amend the standard, the earliest date

by which a previous amendment could have been in effect;

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

manufactured within three years after publication of the final rule

establishing such standard.

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 EE-RM-PET-100 COMMENT 97
42 U.S.C. § 6297. Effect on other law

(c) General rule of preemption for energy conservation standards when

Federal standard becomes effective for product

Except as provided in section 6295 (b)(3)(A)(ii) of this title, subparagraphs

(B) and (C) of section 6295(j)(3) of this title, and subparagraphs (B) and (C)

of section 6295(k)(3) of this title and effective on the effective date of an

energy conservation standard established in or prescribed under section 6295

of this title for any covered product, no State regulation concerning the

energy efficiency , energy use, or water use of such covered product shall be

effective with respect to such product unless the regulation--

(1) is a regulation described in paragraph (2) or (4) of subsection (b) of this

section, except that a State regulation (or portion thereof) regulating

fluorescent lamp ballasts other than those to which paragraph (5) of section

6295 (g) of this title is applicable shall be effective only until the effective

date of a standard that is prescribed by the Secretary under paragraph (7) of

such section and is applicable to such ballasts, except that a State

regulation (or portion thereof) regulating fluorescent or incandescent lamps

other than those for which section 6295 (i) of this title is applicable shall be

effective only until the effective date of a standard that is prescribed by the

Secretary and is applicable to such lamps;

(2) is a regulation which has been granted a waiver under subsection (d) of

this section;

(3) is in a building code for new construction described in subsection (f)(3)

of this section;

(4) is a regulation concerning the water use of lavatory faucets adopted by

the State of New York or the State of Georgia before October 24, 1992;

(5) is a regulation concerning the water use of lavatory or kitchen faucets

adopted by the State of Rhode Island prior to October 24, 1992;

(6) is a regulation (or portion thereof) concerning the water efficiency or

water use of gravity tank-type low consumption water closets for

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 EE-RM-PET-100 COMMENT 97
installation in public places, except that such a regulation shall be effective

only until January 1, 1997; or

(7)(A) is a regulation concerning standards for commercial prerinse spray

valves adopted by the California Energy Commission before January 1,

2005; or

(B) is an amendment to a regulation described in subparagraph (A) that

was developed to align California regulations with changes in American

Society for Testing and Materials Standard F2324;

(8)(A) is a regulation concerning standards for pedestrian modules adopted

by the California Energy Commission before January 1, 2005; or

(B) is an amendment to a regulation described in subparagraph (A) that

was developed to align California regulations to changes in the Institute for

Transportation Engineers standards, entitled "Performance Specification:

Pedestrian Traffic Control Signal Indications".

(d) Waiver of Federal preemption

(1)(A) Any State or river basin commission with a State regulation which

provides for any energy conservation standard or other requirement with

respect to energy use , energy efficiency, or water use for any type (or class)

of covered product for which there is a Federal energy conservation standard

under section 6295 of this title may file a petition with the Secretary

requesting a rule that such State regulation become effective with respect to

such covered product.

(B) Subject to paragraphs (2) through (5), the Secretary shall, within the

period described in paragraph (2) and after consideration of the petition and

the comments of interested persons, prescribe such rule if the Secretary finds

(and publishes such finding) that the State or river basin commission has

established by a preponderance of the evidence that such State regulation is

needed to meet unusual and compelling State or local energy or water

interests.

(C) For purposes of this subsection, the term "unusual and compelling State

or local energy or water interests" means interests which--

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 EE-RM-PET-100 COMMENT 97
(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.

The factors described in clause (ii) shall be evaluated within the context of

the State's energy plan and forecast, and, with respect to a State regulation

for which a petition has been submitted to the Secretary which provides for

any energy conservation standard or requirement with respect to water use of

a covered product, within the context of the water supply and groundwater

management plan, water quality program, and comprehensive plan (if any)

of the State or river basin commission for improving, developing, or

conserving a waterway affected by water supply development.

(2) The Secretary shall give notice of any petition filed under paragraph

(1)(A) and afford interested persons a reasonable opportunity to make

written comments, including rebuttal comments, thereon. The Secretary

shall, ' within the 6-month period beginning on the date on which any such

petition is filed, deny such petition or prescribe the requested rule, except

that the Secretary may publish a notice in the Federal Register extending

such period to a date certain but no longer than one year after the date on

which the petition was filed. Such notice shall include the reasons for delay.

In the case of any denial of a petition under this subsection, the Secretary

shall publish in the Federal Register notice of, and the reasons for, such

denial.

(3) The Secretary may not prescribe a rule under this subsection if the

Secretary finds (and publishes such finding) that interested persons have

established, by a preponderance of the evidence, that such State regulation

will significantly burden manufacturing, marketing, distribution, sale, or

servicing of the covered product on a national basis. In determining whether

to make such finding, the Secretary shall evaluate all relevant factors,

including--

(A) the extent to which the State regulation will increase manufacturing or

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 EE-RM-PET-100 COMMENT 97
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.

(4) The Secretary may not prescribe a rule under this subsection if the

Secretary finds (and publishes such finding) that interested persons have

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

likely to result in the unavailability in the State of any covered product type

(or class) of performance characteristics (including reliability), features,

sizes, capacities, and volumes that are substantially the same as those

generally available in the State at the time of the Secretary's finding, except

that the failure of some classes (or types) to meet this criterion shall not

affect the Secretary's determination of whether to prescribe a rule for other

classes (or types).

(5) No final rule prescribed by the Secretary under this subsection may--

(A) permit any State regulation to become effective with respect to any

covered product manufactured within three years after such rule is

published in the Federal Register or within five years if the Secretary finds

that such additional time is necessary due to the substantial burdens of

retooling, redesign, or distribution needed to comply with the State

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 EE-RM-PET-100 COMMENT 97
regulation; or

(B) become effective with respect to a covered product manufactured

before the earliest possible effective date specified in section 6295 of this

title for the initial amendment of the energy conservation standard

established in such section for the covered product; except that such rule

may become effective before such date if the Secretary finds (and

publishes such finding) that, in addition to the other requirements of this

subsection the State has established, by a preponderance of the evidence,

that--

(i) there exists within the State an energy emergency condition or, if the

State regulation provides for an energy conservation standard or other

requirement with respect to the water use of a covered product for which

there is a Federal energy conservation standard under subsection (j) or (k)

of section 6295 of this title, a water emergency condition, which--

(I) imperils the health, safety, and welfare of its residents because of the

inability of the State or utilities within the State to provide adequate

quantities of gas or electric energy or, in the case of a water emergency

condition, water or wastewater treatment, to its residents at less than

prohibitive costs; and

(II) cannot be substantially alleviated by the importation of energy or,

in the case of a water emergency condition, by the importation of water,

or by the use of interconnection agreements; and

(ii) the State regulation is necessary to alleviate substantially such

condition.

(6) In any case in which a State is issued a rule under paragraph (1) with

respect to a covered product and subsequently a Federal energy conservation

standard concerning such product is amended pursuant to section 6295 of

this title, any person subject to such State regulation may file a petition with

the Secretary requesting the Secretary to withdraw the rule issued under

paragraph (1) with respect to such product in such State. The Secretary shall

consider such petition in accordance with the requirements of paragraphs

(1), (3), and (4), except that the burden shall be on the petitioner to show by

a preponderance of the evidence that the rule received by the State under

paragraph (1) should be withdrawn as a result of the amendment to the

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 EE-RM-PET-100 COMMENT 97
Federal standard. If the Secretary determines that the petitioner has shown

that the rule issued by the State should be so withdrawn, the Secretary shall

withdraw it.

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42 U.S.C. § 6306. Administrative procedure and judicial review

(a) Procedure for prescription of rules

(1) In addition to the requirements of section 553 of Title 5, rules prescribed

under section 6293, 6294, 6295, 6297, or 6298 of this title shall afford

interested persons an opportunity to present written and oral data, views, and

arguments with respect to any proposed rule.

(2) In the case of a rule prescribed under section 6295 of this title, the

Secretary shall, by means of conferences or other informal procedures,

afford any interested person an opportunity to question--

(A) other interested persons who have made oral presentations; and

(B) employees of the United States who have made written or oral

presentations with respect to disputed issues of material fact.

Such opportunity shall be afforded to the extent the Secretary determines

that questioning pursuant to such procedures is likely to result in a more

timely and effective resolution of such issues.

(3) A transcript shall be kept of any oral presentations made under this

subsection.

(b) Petition by persons adversely affected by rules; effect on other laws

(1) Any person who will be adversely affected by a rule prescribed under

section 6293, 6294, or 6295 of this title may, at any time within 60 days

after the date on which such rule is prescribed, file a petition with the United

States court of appeals for the circuit in which such person resides or has his

principal place of business, for judicial review of such rule. A copy of the

petition shall be transmitted by the clerk of the court to the agency which

prescribed the rule. Such agency shall file in the court the written

submissions to, and transcript of, the proceedings on which the rule was

based, as provided in section 2112 of Title 28.

(2) Upon the filing of the petition referred to in paragraph (1), the court shall

have jurisdiction to review the rule in accordance with chapter 7 of Title 5

and to grant appropriate relief as provided in such chapter. No rule under

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 EE-RM-PET-100 COMMENT 97
section 6293, 6294, or 6295 of this title may be affirmed unless supported by

substantial evidence.

(3) The judgment of the court affirming or setting aside, in whole or in part,

any such rule shall be final, subject to review by the Supreme Court of the

United States upon certiorari or certification as provided in section 1254- of

Title 28.

(4) The remedies provided for in this subsection shall be in addition to, and

not in substitution for, any other remedies provided by law.

(5) The procedures applicable under this part shall not--

(A) be considered to be modified or affected by any other provision of law

unless such other provision specifically amends this part (or provisions of

law cited herein); or

(B) be considered to be superseded by any other provision of law unless

such other provision does so in specific terms by referring to this part and

declaring that such provision supersedes, in whole or in part, the

procedures of this part.

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 EE-RM-PET-100 COMMENT 97
10 C.F.R. § 430.23 Test procedures for the measurement of energy and

water consumption.

(j) Clothes washers.

(1) The estimated annual operating cost for automatic and semiautomatic clothes washers shall be--

(i) When electrically heated water is used, the product of the following

three factors:

(A) The representative average-use of 392 cycles per year,

(B) The total per-cycle energy consumption in kilowatt-hours per

cycle determined according to 4.1.6 of appendix J before appendix J1

becomes mandatory and 4.1.7 of appendix J 1 when appendix J- 1

becomes mandatory, (see the note at the beginning of appendix J I),

and

(C) The representative average unit cost in dollars per kilowatt-hour

as provided by the Secretary, the resulting product then being rounded

off to the nearest dollar per year, and

(ii) When gas-heated or oil-heated water is used, the product of: the

representative average-use of 392 cycles per year and the sum of both:

(A) The product of the per-cycle machine electrical energy

consumption in kilowatt-hours per cycle, determined according to

4.1.5 of appendix J before the date that appendix J I to the subpart

becomes mandatory or 4.1.6 of appendix J1 upon the date that

appendix J1 to this subpart becomes mandatory , and the representative

average unit cost in dollars per kilowatt-hours as provided by the

Secretary, and

(B) The product of the per-cycle water energy consumption for gasheated or oil-heated water in BTU per cycle, determined according to

4.1.4 of appendix J before the date that appendix J 1 becomes

mandatory or 4.1.4 of appendix J1 upon the date that appendix J1 to

this subpart becomes mandatory, and the representative average unit

cost in dollars per Btu for oil or gas, as appropriate, as provided by the

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 EE-RM-PET-100 COMMENT 97
Secretary, the resulting product then being rounded off to the nearest

dollar per year.

(2)(i) The energy factor for automatic and semi-automatic clothes

washers is determined in accordance with 4.5 of appendix J before the

date that appendix Ti becomes mandatory or 4.5 of appendix J 1 upon the

date that appendix J 1 to this subpart becomes mandatory. The result shall

be rounded off to the nearest 0.01 cubic foot per kilowatt-hours.

(ii) The modified energy factor'for automatic and semi-automatic clothes

washers is determined in accordance with 4.4 of appendix J before the

date that appendix J 1 becomes mandatory or 4.4 of appendix J 1 upon the

date that appendix J I to this subpart becomes mandatory. The result shall

be rounded off to the nearest 0.01 cubic foot per kilowatt-hours.

(3) Other useful measures of energy consumption for automatic or semiautomatic clothes washers shall be those measures of energy

consumption which the Secretary determines are likely to assist

consumers in making purchasing decisions and which are derived from

the application of appendix J before the date that appendix J1 becomes

mandatory or appendix J1 upon the date that appendix J 1 to this subpart

becomes mandatory. In addition, the annual water consumption of a

clothes washer can be determined by the product of:

(A) The representative average-use of 392 cycles per year, and

(B) The total weighted per-cycle water consumption in gallons per cycle

determined according to 4.3.2 of appendix J before the date that appendix

J 1 becomes mandatory or 4.2.2 of appendix Ti upon the date that

appendix J 1 to this subpart becomes mandatory. The water consumption

factor can be determined in accordance with 4.3.3 of appendix J before

the date that appendix J 1 becomes mandatory or 4.2.3 of appendix J 1

upon the date that appendix Ti to this subpart becomes mandatory. The

remaining moisture content can be determined in accordance with 3.3 of

appendix J before the date that appendix Ti becomes mandatory or 3.8 of

appendix J1 upon the date that appendix J1 to this subpart becomes

mandatory.

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 EE-RM-PET-100 COMMENT 97
Appendix J1 to Subpart B of Part 430 --Uniform Test Method for

Measuring the Energy Consumption of Automatic and Semi-Automatic

Clothes Washers

The provisions of this appendix J1 shall apply to products manufactured

beginning January 1, 2004.

1. DEFINITIONS AND SYMBOLS

1.1 Adaptive control system means a clothes washer control system, other '

than an adaptive water fill control system, which is capable of automatically

adjusting washer operation or washing conditions based on characteristics of

the clothes load placed in the clothes container , without allowing or

requiring consumer intervention or actions. The automatic adjustments may,

for example, include automatic selection, modification, or control of any of

the following: wash water temperature, agitation or turrible cycle time,

number of rinse cycles, and spin speed . The characteristics of the clothes

load, which could trigger such adjustments , could, for example , consist of or

be indicated by the presence of either soil, soap, suds, or any other additive

laundering substitute or complementary product.

