## 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

52

## 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

1

## 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

## STATEMENT OF RELATED CASES

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

defined in Circuit Rule 28-2.6.

### 1

## 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

2

## 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.

3

## 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.

4

## 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.

5

## 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

6

## 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--

7

## (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

8

## 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

9

## 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

10

### 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.

11

## 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

12

## 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.

13

### 14

## 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

15

## 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.

16

## 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

17

## 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.

18

## 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

## 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

## 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

## 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

## (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

## 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

## 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

### 26

## § 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

## § 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

## 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

## 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

### 31

## § 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

## "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

## § 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

## § 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

## § 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 {Gallcnrslraie

fool)

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

## § 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

# t^,,Tqo. 

# 1561

## 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

## 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

## (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

### 42

### 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

### 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); andincludes 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 thanone 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 totransfer 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:

### 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 theenergy 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 acovered 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 classthereof) 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 respectto 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, theSecretary 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 energyuse 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

-Freezers

partial 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 refrigerator

freezers with total refrigerated volume exceeding 39 cubic feet or freezers with total refrigerated volume exceeding 30 cubic feet. "(3)(A)(i) The Secretary shall publish a proposed rule, no later than July 1, 1988, to determine if the standards established by paragraph (1) should be amended. The Secretary shall publish a final rule no later than July 1, 1989, which shall contain
such amendment , if any, and provide that the amendment shall apply to products manufactured on or after January 1, 1993. If such a final rule is not published before January 1, 1990, any amendment of such standards shall apply to products manufactured on or after January 1, 1995. Nothing in this subsection provides any

### 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 ft J on or a er anuary 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 shalldetermine in such rule whether to amend the standards in effect for room air conditioners. (C) Any amendment prescribed under subparagraph (B) shall apply to productsmanufactured 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, todetermine 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.

### 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, todetermine 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, todetermine 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 datewhich 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 andovens 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, todetermine 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 productsof 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 todetermine 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

### 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 allowableenergy 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 bythe 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 consumerwill 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 shallnot 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) tomeet 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 shalldetermine 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 standardor 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 productsshall 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 productswhich 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); orAN 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, theSecretary 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 sectionshall 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.

### 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 bythe 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 determinationunder 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 of1987, 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 ofenergy 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 tothe 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 BEFOREFEDERAL 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 WHENFEDERAL 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).
„( WAIVER for any energy conservation s andard oraothert which provides requirement with re- 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 suchState 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 onreasonably 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 Secretaryfinds (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 ), takinginto 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; or14
"(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 requireme is and the mulative impact such requirements would have. cu. "(4) The Secretary may not prescribe a rule under this subsection if the Secretaryfinds (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) of performance at' acteristics (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 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 325tfor manactured the initial amend merit 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- "(f) an energy emergency condition exists within the State which- "(I) imperils the health, safety, and welfare of its residents because ofthe inability of the State or utilities within the State to provide adequate quantities of gas or electric energy to its residents at less than prohibitive costs; and "(II) cannot be substantially alleviated by the importation of energy or the use of interconnection agreements; and "(ii) the State regulation is necessary to alleviate substantially such con- dition. "(6) In any case in which a State is issued a rule under paragraph (1) with respectto a covered product and subsequently a Federal energy conservation standard concerning such product is amended pursuant to section 325, any such State regulation may file a petition with the Secretary requesting the Secretary to withdraw the rule issued under paragraph (1) with respect osuch product in suchState. 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 para l

h grap e ru (1) shld b e recid b evey the Stateoue withdrawn as a result of the amendment to the Federal standard

. If the Secretary determines that the petitioner has shown that the rule issued by the State should be so withdrawn

, the Secretary shall withdraw it. "(e) EXCEPTION FOR CERTAIN STATE PROCUREMENT STANDARDS

.- Any State regula- tion which sets forth procurement standards for a State (or political subdivision thereof ) shall not be superseded by the provisions of this part if such standards are more stringent than the corresponding Federal energy conservation standards. (f) EXCEPTION FOR CERTAIN BUILDING CODE REQUIREMENTS .-( 1) A regulation or other requirement enacted or prescribed before January 8

, 1987, that is contained in a State or local building code for new construction concerning the energy efficiency or energy use of a covered product is not superseded by this 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

, or revision thereof, enacted or prescribed on or after January 8

, 1987
, that is contained in a St new constru t

ti c a on concih e 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 conservationprodstandard 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 otherrequirement 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 section325 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 allsubmitted 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 thatState 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 alsoshall 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 requiredin the code, or used in calculating the objective, is determined using the applicable test procedures prescribed under section 323, except that the State maypermit 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-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 an issue 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 suchrule 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 ruleunder 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 testprocedure 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.-".

### 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), b

# y striking out "SEC. 332. (a)" and inserting in lieu thereof "SEC. 332. (a) IN 

# G ENERAL.-"; 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 SSUMMARYResidential buildings account for 16.5 Quads of energy consumption in the United States, or 23% of the national total. Of thatfigure, 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 orany 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 efficientproducts 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.
Second, 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 achange 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 identicalamount of energy under the use assumptions contained in the existing test procedure might consume different amounts of energyunder 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 procedurebe 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 otherimpact that a revised test procedure might have on the energy conservation standard , An amended test procedure might alter the

meas ured energy consumption of different models in various ways. For example , five models that are all measured to consume 10units 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 theaverage 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.

### 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) duringwhich 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. Thereason for this is that DOE test procedures are based on the average use cycle for the principle function of the appliance and do notspecify 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 athree-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 thanthe 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 anyState 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 whetherthe 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 anadequate 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;

### 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 achievethe 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 amendedstandard 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 aresult 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 astandard 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 thatenergy 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 manufacturersare 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 manufacturerto meet a standard necessarily make the product type "unavailable." The purpose of this provision is to ensure that an amendedstandard 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 Secretaryshould 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 Statey 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-

### 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 theSecretary in determining whether to grant State petitions for waivers of preemption. The waiver provisions in Section 7 are intendedto 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 Staterequirements, 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, exceptin 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 coveredproducts, 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 safetyconditions 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 theperiod 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 productsbefore 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 compelli mer- 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
ca

### fe er on the date preempts

a all State d standards that may be be ap appli licaif Federal stanard ct. DO rant a waiver from preemptionble 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 anderests," arState must show that its interests aree ubstanTo meet energy tial lly 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 State standards as part of an energy p has re - burdens forecast which shows that the from ,thenregulat on makeand reliability of energy savings resulting ouches tosenergyl burble or necessary when n measured against 

### ens, and reliability of alternative reliance p on

reasonably predictable and production, including of the product subject market-induced improvements in efficiency o a 

### ral reto the regulations, provision does