Note: Appendix J I does not provide a means for determining the energy

consumption of a clothes washer with an adaptive control system. Therefore,

pursuant to 10 CFR 430.27, a waiver must be obtained to establish an

acceptable test procedure for each such clothes washer.

1.2 Adaptive water fill control system means a clothes washer water fill

control system which is capable of automatically adjusting the water fill

level based on the size or weight of the clothes load placed in the clothes

container, without allowing or requiring consumer intervention or actions.

1.3 Bone-dry means a condition of a load of test cloth which has been dried

in a dryer at maximum temperature for a minimum of 10 minutes, removed

and weighed before cool down, and then dried again for 10 minute periods

until the final weight change of the load is 1 percent or less.

1.4 Clothes container means the compartment within the clothes washer that

holds the clothes during the operation of the machine.

1.5 Compact means a clothes washer which has a clothes container capacity

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 EE-RM-PET-100 COMMENT 97
of less than 1.6 ft3 (45 L).

1.6 Deep rinse cycle means a rinse cycle in which the clothes container is

filled with water to a selected level and the clothes load is rinsed by agitating

it or tumbling it through the water.

1.7 Energy test cycle for a basic model means (A) the cycle recommended

by the manufacturer for washing cotton or linen clothes, and includes all

wash/rinse temperature selections and water levels offered in that cycle, and

(B) for each other wash/rinse temperature selection or water level available

on that basic model, the portion(s) of other cycle(s) with that temperature

selection or water level that, when tested pursuant to these test procedures,

will contribute to an accurate representation of the energy consumption of

the basic model as used by consumers. Any cycle under (A) or (B) shall

include the agitation/tumble operation, spin speed(s), wash times, and rinse

times applicable to that cycle, including water heating time for water heating

clothes washers.

1.8 Load use factor means the percentage of the total number of wash loads

that a user would wash a particular size (weight) load.

1.9 Manual control system means a clothes washer control system which

requires that the consumer make the choices that determine washer operation

or washing conditions, such as, for example, wash/rinse temperature

selections, and wash time before starting the cycle.

1.10 Manual water fill control system means a clothes washer water fill

control system which requires the consumer to determine or select the water

fill level.

1.11 Modified energy factor means the quotient of the cubic foot (or liter)

capacity of the clothes container divided by the total clothes washer energy

consumption per cycle, with such energy consumption expressed as the sum

of the machine electrical energy consumption, the hot water energy

consumption, and the energy required for removal of the remaining moisture

in the wash load.

1.12 Non-water-heating clothes washer means a clothes washer which does

not have an internal water heating device to generate hot water.

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 EE-RM-PET-100 COMMENT 97
1.13 Spray rinse cycle means a rinse cycle in which water is sprayed onto

the clothes for a period of time without maintaining any specific water level

in the clothes container.

1.14 Standard means a clothes washer which has a clothes container capacity

of 1.6 ft3 (45 L) or greater.

1.15 Temperature use factor means, for a particular wash/rinse temperature

setting, the percentage of the total number of wash loads that an average user

would wash with that setting. '

1.16 Thermostatically controlled water valves means clothes washer controls

that have the ability to sense and adjust the hot and cold supply water.

1.17 Uniformly distributed warm wash temperature selection(s) means (A)

multiple warm wash selections for which the warm wash water temperatures

have a linear relationship with all discrete warm wash selections when the

water temperatures are plotted against equally spaced consecutive warm

wash selections between the hottest warm wash and the coldest warm wash.

If the warm wash has infinite selections, the warm wash water temperature

has a linear relationship with the distance on the selection device (e.g. dial

angle or slide movement) between the hottest warm wash and the coldest

warm wash. The criteria for a linear relationship as specified above is that

the difference between the actual water temperature at any warm wash

selection and the point where that temperature is depicted on the

temperature/selection line formed by connecting the warmest and the coldest

warm selections is less than +-5 percent. In all cases, the mean water

temperature of the warmest and the coldest warm selections must coincide

with the mean of the "hot wash" (maximum wash temperature <=135° F

(57.2° C)) and "cold wash" (minimum wash temperature) water

temperatures within +-3.8° F (+-2.1 ° C); or (B) on a clothes washer with

only one warm wash temperature selection, a warm wash temperature

selection with a water temperature that coincides with the mean of the "hot

wash" (maximum wash temperature <=135° F (57.2° C)) and "cold wash"

(minimum wash temperature) water temperatures within +-3.8° F (+-2.1° Q.

1.18 Warm wash means all wash temperature selections that are below the

hottest hot, less than 135° F (57.2° C), and above the coldest cold

temperature selection.

19

 EE-RM-PET-100 COMMENT 97
1.19 Water consumption factor means the quotient of the total weighted percycle water consumption divided by the cubic foot (or liter) capacity of the

clothes washer.

1.20 Water-heating clothes washer means a clothes washer where some or

all of the hot water for clothes washing is generated by a water heating

device internal to the clothes washer.

1.21 Symbol usage. The following identity relationships are provided to help

clarify the symbology used throughout this procedure.

1.22 Cold rinse means the coldest rinse temperature available on the

machine (and should be the same rinse temperature selection tested in 3.7 of

this appendix).

1.23 Warm rinse means the hottest rinse temperature available on the

machine (and should be the same rinse temperature selection tested in 3.7 of

this appendix).

E--Electrical Energy Consumption

H--Hot Water Consumption

C--Cold Water Consumption

R--Hot Water Consumed by Warm Rinse

ER--Electrical Energy Consumed by Warm Rinse

TUF--Temperature Use Factor

HE--Hot Water Energy Consumption

F--Load Usage Factor

Q--Total Water Consumption

ME--Machine Electrical Energy Consumption

RMC--Remaining Moisture Content

20

 EE-RM-PET-100 COMMENT 97
WI--Initial Weight of Dry Test Load

WC--Weight of Test Load After Extraction

m--Extra Hot Wash (maximum wash temp. >135° F (57.2° C.))

h--Hot Wash (maximum wash temp. <==135° F (57.2° C.))

w--Warm Wash

c--Cold Wash (minimum wash temp.)

r--Warm Rinse (hottest rinse temp.)

x or max--Maximum Test Load

a or avg--Average Test Load

n or min--Minimum Test Load

The following examples are provided to show how the above symbols can

be used to define variables:

Em%l="electrical Energy Consumption" for an "Extra Hot Wash" and

"Maximum Test Load"

R%l="at Water Consumed by Warm Rinse" for the "Average Test Load"

TUF%l="temperature Use Factor" for an "Extra Hot Wash"

HEin%1="minWater Energy Consumption" for the "Minimum Test Load"

21

 EE-RM-PET-100 COMMENT 97
10 C.F.R. § 430.32 Energy conservation standards and effective dates,

(g) Clothes washers.

(1) Clothes washers manufactured before January 1, 2004, shall have an

energy factor no less than:

factor

(cu.ft./kWh/cycle)

Product Class Energy

-----------------------------------------------------------------------

i. Top-Loading, Compact (less than 1.6 ft.3

capacity) ............................................. 0.9.

ii. Top-Loading, Standard (1.6 ft.3 or greater

capacity) ............................................. 1.18.

iii. Top-Loading, Semi-Automatic ...................... [FN1] Not

Applicable.

iv. Front-Loading .................................... [FN1] Not

Applicable.

v. Suds-saving ...................................... [FN1] Not

Applicable.

----------------------------------------------------------------------

FN1 Must have an unheated rinse water option.

(2) Clothes washers manufactured on or after January 1, 2004, -and before

January 1, 2007, shall have a modified energy factor no less than:

factor

(cu.ft./kWh/cycle)

Product Class Modified energy

------------------------------------------------------------------------

i. Top-Loading, Compact (less than 1.6 ft.3

capacity) ............................................ 0.65.

ii. Top-Loading, Standard (1.6 ft.3 or greater

capacity) ............................................ 1.04.

iii. Top-Loading, Semi-Automatic ..................... [FN1] Not

Applicable.

iv. Front-Loading ..................................... 1.04.

v. Suds-saving ...................................... [FN1] Not

Applicable.

FN1 Must have an unheated rinse water option.

22

 EE-RM-PET-100 COMMENT 97
(3) Clothes washers manufactured on or after January 1, 2007, shall have a

modified energy factor no less than:

factor

(cu.ft./kWh/cycle)

Product Class Modified energy

-----------------------------------------------------------------------

i. Top-Loading, Compact (less than 1.6 ft.3

capacity) ............................................ 0.65.

ii. Top-Loading, Standard (1-.6 ft.3 or greater

capacity) ............................................ 1.26.

iii. Top-Loading, Semi-Automatic ...................... [FN1] Not

Applicable.

iv. Front-Loading ..................................... 1.26.

v. Suds-saving ...................................... [FN1] Not

Applicable.

-----------------------------------------------------------------------

FN1 Must have an unheated rinse water option.

23

 EE-RM-PET-100 COMMENT 97
10 C.F.I. § 430.42 Filing requirements.

(f) Acceptance for filing.

(1) Within fifteen ( 15) days of the receipt of a petition , the Secretary will

either accept it for filing or reject it, and the petitioner will be so notified

in writing . The Secretary will serve a copy of this notification on each

other party served by the'petitioner. Only such petitions which conform

to the requirements of this subpart and which contain sufficient

information for the purposes of a substantive decision will be accepted

for filing. Petitions which do not so conform will be rejected and an

explanation provided to petitioner in writing.

(2) For purposes of the Act and this subpart, a petition is deemed to be

filed on the date it is accepted for filing.

24

 EE-RM-PET-100 COMMENT 97
10 C.F.R. § 430.48 Request for reconsideration.

(a) Any petitioner whose petition for a rule has been denied may request

reconsideration within 30 days of denial. The request shall contain a

statement of facts and reasons supporting reconsideration and shall be

submitted in writing to the Secretary.

(b) The denial of a petition will be reconsidered only where it is alleged and

demonstrated that the denial was based on error in law or fact and that

evidence of the error is found in the record of the proceedings.

(c) If the Secretary fails to take action on the request for reconsideration

within 30 days, the request is deemed denied, and the petitioner may seek

such judicial review as may be appropriate and available.

(d) A petitioner has not exhausted other administrative remedies until a

request for reconsideration has been filed and acted upon or deemed denied.

25

 EE-RM-PET-100 COMMENT 97
26

 EE-RM-PET-100 COMMENT 97
§ 25008. State policy ; energy and water conservation; alternate supply

sources; energy or water facilities at state-owned sites

It is further the policy of the state and the intent of the Legislature to

promote all feasible means of energy and water conservation and all feasible

uses of alternative energy and water supply sources.

27

 EE-RM-PET-100 COMMENT 97
§ 25402. Reduction of wasteful, uneconomic, inefficient or unnecessary

consumption of energy

The commission shall, after one or more public hearings, do all of the

following, in order to reduce the wasteful , uneconomic , inefficient, or

unnecessary consumption of energy:

(c)(1) Prescribe, by regulation, standards for minimum levels of operating

efficiency, based on a reasonable use pattern , and may prescribe other cost

effective measures, including incentive programs, fleet averaging, energy

consumption labeling not preempted by federal labeling, and consumer

education programs, to promote the use of energy efficient appliances whose

use, as determined by the commission, requires a significant amount of

energy on a statewide basis. The minimum levels of operating efficiency

shall be based on feasible and attainable efficiencies or feasible improved

efficiencies that will reduce the electrical energy consumption growth rate.

The standards shall become effective no sooner than one year after the date

of adoption or revision . No new appliance manufactured on or after the

effective date of the standards may be sold or offered for sale in the state,

unless it is certified by the manufacturer thereof to be in compliance with the

standards. The standards shall be drawn so that they do not result in any

added total costs to the consumer over the designed life of the appliances

concerned.

(2) No new appliance , except for any plumbing fitting, regulated under

paragraph (1), which is manufactured on or after July 1, 1984, may be sold,

or offered for sale, in the state , unless the date of the manufacture is

permanently displayed in an accessible place on that appliance.

(3) During the period of five years after the commission has adopted a

standard for a particular appliance under paragraph ( 1), no increase or

decrease in the minimum level of operating efficiency required by the

standard for that appliance shall become effective, unless the commission

adopts other cost-effective measures for that appliance.

(4) Neither the commission nor any other state agency shall take any action

to decrease any standard adopted under this subdivision on or before June

30, 1985, prescribing minimum levels of operating efficiency or other

28

 EE-RM-PET-100 COMMENT 97
energy conservation measures for any appliance, unless the commission

finds by a four-fifths vote that a decrease is of benefit to ratepayers, and that

there is significant evidence of changed circumstances. Prior to January 1,

1986, the commission shall not take any action to increase any standard

prescribing minimum levels of operating efficiency for any appliance or

adopt any new standard under paragraph (1). Prior to January 1, 1986, any

appliance manufacturer doing business in this state shall provide directly, or

through an appropriate trade or industry association, information, as

specified by the commission after consultation with manufacturers doing

business in the state and appropriate trade or industry associations on sales

of appliances so that the commission may study the effects of regulations on

those sales. These informational requirements shall remain in effect until the

information is received. The trade or industry association may submit sales

information in an aggregated form in a manner that allows the commission

to carry out the purposes of the study. The commission shall treat any sales

information of an individual manufacturer as confidential and that

information shall not be a public record. The commission shall not request

any information that cannot be reasonably produced in the exercise of due

diligence by the manufacturer. At least one year prior to the adoption or

amendment of a standard for an appliance, the commission shall notify the

Legislature of its intent, and the justification therefor, to adopt or amend a

standard for the appliance. Notwithstanding paragraph (3) and this

paragraph, the commission may do any of the following:

(A) Increase the minimum level of operating efficiency in an existing

standard up to the level of the National Voluntary Consensus Standards 90,

adopted by the American Society of Heating, Refrigeration, and Air

Conditioning Engineers or, for appliances not covered by that standard, up to

the level established in a similar nationwide consensus standard.

(B) Change the measure or rating of efficiency of any standard, if the

minimum level of operating efficiency remains substantially the same.

(C) Adjust the minimum level of operating efficiency in an existing standard

in order to reflect changes in test procedures that the standards require

manufacturers to use in certifying compliance, if the minimum level of

operating efficiency remains substantially the same.

(D) Readopt a standard preempted, enjoined, or otherwise found legally

defective by an administrative agency or a lower court, if final legal action

29

 EE-RM-PET-100 COMMENT 97
determines that the standard is valid and if the standard that is readopted is

not more stringent than the standard that was found to be defective or

preempted.

(E) Adopt or amend any existing or new standard at any level of operating

efficiency, if the Governor has declared an energy emergency pursuant to

Section 8558 of the Government Code.

(5) Notwithstanding paragraph (4), the commission may adopt standards

pursuant to commission order No. 84-0111-1, on or before June 30, 1985.

(e) The commission shall do all of the following:

(1) Not later than January 1, 2004, amend any regulations in effect on

January 1, 2003, pertaining to the energy efficiency standards for residential

clothes washers to require that residential clothes washers manufactured on

or after January 1, 2007, be at least as water efficient as commercial clothes

washers.

(2) Not later than April 1, 2004, petition the federal Department of Energy

for an exemption from any relevant federal regulations governing energy

efficiency standards that are applicable to residential clothes washers.

(3) Not later than January 1, 2005, report to the Legislature on its progress

with respect to the requirements of paragraphs (1) and (2).

30

 EE-RM-PET-100 COMMENT 97
31

 EE-RM-PET-100 COMMENT 97
§ 1602. Definitions.

(p) Clothes Washers.

"Automatic clothes washer" means a clothes washer that has a control

system that is capable of scheduling a pre-selected combination of

operations, such as regulation of water temperature, regulation of the water

fill level, and performance of wash, rinse, drain, and spin functions without

the need for user intervention subsequent to the initiation of machine

operation. Some models may require user intervention to initiate these

different segments of the cycle after the machine has begun operation, but

they do not require the user to intervene to regulate the water temperature by

adjusting the external water faucet valves.

"Clothes washer" means an appliance designed to clean clothes, utilizing a

water solution of soap or detergent and mechanical agitation or other

movement.

"Commercial clothes washer" means a soft mount front-loading or soft

mount top-loading clothes washer with clothes container compartment no

greater than 3.5 ft3 for horizontal-axis clothes washers, or no greater than 4.0

ft3 for vertical-axis clothes washers, that is designed for use in (1)

applications where the occupants of more than one household will be using

it, such as multi-family housing common areas and coin laundries; or (2)

other commercial applications.

"Compact clothes washer" means a clothes washer of less than 1.6 ft3 in

clothes container compartment capacity.

"Cycle" means a sequence of operations of a clothes washer that performs a

complete washing operation.

"Energy factor" of a clothes washer means ft3 per kWh per cycle, as

determined using the applicable test method in Section 1604(p).

"Front-loading clothes washer" means a clothes washer . with the clothes

container compartment access located on the front of the machine.

32

 EE-RM-PET-100 COMMENT 97
"Modified energy factor (MEF)" of a clothes washer means the quotient of

the ft3 capacity of the clothes container divided by the total clothes washer

energy consumption per cycle, with such energy consumption expressed as

the sum of the machine electrical energy consumption, the hot water energy

consumption, and the energy required for removal of the remaining moisture

in the wash load, as determined using the applicable test method in Section

1604(p).

"Semi-automatic clothes washer" means a clothes washer that is the same as

an automatic clothes washer except' that user intervention is required to

regulate the water temperature by adjusting the external water faucet valves.

"Soft mount clothes washer" means a clothes washer that does not require

mechanical fastening to a floor for proper operating performance under

typical commercial clothes washer applications.

"Standard clothes washer" means a clothes washer of 1.6 ft 3 or more in

clothes container compartment capacity.

"Suds-saving" means a feature or option on a clothes washer which allows

the user to store used wash water in an external laundry tub for use with

subsequent wash loads.

"Top-loading clothes washer" means a clothes washer with the clothes

container compartment access located on the top of the machine.

"Water factor" means the quotient of the total weighted per-cycle water

consumption divided by the capacity of the clothes washer, determined using

the applicable test method in Section 1604(p).

33

 EE-RM-PET-100 COMMENT 97
§ 1603. Testing: All Appliances.

(a) Testing Requirements. The manufacturer shall cause the testing of units

of each basic model of appliance within the scope of Section 1601, using the

applicable test method listed in Section 1604... .

§ 1604. Test Methods for Specific Appliances.

(p) Clothes Washers. The test methods for clothes washers are shown in

Table P-1.

Table P-1

Clothes Washer Test Methods

AppJctrrecr Trs1 Merhod

clodtes washers drat we consumer

Fmkiets

10 CPR Section 430,23 0) (Appendix 31 to

Subpart B of Part 430) (2004)

Cotrunezcial ckid a washcn 14 CFR Section 430.230) (Appendix J I to

Subpart B of Pact 430} (2004)

34

 EE-RM-PET-100 COMMENT 97
§ 1605. Energy Performance, Energy Design, Water Performance,

and Water Design Standards: In General.

(b) California Standards for Federally-Regulated Appliances. Section

1605.2 contains standards that are exclusively California standards. They

are applicable as state law to the sale and offering for sale of appliances

in California. Because the standards apply to federally-regulated

appliances, they take effect as state law only on (1) the effective date of a

U.S. Department of Energy waiver from federal preemption; or (2) one

year after removal of federal preemption by action such as a change in

federal law, but no earlier than July 1, 2004. When an applicable standard

in Section 1605.2 takes effect as state law, no appliance may be sold or

offered for sale in California unless the appliance complies with the

standard as determined using the applicable test method in Section 1604

(and with all the other applicable requirements of this Article).

35

 EE-RM-PET-100 COMMENT 97
§ 1605.2. State Standards for Federally-Regulated Appliances.

(p) Clothes Washers.

(1) Water Efficiency Standards for Residential Clothes Washers.

The water factor of clothes washers that are consumer products shall be

no greater than the applicable values shown in Table P-3.

Table P-3 Water Efficiency Standards for Clothes Washers

ApplicMe

Maximum Water Parlor

{Gallcnrslraiefool)

Effective 1winive

Jnrwdry 1, 2007 January 1, 2410

Tap- din$okrth^s wash= 815 CO

Ftam-]aiding cIo1h w+ashcrs 8.5 6.0

36

 EE-RM-PET-100 COMMENT 97
§ 1605.3. State Standards for Non-Federally-Regulated Appliances.

(p) Commercial Clothes Washers.

(1) Energy and Water Efficiency Standards for Commercial FrontLoading and Commercial Top-Loading Automatic Clothes Washers. The

modified energy factor and water factor of commercial front-loading and

commercial top-loading automatic clothes washers manufactured on or

after the dates indicated in Table P-4 that are not consumer products shall

be not less than (modified energy factor) and not more than (water factor)

the applicable values shown in Table P-4.

Table P-,4

Standards for Commercial Clothes Washers

Clothes Contairoer

Minimtun

Mod{trzd F crgv

Factor

MaMmum

Water Factor

Efrertve

Comparrmcnr Capacity F ctlve Jtin ary

APPlinnce ft ? Jnnunry 1. 2003 1, 2007

Front-1otding -, 15ft3

ck (he crashers

1.26 9.5

Top-dond'II^$$

clothes WBShtt3

< u6 ft s O4. 9.5

1.6WMd44.OW 1.26 9.5

37

 EE-RM-PET-100 COMMENT 97
t^,,Tqo. 1561

 EE-RM-PET-100 COMMENT 97
BILL NUMBER: AB 1561 CHAPTERED BILL TEXT

CHAPTER 421

FILED WITH SECRETARY OF STATE SEPTEMBER 9, 2002

APPROVED BY GOVERNOR SEPTEMBER 7, 2002

PASSED THE ASSEMBLY AUGUST 20, 2002

PASSED THE SENATE AUGUST 12, 2002

AMENDED IN SENATE AUGUST 5, 2002-

AMENDED IN SENATE JUNE 20, 2002

AMENDED IN SENATE APRIL 11, 2002

AMENDED IN SENATE SEPTEMBER 4, 2001

AMENDED IN SENATE JUNE 26, 2001

AMENDED IN ASSEMBLY APRIL 26, 2001

AMENDED IN ASSEMBLY MARCH 29, 2001

INTRODUCED BY Assembly Member Kelley

(Coauthor: Assembly Member Pavley)

FEBRUARY 23, 2001

An act to amend Section 25402 of the Public Resources Code, relating to

energy resources.

LEGISLATIVE COUNSEL'S DIGEST

AB 1561, Kelley. Energy efficiency standards: clothes washers.

Existing law requires the State Energy Resources Conservation and

Development Commission, after one or more public hearings, to prescribe,

by regulation, among other things, certain energy efficiency standards, cost

effective measures, and consumer education programs, to promote the use of

energy efficient appliances whose use, as determined by the commission,

requires a significant amount of energy on a statewide basis.

This bill would require the commission, not later than January 1,

2004, to amend existing regulations pertaining to energy efficiency

standards for residential clothes washers to require these clothes washers

manufactured on or after January 1, 2007 to be at least as efficient as

commercial washers. The bill would also require the commission, not later

than April 1, 2004, to petition the federal Department of Energy for an

exemption from any federal regulations governing energy efficiency

39

 EE-RM-PET-100 COMMENT 97
standards that are applicable to residential clothes washers, and to report to

the Legislature on its progress with respect to the above requirements not

later than January 1, 2005.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS

FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:

(a) Significant amounts of energy are consumed in the state through

pumping water, water treatment, and sewage treatment.

(b) Water conservation is a proven tool that will make the most effective

use of the state's limited water supply, and will conserve energy.

(c) A significant portion of urban water demand in the state is for

residential clothes washers.

(d) Section 17138 of the Revenue and Taxation Code includes in the

description of water efficient clothes washers that qualify for a tax credit

those clothes washers that meet specified water efficiency standards, as

determined by the State Energy Resources Conservation and Development

Commission.

(e) The State Energy Resources Conservation and Development

Commission established a water energy efficiency standard for all

commercial clothes washers sold in California on and after January 1,

2007.

(f) The federal Department of Energy regulations preempt the state from

establishing a maximum water factor for residential clothes washers.

SEC. 2. Section 25402 of the Public Resources Code is amended to read:

25402. The commission shall, after one or more public hearings, do all of

the following, in order to reduce the wasteful, uneconomic, inefficient, or

unnecessary consumption of energy:

40

 EE-RM-PET-100 COMMENT 97
(e) The commission shall do all of the following:

(1) Not later than January 1, 2004, amend any regulations in effect on

January 1, 2003, pertaining to the energy efficiency standards for residential

clothes washers to require that residential clothes washers manufactured on

or after January 1, 2007, be at least as water efficient as commercial clothes

washers.

(2) Not later than April 1, 2004, petition the federal Department of Energy

for an exemption from any relevant federal regulations governing energy

efficiency standards that are applicable to residential clothes washers.

(3) Not later than January 1, 2005, report to the Legislature on its progress

with respect to the requirements of paragraphs (1) and (2).

41

 EE-RM-PET-100 COMMENT 97
42

 EE-RM-PET-100 COMMENT 97
100TH CONGRESS } HOUSE OF REPRESENTATIVES 1st Session

REPORT

No. 100-11

NATIONAL APPLIANCE ENERGY CONSERVATION ACT

NAxcx 3, 1987.-Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. DINGFLL, from the Committee on Energy and Commerce,

submitted the following

REPORT

together with

DISSENTING VIEWS

[To accompany H.R. 87]

[Including cost estimate of the Congressional Budget Office]

The Committee on Energy and Commerce, to whom was referred

the bill (H.R. 87) to amend the Energy Policy and Conservation Act

with respect to energy conservation standards for appliances,

having considered the same, report favorably thereon with an

amendment and recommend that the bill as amended do pass.

CONTENTS

Page

The Amendment............................................................................................................. 1

Purpose and Summary ............................... ................................................................... 18

Background and Need for Legislation ........................................................................ 26

Hearings........................................................................................................................... 31

Committee Consideration ............................................................................................. 31

Committee Oversight Findings .................................................................................... 31

Committee on Government Operations ..................................................................... 31

Committee Cost Estimate .......................... ................................................................... 31

Congressional Budget Office Estimate ....................................................................... 32

Inflationary Impact Statement.................................................................................... 32

Section-by-Section Analysis and Discussion .............................................................. 32

Changes in Existing Law Made by the Bill, As Reported ...................................... 40

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof

the following:

9 1 -006

 EE-RM-PET-100 COMMENT 97
2

SECTION 1. SHORT TITLE.

This Act may be cited as the "National Appliance Energy Conservation Act of 1987".

SEC. 2. DEFINITIONS.

(a) ENERGY CONSERVATION STANDARD.-Section 321(a)(6) of the Energy Policy and

Conservation Act (42 U.S.C. 6291(a)(6)) is amended to read as follows:

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

"(A) a performance standard which prescribes a minimum level of ener

efficiency or a maximum quantity of energy use for a covered product de.

termined in accordance with test procedures prescribed under section 323,

or

"(B) a design requirement for the products specified in paragraphs (6),(7),

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

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

(b) NEW DEFINITIONs.-Section 321(a) of the Energy Policy and Conservation Act

(42 U.S.C. 6291(a)) is amended by adding at the end the following paragraphs:

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

freezers, and freezers, as defined in the applicable test procedure prescribed

under section 323.

"(20) The term `annual fuel utilization efficiency' means the efficiency de.

scriptor for furnaces and boilers, determined using test procedures prescribed

under section 323 and based on the assumption that all-

"(A) weatherized warm air furnaces or boilers are located out-of-doors-

"(B) warm air furnaces which are not weatherized are located indoors

and all combustion and ventilation air is admitted through grills or ducts

from the outdoors and does not communicate with air in the conditioned

space; and

"(C) boilers which are not weatherized are located within the heated

space.

"(21) The term `central air conditioner' means a product, other than a pack.

aged terminal air conditioner, which-

"(A) is powered by single phase electric current;

"(B) is air-cooled;

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

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

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

"(22) The term- 'efficiency descriptor' means the ratio of the useful output to

the total energy input, determined using the test procedures prescribed under

section 323 and expressed for the following products in the following terms:

"(A) For furnaces and direct heating equipment, annual fuel utilization

efficiency.

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

"(C) For central air conditioning and central air conditioning heat pumps,

seasonal energy efficiency ratio.

"(D) For water heaters, energy factor.

"(E) For pool heaters, thermal efficiency.

"(23) The term 'furnace' means a product which utilizes only single-phase

electric current, or single-phase electric current or DC current in conjunction

with natural gas, propane, or home heating oil, and which-

"(A) is designed to be the principal heating source for the living space of

a residence;

"(B) is not contained within the same cabinet with a central air conditioner whose rated cooling capacity is above 65,000 Btu per hour;

"(C) is an electric central furnace, electric boiler, forced-air central furnace, gravity central furnace, or low pressure steam or hot water boiler,

and

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

boilers and low pressure steam or hot water boilers and less than 225,000

Btu per hour for forced-air central furnaces, gravity central furnaces, and

electric central furnaces.

"(24) The terms 'heat pump' or `reverse cycle' mean a product, other than a

packaged terminal heat pump, which-

"(A) consists of one or more assemblies;

"(B) is powered by single phase electric current;

3

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

"(D) utilizes an indoor conditioning coil, compressors, and refrigerant-tooutdoor=air heat exchanger to provide air heating; and

"(E) may also provide air cooling, dehumidifying, humidifying circulating,

and air cleaning.

"(25) The term 'pool heater' means an appliance designed for heating nonpotable water contained at atmospheric pressure, including heating water in

swimming pools, spas, hot tubs and similar applications.

"(26) The term `thermal efficiency of pool heaters' means a measure of the

heat in the water delivered at the heater outlet divided by the heat input of the

pool heater as measured under test conditions specified in section 2.8.1 of the

American National Standard for Gas Fired Pool Heaters, Z21.56-1986, or as

may be prescribed by the Secretary.

"(27) The term 'water heater' means a product which utilizes oil, gas, or electricity to heat potable water for use outside the heater upon demand, including- (A) storage type units which heat and store water at a thermostatically

controlled temperature, including gas storage water heaters with an input

of 75,000 Btu per hour or less, oil storage water heaters with an input of

105,000 Btu per hour or less, and electric storage water heaters with an

input of 12 kilowatts or less;

(B) instantaneous type units which heat water but contain no more than

one gallon of water per 4,000 Btu per hour of input, including gas instantaneous water heaters with an input of 200,000 Btu per hour or less, oil instantaneous water heaters with an input of 210,000 Btu per hour or less,

and electric instantaneous water heaters with an input of 12 kilowatts or

less; and

"(C) heat pump type units, with a maximum current rating of 24 amperes

at a voltage no greater than 250 volts, which are products designed to

transfer thermal energy from one temperature level to a higher temperature level for the purpose of heating water, including all ancillary equipment such as fans, storage tanks, pumps, or controls necessary for the

device to perform its function.

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

boiler designed for installation outdoors, approved for resistance to wind, rain,

and snow, and supplied with its own venting system."

SEC. 3. COVERAGE.

Section 322(a) of the Energy Policy and Conservation Act (42 U.S.C. 6292(a)) is

amended to read as follows:

"COVERAGE

"SEC. 322. (a) IN GENERAL.-The following consumer products, excluding those

consumer products designed solely for use in recreational vehicles and other mobile

equipment, are covered products:

(1) Refrigerators, refrigerator-freezers, and freezers which can be operated by

alternating current electricity, excluding-

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

"(B) any type which does not include a compressor and condenser unit as

an integral part of the cabinet assembly.

"(2) Room air conditioners.

"(3) Central air conditioners and central air conditioning heat pumps.

"(4) Water heaters.

"(5) Furnaces.

"(6) Dishwashers.

"(7) Clothes washers.

"(8) Clothes dryers.

"(9) Direct heating equipment.

"(10) Kitchen ranges and ovens.

"(11) Pool heaters.

"(12) Television sets.

"(13) Any other type of consumer product which the Secretary classifies as a

covered product under subsection (b)."

SEC. 1. TEST PROCEDI:RES.

Section 323 of the Energy Policy and Conservation Act (42 U.S.C. 6293) is amended to read as follows:

 EE-RM-PET-100 COMMENT 97
4

"TEST PROCEDURES

"SEC. 323. (a) GENERAL, RULE.-All test procedures and related determinations pre,

scribed or made by the Secretary with respect to any covered product (or class thereof) which are in effect on the date of enactment of the National Appliance

Energy Conservation Act of 1987 shall remain in effect until the Secretary anienc15

such test procedures and related determinations under subsection (b).

"(b) AMENDED AND NEW PROCEDURES.-(1)(A) The Secretary may amend test pro,

cedures with respect to any covered product if the Secretary determines that

amended test procedures would more accurately or fully comply with the require,

ments of paragraph (3).

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

prescribe test procedures for any consumer product classified as a covered produ^

under section 322(b).

"(C) The Secretary shall direct the National Bureau of Standards to assist in de_

veloping new or amended test procedures.

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

any interested person, that a test procedure should be prescribed or amended, the

Secretary shall promptly publish in the Federal Register proposed test procedures

and afford interested persons an opportunity to present oral and written data,

views, and arguments with respect to such procedures. The comment period shall

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

than 270 days. In prescribing or amending a test procedure, the Secretary shall take

into account such information as the Secretary determines relevant to such prose.

dure, including technological developments relating to energy use or energy efficien.

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

"(3) Any test procedures prescribed or amended under this section shall be reason.

ably designed to produce test results which measure energy efficiency, energy use,

or estimated annual operating cost of a covered product during a representative av

erage use cycle or period of use, as determined by the Secretary, and shall not be

unduly burdensome to conduct.

"(4) If the test procedure is a procedure for determining estimated annual operat.

ing costs, such procedure shall provide that such costs shall be calculated from

measurements of energy use in a representative average use cycle or period of use,

as determined by the Secretary, and from representative average unit costs of the

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

of energy.

(c) RESTRICTION ON CERTAIN REPRESENTATIONS.-(1) No manufacturer, distributor,

retailer, or private labeler may make any representation-

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

"(B) in any broadcast advertisement,

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

procedure is applicable under subsection (a) or the cost of energy consumed by such

product, unless such product has been tested in accordance with such test procedure

and such representation fairly discloses the results of such testing.

"(2) Effective 180 days after an amended or new test procedure applicable to a

covered product is prescribed under subsection (b), no manufacturer, distributor, retailer, or private labeler may make any representation-

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

"(B) in any broadcast advertisement,

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

by such product, unless such product has been tested in accordance with such

amended or new test procedures and such representation fairly discloses the results

of such testing.

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

filed not later than the 60th day before the expiration of the period involved, the

180-day period referred to in paragraph (2) may be extended by the Secretary with

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

the Secretary determines that the requirements of paragraph (2) would impose an

undue hardship on such petitioner.

"(d) CASE IN WHICH TEST PROCEDURE IS NOT REQUIRED.-(1) The Secretary is not

required to publish and prescribe test procedures for a covered product (or class

thereof) if the Secretary determines, by rule, that test procedures cannot be developed which meet the requirements of subsection (b)(3) and publishes such determination in the Federal Register, together with the reasons therefor.

5

'(2) For purposes of section 327, a determination under paragraph (1) with respect

to any covered product or class shall have the same effect as would a standard prescribed for a covered product (or class).

"(e) AMENDMENT OF STANDARD.-(1) In the case of any amended test procedure

which is prescribed pursuant to this section, the Secretary shall determine, in the

rulemaki' carried out with respect to prescribing such procedure, to what extent,

if any, the proposed test procedure would alter the measured energy efficiency or

measured energy use of any covered product as determined under the existing test

Procedure. if the Secretary determines that the amended test procedure will alter the

measured efficiency or measured use, the Secretary shall amend the applicable

energy conservation standard during the rulemaking carried out with respect to

such test procedure. In determining the amended energy conservation standard, the

Secretary shall measure, pursuant to the amended test procedure, the energy efficiency or energy use of a representative sample of covered products that minimally

comply with the existing standard. The average of such energy efficiency or energy

use levels determined under the amended test procedure shall constitute the amended energy conservation standard for the applicable covered products.

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

energy

conservation standard becomes effective (or revisions of such models that

come into use after such date and have the same energy efficiency or energy use

cliaracteristics) that comply with the energy conservation standard applicable to

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

the amended energy conservation standard.

"(4) The Secretary's authority to amend energy conservation standards under this

subsection shall not affect the Secretary's obligation to issue final rules as described

in section 325."

SEC 5. ENERGY CONSERVATION STANDARDS.

Section 325 of the Energy Policy and Conservation Act (42 U.S.C. 6295) is amended to read as follows:

"ENERGY CONSERVATION STANDARDS

"SEc. 325. (a) PuRFosFs.-The purposes of this section are to-

"(1) provide Federal energy conservation standards applicable to covered

products; and

"(2) authorize the Secretary to prescribe amended or new energy conservation

standards for each type (or class) of covered product.

"(b) STANDARDS FOR REFRIGERATORS , REFRIGERATOR-FREEZERS, AND FREEZERS.-(1)

The following is the maximum energy use allowed in kilowatt hours per year for

the following products (other than those described in paragraph (2)) manufactured

on or after January 1, 1990:

Energy Standards

Equations

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

Refrigerator-Freezerspartial automatic defrost .................................. 21.8 AV + 429

Refrigerator-Freezers-automatic defrost with:

Top mounted freezer without ice ....................................................... 23 .5 AV +471

Side mounted freezer without ice:--. .............................................. 27 .7 AV+ 488

Bottom mounted freezer without ice ................................................. 27 .7 AV+488

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

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

Upright Freezers with:

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

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

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

"(2) The standards described in paragraph (1) do not apply to refrigerators and

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

"(3)(A)(i) The Secretary shall publish a proposed rule, no later than July 1, 1988,

to determine if the standards established by paragraph (1) should be amended. The

Secretary shall publish a final rule no later than July 1, 1989, which shall contain

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

manufactured on or after January 1, 1993. If such a final rule is not published

before January 1, 1990, any amendment of such standards shall apply to products

manufactured on or after January 1, 1995. Nothing in this subsection provides any

 EE-RM-PET-100 COMMENT 97
6

justification or defense for a failure by the Secretary to comply with the nondiscre,

tionary duty to publish final'rules by the dates stated in this paragraph.

"(ii)( 1) If the Secretary does not publish a final rule before January 1, 1990, relating to the revision of the energy conservation standards for refrigerators, refrigerator-freezers and freezers, the regulations which established standards for such products and were promulgated by the California Energy Commission on December 14,

1984, to be effective January 1, 1992 (or any amendments to such standards that are

not more stringent than the standards in the original regulations), shall apply in

California to such products, effective beginning January 1, 1993, and shall not be

preempted after such effective date by any energy conservation standard established

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

"(II) If the Secretary does not publish a final rule before January 1, 1992, relating

to the revision of the energy conservation standards for refrigerators, refrigerator.

freezers and freezers, State regulations which apply to such products manufactured

on or after January 1, 1995, shall apply to such products until the effective date of a

rule issued under this section with respect to such products.

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

shall publish a final rule no later than five years after the date of publication of the

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

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

"(C) Any amendment prescribed under subparagraph (B) shall apply to products

manufactured after a date which is five years after-

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

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

by which the previous amendment could have been effective;

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

within three years after publication of the final rule establishing such amended

standard.

"(C) STANDARDS FOR ROOM AIR CONDITIONERS.-(1) The energy efficiency ratio of

room air conditioners shall be not less than the following for products manufactured

on or after January 1, 1990:

"Product Class

Without Reverse Cycle and With Louvered Sides:

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

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

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

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

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

Without Reverse Cycle and Without Louvered Sides:

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

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

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

14,000 to 19,999 Btu ............................................................................................... 8.5

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

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

With Reverse Cycle, Without Louvered Sides .......................................................... 8.0

"(2)(A) The Secretary shall publish a final rule no later than January 1, 1992, to

determine if the standards established under paragraph (1) should be amended.

Such rule shall contain such amendment, if any, and provide that the amendment

shall apply to products manufactured on or after January 1, 1995.

"(B) After January 1, 1992, the Secretary shall publish a final rule no later than

five years after the date of publication of a previous final rule. The Secretary shall

determine in such rule whether to amend the standards in effect for room air conditioners.

(C) Any amendment prescribed under subparagraph (B) shall apply to products

manufactured after a date which is five years after11(i) the effective date of the previous amendment; or

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

by which a previous amendment could have been effective;

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

within three years after publication of the final rule establishing such amended

standard.

"(d) STANDARDS FOR CENTRAL AIR CONDITIONERS AND HEAT PUMPS.-(1) The seasonal energy efficiency ratio of central air conditioners and central air conditioning

heat pumps shall be not less than the following:

7

"iA) Split Systems: 10.0 for products manufactured on or after January 1,

1992. "(B) Single Package Systems: 9.7 for products manufactured on or after January 1, 1993. "(2) The heating seasonal performance factor of central air conditioning heat

pumps shall be not less than the following:

(A) Split Systems: 6.8 for products manufactured on or after January 1, 1992.

"(B) Single Package' Systems: 6.6 for products manufactured on or after January 1, 1993.

"(3)(A) The Secretary shall publish a final rule no later than January 1, 1994, to

determine whether the standards established under paragraph (1) should be amended. Such rule shall contain such amendment, if any, and provide that the amendment shall apply to products manufactured on or after January 1, 1999. The Secretary shall publish a final rule no later than January 1, 1994, to determine whether

the standards established under paragraph (2) shall be amended. Such rule shall

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

products manufactured on or after January 1, 2002.

"(B) The Secretary shall publish a final rule after January 1, 1994, and no later

than January 1, 2001, to determine whether the standards in effect for central air

conditioners and central air conditioning heat pumps should be amended. Such rule

shall provide that any amendment shall apply to products manufactured on or after

January 1, 2006. "(e) STANDARDS FOR WATER HEATERS; POOL HEATERS; DIRECT HEATING EQUIPMENT.-(1) The energy factor of water heaters shall be not less than the following

for products manufactured on or after January 1, 1990:

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

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

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

Gallons)

"(2) The thermal efficiency of pool heaters manufactured on or after January 1,

1990, shall not be less than 78 percent.

"(3) The efficiencies of gas direct heating equipment manufactured on or after

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

"Wall

Fan type

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

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

Gravity type 59% AFUE

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

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

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

Over 15,000 Btu/hour up to 19,000 Btu/hour .......................... 62% AFUE

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

Over 27,000 Btu/hour up to 46,000 Btu/hour.... - .... I ........... 64% AFUE

Over 46,000 Btu/hour ................................................................... 65% AFUE

Ratio

8.0

8.5

9.0

8.8

8.2

"Floor

"Room

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

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

Up to 18,000 Btu/hour.................................................................. 57% AFUE

Over 18,000 Btu/hour up to 20,000 Btu /hour .......................... 58% AFUE

Over 20,000 Btu/hour up to 27,000 Btu/hour .......................... 63% AFUE

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

Over 46,000 Btu/hour . .................................................................. 65% AFUE

"(4)(A) The Secretary shall publish final rules no later than January 1, 1992, to

determine whether the standards established by paragraph (1), (2), or (3) for water

heaters, pool heaters, and direct heating equipment should be amended. Such rule

shall provide that any amendment shall apply to products manufactured on or after

January 1, 1995.

"(B) The Secretary shall publish a final rule no later than January 1, 2000, to

determine whether standards in effect for such products should be amended. Such

rule shall provide that any such amendment shall apply to products manufactured

on or after January 1, 2005.

 EE-RM-PET-100 COMMENT 97
8

"(f) STANDARDS FOR FURNACES.-(1) Furnaces (other than furnaces designed solely

for installation in mobile homes) manufactured on or after January 1, 1992, shall

have an annual fuel utilization efficiency of not less than 78 percent, except that-

"(A) boilers (other than gas steam boilers) shall have an annual fuel utilization efficiency of not less than 80 percent and gas steam boilers shall have an

annual fuel utilization efficiency of not less than 75 percent; and

"(B) the Secretary shall prescribe a final rule not later than January 1, 1989,

establishing an energy conservation standardAi) which is for furnaces (other than furnaces designed solely for installa.

tion in mobile homes) having an input of less than 45,000 Btu per hour and

manufactured on or after January 1, 1992;

"(ii) which provides that the annual fuel utilization efficiency of such furnaces shall be a specific percent which is not less than 71 percent and not

more than 78 percent; and

"(iii) which the Secretary determines is not likely to result in a significant shift from gas heating to electric resistance heating with respect to

either residential construction or furnace replacement.

"(2) Furnaces which are designed solely for installation in mobile homes and

which are manufactured on or after September 1, 1990, shall have an annual fuel

utilization efficiency of not less than 75 percent.

"(3)(A) The Secretary shall publish a final rule no later than January 1. 1992, to

determine whether the standards established by paragraph (2) for mobile home furnaces should be amended. Such rule shall provide that any amendment shall apply

to products manufactured on or after January 1, 1994.

"(B) The Secretary shall publish a final rule no later than January 1, 1994, to

determine whether the standards established by this subsection for furnaces (including mobile home furnaces) should be amended. Such rule shall provide that any

amendment shall apply to products manufactured on or after January 1, 2002.

"(C) After January 1, 1997, and before January 1, 2007, the Secretary shall publish a final rule to determine whether standards in effect for such products should

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

amendment shall apply to products manufactured on or after January 1, 2012.

"(g) STANDARDS FOR DISHWASHERS; CLOTHES WASHERS; CLOTHES DRYERS.-(1) Dishwashers manufactured on or after January 1, 1988, shall be equipped with an option

to dry without heat.

"(2) All rinse cycles of clothes washers shall include an unheated water option,

but may have a heated water rinse option, for products manufactured on or after

January 1, 1988.

"(3) Gas clothes dryers shall not be equipped with a constant burning pilot for

products manufactured on or after January 1, 1988.

"(4)(A) The Secretary shall publish final rules no later than January 1, 1990, to

determine if the standards established under this subsection for products described

in paragraphs (1), (2), and (3) should be amended. Such rules shall provide that any

amendment shall apply to products the manufacture of which is completed on or

after January 1, 1993,

"(B) After January 1, 1990, the Secretary shall publish a final rule no later than

five years after the date of publication of the previous final rule. The Secretary

shall determine in such rule whether to amend the standards in effect for such

products.

"(C) Any such amendment shall apply to products manufactured after a date

which is five years afterAi) the effective date of the previous amendment; or

"(ii) if the previous final rule did not amend the standard, the earliest date by

which a previous amendment could have been in effect;

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

within three years after publication of the final rule establishing such standard.

"(h) STANDARDS FOR KITCHEN RANGES AND OVENS.-(1) Gas kitchen ranges and

ovens having an electrical supply cord shall not be equipped with a constant burning pilot for products manufactured on or after January 1, 1990.

"(2)(A) The Secretary shall publish a final rule no later than January 1, 1992, to

determine if the standards established for kitchen ranges and ovens in this subsection should be amended. Such rule shall contain such amendment, if any, and provide that the amendment shall apply to products manufactured on or after January

1, 1995.

AB) The Secretary shall publish a final rule no later than January 1, 1997, to

determine whether standards in effect for such products should be amended. Such

rule shall apply to products manufactured on or after January 1, 2000.

9

"(i) STANDARDS FOR OTHER COVERED PRODUCTS.-(I) The Secretary may prescribe

an energy conservation standard for any type (or class) of covered products of a type

specified in paragraph (13) of section 322(a) if the requirements of subsections (1) and

(m) are met and the Secretary determines that-

"(A) the average per household energy use within the United States by products of such type (or class) exceeded 150 kilowatt-hours (or its Btu equivalent)

for any 12-month period ending before such determination;

"(B) the aggregate household energy use within the United States by products

of such type (or class) exceeded 4,200,000,000 kilowatt-hours (or its Btu equivalent) for any such 12-month period;

"(C) substantial improvement in the energy efficiency of products of such type

(or class) is technologically feasible; and

"(D) the application of a labeling rule under section 324 to such type (or class)

is not likely to be sufficient to induce manufacturers to produce, and consumers

and other persons to purchase, covered products of such type (or class) which

achieve the maximum energy efficiency which is technologically feasible and

economically justified.

"(2) Any new or amended standard for covered products of a type specified in

paragraph (13) of section 322(a) shall not apply to products manufactured within

five years after the publication of a final rule establishing such standard.

"(3) The Secretary may, in accordance with subsections (1) and (m), prescribe an

energy conservation standard for television sets. Any such standard may not become

effective with respect to products manufactured before January 1, 1992.

"(j) FURTHER RULEMAxING.-After issuance of the last final rules required under

subsections (b) through (h) of this section, the Secretary may publish final rules to

determine whether standards for a covered product should be amended. An amendment prescribed under this subsection shall apply to products manufactured after a

date which is five years after-

"(1) the effective date of the previous amendment made pursuant to this part;

or

"(2) if the previous final rule published under this part did not amend the

standard, the earliest date by which a previous amendment could have been in

effect,

except that in no case may an amended standard apply to products manufactured

within three years (in the case of refrigerators, refrigerator-freezers, and freezers,

room airconditioners, dishwashers, clothes washers, clothes dryers, and kitchen

ranges and ovens) or five years (in the case of central air-conditioners and heat

pumps, water heaters, pool heaters, direct heating equipment, and furnaces) after

publication of the final rule establishing a standard.

"(k) PETITION FOR AN AMENDED STANDARD.-(1) With respect to each covered product described in paragraphs (1) through (11) of section 322(a), any person may petition the Secretary to conduct a rulemaking to determine for any such covered product if the standards contained either in the last final rule required for such product

under subsections (b) through (h), as the case may be, of this section or in a final

rule published for such product under subsection (j) or this subsection should be

amended.

"(2XA) The Secretary shall grant a petition if he finds that it contains evidence

which, assuming no other evidence were considered, provides an adequate basis for

amending the standards under the following criteria-

"(i) amended standards will result in significant conservation of energy;

"(ii) amended standards are technologically feasible; and

"(iii) amended standards are cost effective as described in subsection

(1)(2)(B)(iXII).

"(B) The grant of a petition by the Secretary under this subsection creates no presumption with respect to the Secretary's determination of any of the criteria in a

rulemaking under this section.

"(3) An amendment prescribed under this subsection shall apply to products manufactured after a date which is five years after-

"(A) the effective date of the previous amendment pursuant to this part; or

"(B) if the previous final rule published under this part did not amend the

standard, the earliest date by which a previous amendment could have been in

effect;

except that in no case may an amended standard apply to products manufactured

within three years (in the case of refrigerators, refrigerator-freezers, and freezers,

room air-conditioners, dishwashers, clothes washers, clothes dryers, and kitchen

ranges and ovens) or five years (in the case of central air-conditioners and heat

 EE-RM-PET-100 COMMENT 97
10

pumps, water heaters, pool heaters, direct heating equipment, and furnaces) after

publication of the final rule establishing a standard.".

"(1) CRITERIA FOR PRESCRIBING NEW OR AMENDED STANDARDS.-(1) The Secretary

may not prescribe any amended standard which increases the maximum allowable

energy use, or decreases the minimum required energy efficiency, of a covered product.

"(2)(A) Any new or amended energy conservation standard prescribed by the See.

retary under this section for any type (or class) of covered product shall be designed

to achieve the maximum improvement in energy efficiency which the Secretary de.

termines is technologically feasible and economically justified.

"(B)(i) In determining whether a standard is economically justified, the Secretary

shall, after receiving views and comments furnished with respect to the proposed

standard, determine whether the benefits of the standard exceed its burdens by, to

the greatest extent practicable, considering-

"(I) the economic impact of the standard on the manufacturers and on the

consumers of the products subject to such standard;

"(II) the savings in operating costs throughout the estimated average life of

the covered product in the type (or class) compared to any increase in the price

of, or in the initial charges for, or maintenance expenses of, the covered products which are likely to result from the imposition of the standard;

"(III) the total projected amount of energy savings likely to result directly

from the imposition of the standard;

"(IV) any lessening of the utility or the performance of the covered products

likely to result from the imposition of the standard;

"(V) the impact of any lessening of competition, as determined in writing by

the Attorney General, that is likely to result from the imposition of the standard;

"(VI) the need for national energy conservation; and

"(VII) other factors the Secretary considers relevant.

"(ii) For purposes of clause (i)(V), the Attorney General shall make a determina.

tion of the impact, if any, of any lessening of competition likely to result from such

standard and shall transmit such determination, not later than 60 days after the

publication of a proposed rule prescribing or amending an energy conservation

standard, in writing to the Secretary, together with an analysis of the nature and

extent of such impact. Any such determination and analysis shall be published by

the Secretary in the Federal Register.

"(iii) If the Secretary finds that the additional cost to the consumer of purchasing

a product complying with an energy conservation standard level will be less than

three times the value of the energy savings during the first year that the consumer

will receive as a result of the standard, as calculated under the applicable test procedure, there shall be a rebuttable presumption that such standard level is economically justified. A determination by the Secretary that such criterion is not met shall

not be taken into consideration in the Secretary's determination of whether a standard is economically justified.

"(3) The Secretary may not prescribe an amended or new standard under this section for a type (or class) of covered product if-

"(A) for products other than dishwashers, clothes washers, clothes dryers, and

kitchen ranges and ovens, a test procedure has not been prescribed pursuant to

section 323 with respect to that type (or class) of product; or

"(B) the Secretary determines, by rule, that the establishment of such standard will not result in significant conservation of energy or that the establishment of such standard is not technologically feasible or economically justified.

For purposes of section 327, a determination under subparagraph (B) with respect to

any type (or class) of covered products shall have the same effect as would a standard prescribed for such type (or class).

"(4) The Secretary may not prescribe an amended or new standard under this section if the Secretary finds (and publishes such finding) that interested persons have

established by a preponderance of the evidence that the standard is likely to result

in the unavailability in the United States in any covered product type (or class) of

performance characteristics (including reliability), features, sizes, capacities, and

volumes that are substantially the same as those generally available in the United

States at the time of the Secretary's finding. The failure of some types (or classes) to

meet this criterion shall not affect the Secretary's determination of whether to prescribe a standard for other types (or classes).

"(m) PROCEDURE FOR PRESCRIBING NEW OR AMENDED STANDARDS.-Any new or

amended energy conservation standard shall be prescribed in accordance with the

following procedure:

11

"(1) The Secretary-

"(A) shall publish an advance notice of proposed rulemaking which specifies the type (or class) of covered products to which the rule may apply;

"(B) shall invite interested persons to submit, within 60 days after the

date of publication of such advance notice, written presentations of data,

views, and arguments in response to such notice; and

"(C) may identify proposed or amended standards that may be prescribed.

"(2) A proposed rule which prescribes an amended or new energy conservation standard or prescribes no amendment or no new standard for a type (or

class) of covered products shall be published in the Federal Register. In prescribing any such proposed rule with respect to a standard, the Secretary shall

determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for each type (or class) of covered products. If such standard is not designed to achieve such efficiency or use,

the Secretary shall state in the proposed rule the reasons therefor.

"(3) After the publication of such proposed rulemaking, the Secretary shall, in

accordance with section 336, afford interested persons an opportunity, during a

period of not less than 60 days, to present oral and written comments (including

an opportunity to question those who make such presentations, as provided in

such section) on matters relating to such proposed rule, including-

"(A) whether the standard to be prescribed is economically justified

(taking into account those factors which the Secretary must consider under

subsection (1)(2)) or will result in the effects described in subsection (1)(4);

"(B) whether the standard will achieve the maximum improvement in

energy efficiency which is technologically feasible;

"(C) if the standard will not achieve such improvement, whether the reasons for not achieving such improvement are adequate; and

"(D) whether such rule should prescribe a level of energy use or efficiency

which is higher or lower than that which would otherwise apply in the case

of any group of products within the type (or class) that will be subject to

such standard.

"(4) A final rule prescribing an amended or new energy conservation standard

or prescribing no amended or new standard for a type (or class) of covered products shall be published as soon as is practicable, but not less than 90 days, after

publication of the proposed rule in the Federal Register.

"(n) SPECIAL RULE FOR CERTAIN TYPES OR CLASSES OF PRODUCTS.-(1) A rule prescribing an energy conservation standard for a type (or class) of covered products

shall specify a level of energy use or efficiency higher or lower than that which applies (or would apply) for such type (or class) for any group of covered products

which have the same function or intended use, if the Secretary determines that covered products within such group---

"(A) consume a different kind of energy from that consumed by other covered

products within such type (or class); or

AN have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher

or lower standard from that which applies (or will apply) to other products

within such type (or class).

In making a determination under this paragraph concerning whether a performance-related feature justifies the establishment of a higher or lower standard, the

Secretary shall consider such factors as the utility to the consumer of such a feature, and such other factors as the Secretary deems appropriate.

"(2) Any rule prescribing a higher or lower level of energy use or efficiency under

paragraph (1) shall include an explanation of the basis on which such higher or

lower level was established.

"(0) INCLUSION IN STANDARDS OF TEST PROCEDURES AND OTHER REQUIREMENTS.-

Any new or amended energy conservation standard prescribed under this section

shall include, where applicable, test procedures prescribed in accordance with section 323 and may include any requirement which the Secretary determines is necessary to assure that each covered product to which such standard applies meets the

required minimum level of energy efficiency or maximum quantity of energy use

specified in such standard.

(p) DETERMINATION OF COMPLIANCE WITH STANDARDS.-Compliance with, and performance under, the energy conservation standards (except for design standards authorized by this part) established in, or prescribed under, this section shall be determined using the test procedures and corresponding compliance criteria prescribed

under section 323.

 EE-RM-PET-100 COMMENT 97
12

"(q) SMALL MANUFACTURER EXEMPTION.-(1) Subject to paragraph (2), the Seer,

tart' may, on application of any manufacturer, exempt such manufacturer from

or part of the requirements of any energy conservation standard established in or

prescribed under this section for any period not longer than the 24-month period

beginning on the date such rule becomes effective, if the Secretary finds that the

annual gross revenues of such manufacturer from all its operations (including the

manufacture and sale of covered products) does not exceed $8,000,000 for the 12-

month period preceding the date of the application. In making such finding with

respect to any manufacturer, the Secretary shall take into account the annual gross revenues of any other person who controls, is controlled by, or is under common

control with, such manufacturer.

"(2) The Secretary may not exercise the authority granted under paragraph (1)

with respect to any type (or class) of covered product subject to an energy conserve.

tion standard under this section unless the Secretary makes a finding, after obtain.

ing the written views of the Attorney General, that a failure to allow an exemption

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

SEC. 6. REQUIREMENTS OF MANUFACTURERS.

Section 326(d) of the Energy Policy and Conservation Act (42 U.S.C. 6296(d)) is

amended to read as follows:-

"(d) INFORMATION REQUIREMENTS-0) For purposes of carrying out this part, the

Secretary may require, under this part or other provision of law administered by

the Secretary, each manufacturer of a covered product to submit information or reports to the Secretary with respect to energy efficiency or energy use of such covered product and the economic impact of any proposed energy conservation stand.

ard, as the Secretary determines may be necessary to establish and revise test pro.

cedures, labeling rules, and energy conservation standards for such product and to

insure compliance with the requirements of this part. In making any determination

under this paragraph, the Secretary shall consider existing public sources of information, including nationally recognized certification programs of trade associations.

"(2) The Secretary shall exercise authority under this section in a manner designed to minimize unnecessary burdens on manufacturers of covered products.

(3) The provisions of section 11(d) of the Energy Supply and Environmental Coordination Act of 1974 shall apply with respect to information obtained under this

subsection to the same extent and in the same manner as they apply with respect to

energy information obtained under section 11 of such Act."

SEC. 7. EFFECT ON OTHER LAW.

Section 327 of the Energy Policy and Conservation Act (42 U.S.C. 6297) is amended to read as follows:

"EFFECT ON OTHER LAW

"SEC. 327. (a) PREEMPTION OF TESTING AND LABELING REQUIREMENTS.-(1) Effective

on the date of enactment of the National Appliance Energy Conservation Act of

1987, this part supersedes any State regulation insofar as such State regulation provides at any time for the disclosure of information with respect to any measure of

energy consumption of any covered product if-

(A) such State regulation requires testing or the use of any measure of

energy consumption or energy descriptor in any manner other than that provided under section 323; or

"(B) such State regulation requires disclosure of information with respect to

the energy use or energy efficiency of any covered product other than information required under section 324.

"(2) For purposes of this section, the term 'State regulation' means a law, regulation, or other requirement of a State or its political subdivisions.

"(b) GENERAL RULE OF PREEMPTION FOR ENERGY CONSERVATION STANDARDS BEFORE

FEDERAL STANDARD BECOMES EFFECTIVE FOR A PRODUCT.-Effective on the date of enactment of the National Appliance Energy Conservation Act of 1987 and ending on

the effective date of an energy conservation standard established under section 325

for any covered product, no State regulation, or revision thereof, concerning the

energy efficiency or energy use of the covered product shall be effective with respect

to such covered product, unless the State regulation or revision-

"(1) was prescribed or enacted before January 8, 1987, and is applicable to

products before January 3, 1988;

"(2) is a State procurement regulation described in subsection (e);

"(3) is a regulation described in subsection (f)(l) or is prescribed or enacted in

a building code for new construction described in subsection (f)(2);

13

")4) is a rem lation prohibiting the use in pool heaters of a constant burning

pilot; 1(5) is a regulation described in subsection (d)(5)(B) for which a waiver has

been granted under subsection (d); or

"(6) is a regulation effective on or after January 1, 1992, concerning the

energy efficiency or energy use of television sets.

"(c) GENERAL RULE OF PREEMPTION FOR ENERGY CONSERVATION STANDARDS WHEN

FEDERAL STANDARD BECOMES EFFECTIVE FOR A PRODUCT.-Except as provided in section 325(b)(3XAXii) and effective on the effective date of an energy conservation

standard established in or prescribed under section 325 for any covered product, no

State regulation concerning the energy efficiency or energy use of such covered

produc"t shall be effective with is a regulation described in paragraph (2) or (4) of subsection a(tb)n-

"(2) is a regulation which has been granted a waiver under subsection (d); or

"(3) is in a building code for new construction described in subsection (f)(3).

which provides requirement with re- „( WAIVER for any energy conservation s andard oraothert

spect to energy use or energy efficiency for any type (or class) of covered product for

which there is a Federal energy conservation standard under section 325 may file a

petition with the Secretary requesting a rule that such State regulation become of

fective with respect to such covered product.

I3) Subject to paragraphs (2) through (5), the Secretary shall, within the period

described in paragraph (2) and after consideration of the petition and the comments

of interested persons, prescribe such rule if the Secretary finds (and publishes such

finding) that the State has established by a preponderance of the evidence that such

State regulation is needed to meet unusual and compelling State or local energy interests. "(C) For purposes of this subsection, the term 'unusual and compelling State or

local energy interests' means interests which-

"(i) are substantially different in nature or magnitude than those prevailing

'in the United States generally; and

"(ii) are such that the costs, benefits, burdens, and reliability of energy savings resulting from the State regulation make such regulation preferable or

necessary when measured against the costs, benefits, burdens, and reliability of

alternative approaches to energy savings or production, including reliance on

reasonably predictable market-induced improvements in efficiency of all products subject to the State regulation.

The factors described in clause (n) shall be evaluated within the context of the

State's energy plan and forecast.

"(2) The Secretary shall give notice of any petition filed under paragraph (1)(A)

and afford interested persons a reasonable opportunity to make written comments,

including rebuttal comments, thereon. The Secretary shall, within the 6-month

period beginning on the date on which any such petition is filed, deny such petition

or prescribe the requested rule, except that the Secretary may publish a notice in

the Federal Register extending such period to a date certain but no longer than one

year after the date on which the petition was filed. Such notice shall include the

reasons for delay. In the case of any denial of a petition under this subsection, the

i Secretary shall publish in the Federal Register notice of, and the reasons for, such

denial.

"(3) The Secretary may not prescribe a rule under this subsection if the Secretary

finds (and publishes such finding) that interested persons have established, by a preponderance of the evidence, that such State regulation will significantly burden

manufacturing, marketing, distribution, sale, or servicing of the covered product on

a national basis. In determining whether to make such finding, the Secretary shall

evaluate all relevant factors, including-

"(A) the extent to which the State regulation will increase manufacturing or

distribution costs of manufacturers, distributors, and others;

"(B) the extent to which the State regulation will disadvantage smaller manufacturers, distributors, or dealers or lessen competition in the sale of the covered product in the State;

"(C) the extent to which the State regulation would cause a burden to manufacturers to redesign and produce the covered 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

 EE-RM-PET-100 COMMENT 97
14

"(ii) in the current or projected sales volume of the covered product type

(or class) in the State and the United States; and the extent

cantly to a proliferation of State Sapplia tate

mulative impact such requirements would have. requireme is and the

cu.

"(4) The Secretary may not prescribe a rule under this subsection if the Secretary

finds (and publishes such finding) that interested persons have established, by a preponderance of the evidence, that the State regulation is likely to result in the un availability in the State of any covered product type (

or class acteristics (including reliability), features, ) of performance at' sizes, capacities, and volumes that are substantially the same as those generally available in the State at the time of the

Secretary's finding, except that the failure of some classes (or types) to this

criterion shall not affect the Secretary's determination of whether to prescribe a rule for other classes (or types).

"(5) No final rule prescribed by the Secretary under this subsection may-

"(A) permit any State regulation to become effective with respect to any covered product manufactured within three years after such rule is published in

the Federal Register or within five years if the Secretary finds that such a

tional time is necessary due to the substantial burdens of retooling,

distribution needed to comply with the State regulation; or ddi-

"(B) become effective with respect to a covered redesign, e

the earliest possible effective date specified in section 325tformanactured

merit of the energy conservation standard established in such section for the the initial amend

covered product- except that such rule may become effective before such date if

the Secretary finds (and publishes such finding) that, in addition to the other

requirements of this subsection the State has established, by a preponderance of the evidence, that-

"(f) an energy emergency condition exists within the State which-

"(I) imperils the health, safety, and welfare of its residents because of

the inability of the State or utilities within the State to provide adequate quantities of gas or electric energy to its residents at less than prohibitive costs; and

"(II) cannot be substantially alleviated by the importation of energy

or the use of interconnection agreements; and

dition. "(ii) the State regulation is necessary to alleviate substantially such con-

"(6) In any case in which a State is issued a rule under paragraph (1) with respect

to a covered product and subsequently a Federal energy conservation standard concerning such product is amended pursuant to section 325, any

State regulation may file a petition with the Secretary requesting the Secretary to such

withdraw the rule issued under paragraph (1) with respect osuch product in such

State. The Secretary shall consider such petition in accordance with the requiremerits of paragraphs (1), (3), and (4), except that the burden shall be on the petitioner to show by a preponderance of the evidence that th under paragraph (1) shld b e rul e recid b evey the State eral standard. oue withdrawn as a result of the amendment to the FedIf the Secretary determines that the petitioner has shown that the rule issued by the State should be so withdrawn

,

"(e) EXCEPTION FOR CERTAIN STATE PROCUREMENT STANDARDS the Secretary shall withdraw it.

tion which sets forth procurement standards for a State .-Any State regula- (or political subdivision

thereof)

shall not be superseded by the provisions of this

more stringent than the corresponding Federal energy conservation standards. part if such standards are

(f) EXCEPTION FOR CERTAIN

BUILDING CODE REQUIREMENTS other requirement enacted or prescribed before January 8 .-(1) A regulation or

, 1987, that is contained in a State or local building code for new construction concerning the energy efficiency

or energy use of a covered product is not superseded by this the effective

325

date of

for suc

theh energy

covered product. on standard established in or part prescribed

until th

. under section "(2) A regulation or other requirement

, on or after January 8, 1987, or revision thereof, enacted or prescribed

new constru that is contained in a St ction concih ate or local bildi ung code for ernng te energy efficiency or energy use of a covered

uct is not superseded by this part until the effective date of the energy conservation prodstandard established in or prescribed under section 325 for such covered product if the

the code does not require that the energy efficiency of such covered product

the applicable minimum efficiency requirement in a national voluntary consensus standard; or

15

"(B) the minimum energy efficiency level in a regulation or other requirement of the State meeting the requirements of subsection (b)(1) or (b)(5),

Whichever is higher.

"(3) Effective on the effective date of an energy conservation standard for a covered product established in or prescribed under section 325, a regulation or other

requirement contained in a State or local building code for new construction concerning the energy efficiency or energy use of such covered product is not superseded by this part if the code, complies with all of the following requirements:

"(A) The code permits a builder to meet an energy consumption or conservation objective for a building by selecting items whose combined energy efficiencies meet the objective.

"(B) The code does not require that the covered product have an energy efficiency exceeding the applicable energy conservation standard established in or

prescribed under section 325, except that the required efficiency may exceed

such standard up to the level required by a regulation of that State for which

the Secretary has issued a rule granting a waiver under subsection (d).

"(C) The credit to the energy consumption or conservation objective allowed

by the code for installing covered products having energy efficiencies exceeding

such energy conservation standard established in or prescribed under section

325 or the efficiency level required in a State regulation referred to in subparagraph (B) is on a one-for-one equivalent energy use or equivalent cost basis.

"ti)) If the code uses one or more baseline building designs against which all

submitted building designs are to be evaluated and such baseline building designs contain a covered product subject to an energy conservation standard established in or prescribed under section 325, the baseline building designs are

based on the efficiency level for such covered product which meets but does not

exceed such standard or the efficiency level required by a regulation of that

State for which the Secretary has issued a rule granting a waiver under subsection W.

"(E) If the code sets forth one or more optional combinations of items which

meet the energy consumption or conservation objective, for every combination

which includes a covered product the efficiency of which exceeds by more than

5 percent either standard or level referred to in subparagraph (D), there also

shall be at least one combination which includes such covered product the efficiency of which does not exceed such standard or level by more than 5 percent,

except that at least one combination shall include such covered product the efficiency of which meets but does not exceed such standard.

"(F) The energy consumption or conservation objective is specified in terms of

an estimated total consumption of energy (which may be calculated from energy

loss- or gain-based codes) utilizing an equivalent amount of energy (which may

be specified in units of energy or its equivalent cost).

"(C) The estimated energy use of any covered product permitted or required

in the code, or used in calculating the objective, is determined using the applicable test procedures prescribed under section 323, except that the State may

permit the estimated energy use calculation to be adjusted to reflect the conditions of the areas where the code is being applied if such adjustment is based on

the use of the applicable test procedures prescribed under section 323 or other

technically accurate documented procedure.

"(4)(A) Subject to subparagraph (B), a State or local government is not required to

submit a petition to the Secretary in order to enforce or apply its building code or to

establish that the code meets the conditions set forth in this subsection.

"(B) If a building code requires the installation of covered products with efficiencies exceeding both the applicable Federal standard established in or prescribed

under section 325 and the applicable standard of such State, if any, that has been

granted a waiver under subsection (d), such requirement of the building code shall

not be applicable unless the Secretary has granted a waiver for such requirement

under subsection (d).

"(g) No WARRANTY.-Any disclosure with respect to energy use, energy efficiency,

or estimated annual operating cost which is required to be made under the provisions of this part shall not create an express or implied warranty under State or

Federal law that such energy efficiency will be achieved or that such energy use or

estimated annual operating cost will not be exceeded under conditions of actual

use.".

SEC. 8. CITIZEN SUITS.

Section 335(a) of the Energy Policy and Conservation Act (42 U.S.C. 6305) is

amended-

 EE-RM-PET-100 COMMENT 97
16

(1) by striking out "or" at the end of paragraph (1);

(2) by striking out the period at the end of paragraph (2) and inserting in lieu

thereof'"; or';

(3) by inserting after paragraph (2) the following new paragraph:

sec- retary to ecomplyawith

in any case in which

a nondiscretionary duty eto

is anissue alleged

a proposed

failure

or ofinal rule according to the schedules set forth in section 325."; and

(4) by adding after the last sentence the following:

"The courts shall advance on the docket, and expedite the disposition of, all causes

filed therein pursuant to paragraph (3) of this subsection. If the court finds that the

Secretary has failed to comply with a deadline established in section 325, the court

shall have jurisdiction to order appropriate relief, including relief that will ensure

the Secretary's compliance with future deadlines for the same covered product.".

SEC. 9. ADMINISTRATIVE REVIEW AND JUDICIAL REVIEW.

Section 336 of the Energy Policy and Conservation Act (42 U.S.C. 6306) is amend.

ed to read as follows:

"ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW

"SEC. 336. (a)(1) In addition to the requirements of section 553 of title 5, United

States Code, rules prescribed under section 323, 324, 325, 327, or 328 of this part

shall afford interested persons an opportunity to present written and oral data,

views, and arguments with respect. to any proposed rule.

"(2) In the case of a rule prescribed under section 325, the Secretary shall, by

means of conferences or other informal procedures, afford any interested person an

opportunity to question-

"(A) other interested persons who have made oral presentations; and

"(B) employees of the United States who have made written or oral presentations with respect to disputed issues of material fact.

Such opportunity shall be afforded to the extent the Secretary determines that questioning pursuant to such procedures is likely to result in a more timely and effective

resolution of such issues.

"(3) A transcript shall be kept of any oral presentations made under this subsection. 11

(b)(1) Any person who will be adversely affected by a rule prescribed under section 323, 324, or 325 may, at any time within 60 days after the data on which such

rule is prescribed, file a petition with the United States court of appeals for the circuit in which such person resides or has his principal place of business, for judicial

review of such rule. A copy of the petition shall be transmitted by the clerk of the

court to the agency which prescribed the rule. Such agency shall file in the court

the written submissions to, and transcript of, the proceedings on which the rule was

based, as provided in section 2112 of title 28, United States Code.

"(2) Upon the filing of the petition referred to in paragraph (1), the court shall

have jurisdiction to review the rule in accordance with chapter 7 of title 5, United

States Code, and to grant appropriate relief as provided in such chapter. No rule

under section 323, 324, or 325 may be affirmed unless supported by substantial evidence.

"(3) The judgment of the court affirming or setting aside, in whole or in part, any

such rule shall be final, subject to review by the Supreme Court of the United

States upon certiorari or certification as provided in section 1254 of title 28, United

States Code.

"(4) The remedies provided for in this subsection shall be in addition to, and not

in substitution for, any other remedies provided by law.

"(5) The procedures applicable under this part shall not-

"(A) be considered to be modified or affected by any other provision of law

unless such other provision specifically amends this part (or provisions of law

cited herein); or

"(B) be considered to be superseded by any other provision of law unless such

other provision does so in specific terms by referring to this part and declaring

that such provision supersedes, in whole or in part, the procedures of this part.

"(c) Jurisdiction is vested in the Federal district courts of the United States over

actions brought by-

"(1) any adversely affected person to determine whether a State or local government is complying with the requirements of this part; and

"(2) any person who files a petition under section 325(k) which is denied by

the Secretary.".

Section 338 of the Energy Policy and Conservation Act (42 U.S.C. 6308) is amend.

d by adding at the end the following: "Nothing in this section provides a defense or

e

tification

ovided ffrrin a failure

t it party the Secretary to comply with a nondiscretionary duty

SEC, 11. CONFORMING AMENDMENTS.

(a) IN GENERAL.-Part B of title III of the Energy Policy and Conservation Act is

amended as follows:

(1) Section 324 is amended-

(A) in subsection (a)(1), by striking out "paragraphs (1) through (9)" and

inserting in lieu thereof "paragraphs (1), (2), (4), (6), and (8) through (12)";

(B) in subsection (a)(2), by striking out "paragraphs (10) through (13)" and

inserting in lieu thereof "paragraphs (3), (5), and (7) " ; and

(C) in subsection (a)(3)-

(i) by striking out "paragraph (14)" and inserting in lieu thereof

"paragraph (13)";

(ii) by striking out subparagraph (A) and inserting in lieu thereof the

following:

"(A) the Commission or the Secretary has made a determination with respect

to such type (or class thereof) that labeling in accordance with this section will

assist purchasers in making purchasing decisions,"; and

(iii) by striking out "section 323(a)(5)" in subparagraph (B) and inserting in lieu thereof "section 323(b)(1)(B)";

(D) by striking out subsection (b)(1) and inserting in lieu thereof the following:

"(b) RULES IN EFFECT; NEW RuLEs.-(1)(A) Any labeling rule in effect on the date

of the enactment of the National Appliance Energy Conservation Act of 1987 shall

remain in effect until amended, by rule, by the Commission.

"(B) After the date of the enactment of the National Appliance Energy Conservation Act of 1987 and not later than 30 days after the date on which a proposed test

procedure applicable to a covered product of any of the types specified in paragraphs (1) through (13) of section 322(a) (or class thereof) is prescribed under section

323(b), the Commission shall publish a proposed labeling rule applicable to such

type (or class thereof).";

(E) in subsection (bX3)-

(i) by striking out "section 323" both places in which it appears and

inserting in lieu thereof "section 323(b)";

(ii) by striking out "(13)" and inserting in lieu thereof "(12)"; and

(iii) by striking out "(14)" and inserting in Iieu thereof "(13)":

(F) in subsection (b)(5)-

(i) by striking out "(10) through (13)" and inserting in lieu thereof

"(3), (5), and (7)"; and

(ii) by striking out "(14)" and inserting in lieu thereof "(13)"; and

(G) in subsection (f), by striking out "or (2)" in the second sentence.

(2) Section 326(b)(3XA) is amended by inserting "established in or" before

"prescribed under".

(3) Section 332(a)(5) is amended by striking out "energy efficiency standard

prescribed under" and inserting in lieu thereof "energy conservation standard

established in or prescribed under".

(b) STYLISTIC CONFORMING AMENDMENTS.-Part B of title III of the Energy Policy

and Conservation Act is amended as follows:

(1) Section 322(bXl) is amended by striking out "(b)(1)" and inserting in lieu

thereof "(b) SPECIAL CLASSIFICATION OF CONSUMER PRODUCT.-(l)".

(2) Section 324 is amended-

(A) by striking out "SEC. 324. (a)(1)" and inserting in lieu thereof "SEC.

324. (a) IN GENERAL.-(1)";

(B) in subsection (c)(1), by striking out "(cXl)" and inserting in lieu thereOf "(C) CONTENT OF LABEL.-(1)";

(C) in subsection (d), by striking out "(d)" and inserting in lieu thereof

"(d) EFFECTIVE DATE.-";

(D) in subsection (e), by striking out "(e)" and inserting in lieu thereof "(e)

STUDY OF CERTAIN PRODUCTS.-";

(E) in subsection (I), by striking out "(f)" and inserting in lieu thereof "(f)

CONSULTATION.-"; and

(F) in subsection (g), by striking out "(g)" and inserting in lieu thereof "(g)

OTHER AUTHORITY OF THE COMMISSION.-".

 EE-RM-PET-100 COMMENT 97
18

(3) Section 326 is amended-

(A)IN subsection (a), by striking out °(a)" and inserting in lieu thereof

(B) in subsection (b)(1), by striking out "(b)(1)" and inserting in lieu there,

of "(b) NOTIFICATION.-(1)'; and

(C) in subsection (c), by striking out "(c) Each" and inserting in lieu there.

of "(c) DEADLINE.-Each".

(4) Section 329 is amended-

(A) in subsection (a), by striking out "(a)" and inserting in lieu thereof

"(a) IN GENERAL.-"; and 21

(B) in subsection (b), by striking out "(b)" and inserting in lieu thereof

"(b) CONFIDENTIALITY.-".

(5) Section 332 is amended-

(A) in subsection (a), by striking out "SEC. 332. (a)" and inserting in lieu thereof "SEC. 332. (a) IN GENERAL.-"; and

(B) in subsection (b), by striking out "(b)" and inserting in lieu thereof

"(b) DEFINITION.-".

(6) Section 333 is amended-

(A) in subsection (a), by striking out "SEC. 333. (a)" and inserting in lieu

thereof "SEC. 333. (a) IN GENERAL-";

(B) in subsection (b), by striking out "(b)" and inserting in lieu thereof

"(b) DEFINITION.-";

(C) in subsection (c), by striking out "(c) It" and inserting in lieu thereof

"(c) SPECIAL RULE.-It"; and

(D) in subsection (d)(1), by striking out "(d)(1)" and inserting in lieu thereof "(d) PROCEDURE FOR ASSESSING PENALTY.-(1)".

(7) Section 335 is amended-

(A) in subsection (b), by striking out "(b)" and inserting in lieu thereof

"(b) LIMITATION.-";

(B) in subsection (c), by striking out "(c)" and inserting in lieu thereof "(c)

RIGHT TO INTERVENE.-";

(C) in subsection (d), by striking out "(d)" and inserting in lieu thereof

"(d) AWARD OF COSTS OF LITIGATION.-";

(D) in subsection (e), by striking out "(e)" and inserting in lieu thereof "(e)

PRESERVATION OF OTHER RELIEF.-"; and

(E) in subsection (f), by striking out "(f)" and inserting in lieu thereof "(f)

COMPLIANCE IN GOOD FAITH.-".

(8) Section 339 is amended-

(A) in subsection (a), by striking out "(a)" and inserting in lieu thereof

"(a) AUTHORIZATIONS FOR THE SECRETARY.-";

(B) in subsection (b), by striking out "co)' and inserting in lieu thereof

"(b) AL'THORSZATIONS FOR THE CoMaIissoN.-"; and

(C) in subsection (c), by striking out "(c)" and inserting in lieu thereof "(c)

OTHER AUTHORIZATIONS.-".

PURPOSE AND SSUMMARY

Residential buildings account for 16.5 Quads of energy consumption in the United States, or 23% of the national total. Of that

figure, approximately 80% is attributable to major home appliances, including central systems (central air conditioning units,

furnaces, etc.) and individual units (refrigerators, freezers, washers

and dryers, room air conditioners, etc.). The central tenet of this or

any appliance standards bill is simple: the more efficient the appliance, the less energy is consumed.

Appliance efficiency standards are design requirements or minimum efficiency requirements for appliances. Unlike energy efficiency ratings, which are informational only, appliance efficiency

standards establish actual baseline, minimum requirements for

each covered product. The result is that the least energy efficient

products are eliminated, resulting in greater average efficiency, decreased energy consumption by ratepayers, and decreased demand

requirements on utilities.

19

There are two central tenets to the National Appliance Energy

Conservation Act of 1987 , H.R. 87. First, the bill legislates express

energy conservation standards for eleven consumer products : (1) refrigerators and freezers; (2) room air conditioners; (3) central air

conditioners and heat pumps; (4) water heaters; (5) furnaces; (6)

dishwashers; (7) clothes washers; (8) clothes dryers; (9) direct heating equipment; (10) kitchen ranges and ovens; and (11) pool heaters.

DOE is responsible for amending the standards in the future.

S

econd, the bill preempts state law under most circumstances.

DISCUSSION OF KEY PROVISIONS

Section 4. Test Procedures

New Section 323(e)

is intended to eliminate the impact that a

change in test procedure might otherwise have on existing standard levels. The standard levels established in Section 5 of the Act

are based on current test procedures. The Secretary has authority

to amend test procedures at any time . If test procedures are

changed, however, the measured efficiency or measured energy

consumption of covered products is also likely to change . For example, a group of appliances that would consume the identical

amount of energy under the use assumptions contained in the existing test procedure might consume different amounts of energy

under new use assumptions contained in an amended test procedure. One purpose of new section 323(e )

is to require that all

models that comply with the standard under the old test procedure

be deemed to comply with the standard under an amended test procedure, even if the measured energy consumption of such models is

changed as a result of the new test procedure.

New Section 323(e)

is also intended to eliminate any other

impact that a revised test procedure might have on the energy conservation standard, An amended test procedure might alter the

measured energy consumption of different models in various ways.

For example ,

five models that are all measured to consume 10

units of energy under the existing test procedure might (in an extreme case)

be measured to consume 4, 5, 6, 8, and 12 units of

energy under the amended test procedure . The purpose of new section 323(e) is to require DOE to establish an amended standard

that accounts for the measured change in energy consumption

under the new test procedure . The new standard would be established by computing the average energy consumption (or efficiency)

under the amended test procedure of a representative sample of

units that barely complied with the standard as measured under

the old test procedure. Thus, assusming that the existing standard

in the prior example was 10 units, the new standard would be the

average energy consumption under the new test procedure of a representative sample of units that consume 10 units of energy-in

this case, 7 units [(4+5+6+8+12)/5=7].

Section 323(

e) also makes clear that the Secretary's authority to

amend test procedures does not affect the Secretary's duty to issue

final rules regarding energy conservation standards under Section

325.

 EE-RM-PET-100 COMMENT 97
20

Section. 5. Energy Cors_rration Standards

Overview. -Section 5 of the Act amends current Section 325 of

EPCA by setting explicit standard level for most of the major

energy-consuming appliances. The Secretary is required to engage

in at least two future rulemakings at specified dates to determine

whether to revise the standards. In such future rulemakings, the

Secretary may either increase the rigor of the standard , or allow it

to remain at its current level; he may not decrease the standard.

This section requires that DOE standards for covered products

remain effective for a specified duration ("lock-in" periods) during

which manufacturers can obtain returns on their capital investments before being required to make further investments and

other expenditures in order to meet more stringent requirements.

Furthermore, the schedule gives industry a three- or five-year

"lead-in" period, depending upon the product, between the announcement of a new standard level (issuance of final rule) and its

effective date in order to make whatever product changes revised

standards require.

The energy conservation standards specified in the Act apply to

the principal function of an appliance, such as heating, cooling or water heating. Some appliances perform more than one function,

such as furnaces, air conditioners or heat pumps that also heat potable water, and water heaters that also provide space heating.

These appliances are sometimes referred to as combination appliances. Furnaces, air conditioners or heat pumps that also heat potable water must comply with the appropriate furnace or air conditioning standard and not with the water heater standard. Water

heaters that also provide space heating must comply with the

water heater standard and not with the furnace standard. The

reason for this is that DOE test procedures are based on the average use cycle for the principle function of the appliance and do not

specify a use cycle that would occur if that appliance were also performing another function.

if DOE establishes test procedures for both functions of combination appliances, energy conservation standards for both functions

of such appliances may be established.

Special Rule for Refrigerators, Refrigerator/Freezers, and Freezers Standards.-New Section 325(b) of EPCA contains the initial standards and future rulemaking schedules for refrigerators, refrigera- tor-freezers, and freezers ("refrigerator/freezers "). The initial

standard levels applicable to these products manufactured on or

after January 1 , 1990 are stronger than the most stringent existing

State standards for these products, which are the standards promulgated by the California Energy Commission ("CEC") in 1984 to

take effect in 1987. The initial Federal standards for these products

are not as stringent as California standards, also enacted in 1984,

that would be effective in 1992 in California, although the bill

provides that these State standards may become effective in 1993

in California under certain circumstances.

Whether the rulemaking schedule provided in this subsection is

met will determine the status of the 1992 CEC standards and other

future State standards for refrigerator/freezers . The special provi- sions relating to the CEC 1992 standards for refrigerator /freezers

21

are justified because they are the only State standards substantially more stringent that those in the Act that have been promulgated at this time. The California 1992 standards for refrigerator/

freezers will not take effect in California if the Secretary, as required, timely publishes a final rule which determines whether to

amend the initial Federal standards. Under such circumstances,

California may still petition DOE for a waiver from preemption.

Although DOE'

s duty to publish rules by specified deadlines is nondiscretionary, DOE'

s failure to meet such deadlines with respect to

refrigerator /

freezers would allow other States to implement refrigthen Secretary

supersession

idetermnes

need

whether to t waver ep process until

without

the

he Proc

revise the Federal standards.

The Secretary must publish a proposed rule by July 1, 1988, to

determine if the Federal refrigerator/ freezer standards should be

amended. A final rule must be published no later than July 1,

1989. If the Secretary determines to amend the standards, those revisions shall apply to products manufactured on or after January 1,

1993. However, if the final rule is not published by January 1,

1990, any revisions to the standards shall not apply to products

manufactured before January 1 , 1995, and there must be at least a

three-year lead time between issuance of the final rule and the effective date of the amendments.

If the Secretary does not publish a final rule by July 1, 1989,

then adversely affected parties may seek judicial relief through the

provisions of new Section 335(a)(3) (Section 8 of the Act). This provision would allow manufacturers to sue to compel DOE to issue a

final rule before January 1, 1990. If DOE does not publish a final

rule by January 1, 1990, then the 1992 CEC standards (and any

amendments to these standards which are not more stringent than

the original regulations) would apply in California effective January 1, 1993. Thereafter, such standards would not preempted by

subsequent Federal rules.

If the Secretary does not publish a final relating to the revision

of the refrigerator/

freezer standards by January 1, 1992, then any

State requirements which might apply to such products manufactured on or after January 1, 1995, are not superseded until the effective date of a subsequent rule issued by DOE, unless DOE grants

a waiver from preemption.

Further Rulemaking.-New EPCA section 325(j) sets forth the

timetable for further rulemaking on covered products. For each

covered product, two subsequent rulemakings are mandated, at

specified times, in which the Secretary must determine whether

the extent standard for such product should be amended. Thereafter, rulemakings to determine whether to amend a standard are

discretionary . Such subsequent rulemakings may be initiated

either by the Secretary of his own accord, or pursuant to a petition

(new section 325(k)). The Secretary is required to grant a petition

to initiate a rulemaking where the petition contains evidence

which, assuming no other evidence were considered , provides an

adequate basis for amending the standards under the following criteria: (1) amended standards would result in significant conservation of energy; (2) amended standards are technologically feasible;

 EE-RM-PET-100 COMMENT 97
22

and (3) amended standards are cost effective. A petitioner ma

appeal the denial of a petition in Federal District Court. y

The intention of these amendments is to eliminate DOE's duty to

conduct rulemakings pursuant to a rigid schedule. dictated 15 or

more years in advance. It is not intended to create any presume.

tion that the need for revised standards will be diminished in the

future. The Committee expects DOE to evaluate on a continuing

basis whether further revisions in the standards are justified.

Criteria for New or Amended Standards.-Section 5 of the Act

(new EPCA section 325(1)) also provides the criteria for prescribing

new or amended Federal standards. The basic criterion for pre..

scribing the standards is the same as that in current EPCA, i.e.,

that any energy conservation standard shall be designed to achieve

the maximum improvement in energy efficiency that is "technologically feasible" and "economically justified." H.R. 87 incorporates these requirements of existing law, and in addition estab.

lishes three additional criteria or factors to be considered by DOE

in prescribing new standards or in reviewing standards for possible

revision. These new provisions are:

1. New Section 325(1)(1).-DOE may not prescribe an amended

standard that increases maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. The purpose of this requirement is to prevent the Secretary

from weakening any energy conservation standard for a product,

whether established in this Act or subsequently adopted. This

serves to maintain a climate of relative stability with respect to

future planning by all interested parties. The Secretary may find

in a particular case that no revision of a standard is required.

2. New Section 325(1)(B)(iii).-If the Secretary finds that the additional cost to the consumer of purchasing a product complying with

an energy conservation standard would be less than three times

the value of the energy savings that the consumer will receive as a

result of the standard during the first year, a rebuttable presumption is created that the standard is economically justified. In other

words, standard levels with a simple payback period of three years

or less are entitled to a presumption of economic justification. The

fact that this payback level cannot be achieved by a standard level

shall not be considered in the Secretary's determination whether a

standard level is economically justified. In other words, the Secretary shall not presume that a standard level is not economically

justified just because the simple payback period exceeds three

years. Instead, the Secretary shall analyze savings in operating

costs as required by Section 325(l)(2)(B)(i)(II).

3. New Section 325(1)(4).-In addition to the technical feasibility

and economic justification criteria, this new section ensures that

energy savings are not achieved through the loss of significant consumer features. The provision states that even if a standard is

"technologically feasible" and "economically justified," the Secretary may not prescribe an amended or new standard if he finds

that interested persons have established by a preponderance of the

evidence that the standard is likely to result in the "unavailability

in a covered product type (or class) of performance characteristics

(including reliability), features, sizes, capacities, and volumes that

are substantially the same as those generally available in the

23

United States at the time of the Secretary's finding." This term

precludes DOE from promulgating a standard that manufacturers

are only able to meet by adopting engineering changes that eliminate performance characteristics. A manufacturer's decision to

eliminate such characteristics rather than to implement other

technologically feasible changes does not render the product type

,,unavailable." A standard would result in the "unavailability" of

characteristics, etc., if, as a result of the standard , a product containing such characteristic would become prohibitively expensive,

i.e. if there would be minimal demand for the product having such

characteristic. Nor does the inability of a particular manufacturer

to meet a standard necessarily make the product type "unavailable." The purpose of this provision is to ensure that an amended

standard does not deprive consumers of product choices and characteristics, features, sizes, etc. Significant achievements in energy

conservation can be made without sacrificing the utility or covenience of applicances to cosumers. A valid standard may entail some

minor loss of characteristics, features, sizes, etc.; for this reason,

the Act requires that "substantially the same," though not necessarily identical, characteristics or features should continue to be

available. This provision also does not apply to trivial effects in

which a standard might result. If a standard level for a given product type or class fails to meet the statutory criterion , the Secretary

should determine the most stringent standard level that would satisfy the criterion for that product type or class and adopt a standard for it that meets the statutory criteria. In addition, the Secretary may make adjustments to the standard levels for certain product types or classes to meet this requirement (e.g., setting a lower

standard level for certain types or classes), and the failure of particular product types or classes to meet this requirement shall not

affect the Secretary'

s determination with respect to other product

types or classes.

The burden of producing evidence and proving that a standard

level will result in the unavailability of certain characteristics, etc.,

rests on interested persons asserting the claim of unavailability.

Product types or classes are those defined by the Act or by the

Secretary. Examples of "performance characteristics " of particular

products are: safety; cooling; refrigeration and heating; dehumidification; ability to clean or dry without adverse effects; serviceability; and incidence and cost or repair. Examples of "features" are:

automatic defrost, through the door ice, size of room air conditioners, and noise levels. Assessment of standard sizes ( i.e., the availability of sizes that fit in standard building spaces), capacities and

volumes should be based on a review of products available in the

marketplace.

Section 7. Effect on Other Law

Overview.-Section 7 provides for preemption of certain State

y nd local regulations that address the energy consumption of coyered products. In overall form, the section follows substantially the

preemption requirements in current EPCA. Thus, the section continues the current rules for preemption with respect to certain

State testing and labeling requirements applicable to covered prod-

 EE-RM-PET-100 COMMENT 97
24

ucts that are inconsistent with Federal law. It also continues the

basic concept of preempting State energy efficiency standards and

allowing waivers of preemption under certain circumstances.

Preemption applies to an entire product type as listed in the coverage section of the Act. For example, State standards for electric

and gas kitchen ranges and ovens are preempted.

H.R. 87 significantly changes the criteria to be applied by the

Secretary in determining whether to grant State petitions for waivers of preemption. The waiver provisions in Section 7 are intended

to give DOE clearer direction and to give the States and other interested persons clearer notice of what the provisions entail. The

combination of the new preemption provisions and the Federal

standards mandated by Section 5 provide an appropriate solution

to the problems caused by the absence of Federal standards and

the adoption of numerous and inconsistent State standards. Section

7 makes appropriate allowance for the interests of the States

through such features as "grandfathering" rules for exising State

requirements, special rules for energy requirements relating to covered products in building codes and State procurement standards,

and waivers from preemption.

Under the new waiver provisions, a State may petition for a

waiver of preemption where a State regulation is necessary to meet

"unusual-and compelling State or local energy interests." As a general rule, a State may not receive a waiver for a standard that

takes effect prior to the effective date of a Federal standard, except

in the case of "unusual and compelling State or local energy interests" (discussed below) that also qualify as an energy emergency. In

addition, a "grandfather" provision applies with respect to this

period.

Special rules also permit State and local building codes to continue to regulate the energy consumption of covered products both

before and after the effective date of Federal standards so long as

the codes meet certain requirements. Provisions relating to State

and local building codes recognize the increasingly important role

of t: ese codes in a State's management of energy resources. H.R. 87

does not affect a State's authority to adopt provisions in building

codes that do not affect the energy efficiency or energy use of covered

products, such as insulation, structure, fire, heating or safety standards.

Section 7 is designed to protect the appliance industry from

having to comply with a patchwork of numerous conflicting State

requirements. It is also designed to ensure that States are able to

respond with their own appliance regulations to substantial and

unusual energy problems, such as high electricity, gas, or heating

oil prices, high dependence on oil (or fuels whose price is tied to oil)

for electricity generation or on out-of-State energy sources, unusual

climatic conditions, or adverse environmental or health and safety

conditions that can be alleviated by energy conservation in appliances. Congress anticipates that States that have such energy problems, and that have met the burden of proof set forth in Section

327, will be granted waivers.

Period prior to the effective date of a Federal standard.-For the

period from the date of enactment of the Act until a Federal standard becomes effective, State energy requirements for covered products are permitted to remain in effect if they were prescribed or

25

licable to products

before January 8, 1987, and are app efficiency requireenacte January 3, 1988. Otherwise, State energy this before are preempted during

ments for cove red products generally exception to this general rule is that DOE

period The primary preemption for "unusual and compellimer- may grant waivers from erests" that qualify as an "energy

State ondition" This narrow exception is to be utilized by DOE envy with the statutory criteria.

on a case-by-case basis in conformity effective.-In general, efperiod when a Federal standard becomes covered product, the

cafe er on the date preempts d standards that may be a all State be ap

appli

licaif Federal stanard ct. DO rant a waiver from preemption

ble to that product. DOE may grant is needed to meet "unthe State establishes St to oralocalgenergy interest," unless interusual and compelling ested persons demonstrate that the waiver should not be granted.

These provisions are not intended to impose an absolute bar on

elation; it is anticipated that States satisfying the

criteria will be granted waivers from preemption.

intthe criteion of "unusual and To meet erests," arState must show that its interests aree ubstanenergy tiallly different in nature or magnitude from those prevailing in the the State must show that it In addition, lan and

has evaluate ealuate d d appliance

has re -

State standards as part of an energy p

burdens

forecast which shows that the from ,thenregulat on make

and reliability of energy savings resulting

ble or necessary when n measured againstouches tosenergyl burens, and reliability of alternative reliance p onreasonably predictable

and production, including of the product subject

market-induced improvements in efficiency o a ral re

to the regulations, provision does forecastinguand doesenot reto use

energygy planning methodology. It does require the quire the for State

state

e the State to use any in a rational. planning process in

State to show that it has engaged wed the cost-effectiveness of various alterwhich the State hasreviewed

which to State appliance nce, however, issue a waiver if he finds that

The Secretary may a preponderance of the

interested persons have demonstrated, by tly burden ance o cturevidence, that the waiver would sign ing, marketing, distribution, sale or servicing of affected products

on a national basis. H.R. 87 specifies se h side

relevant at on rs that

the Secretary should consider in making Finally, the Secretary may not issue a waiver if he finds that interested persons have demonstrated that the State regulation is

likely to result in the unavailability of product types, performance

c This final criterion is ident to forth thein characteristics, features ishet . ment of a, Federal standard set

ical

criterion for the that the examination

new Section 325(1)(4), discussed above, except

under Section 327 is limited to the effect in the State rather than

on a national basis.

arenew provisi because} of State building codes.-Section 7 contains

to State building codes. These provisions a a tool fc sea of

e the significant growth of State building

energy management since the 1978 amendments regulate EPC nts to

A

. Th se

provisions generally apply only to app d di

 EE-RM-PET-100 COMMENT 97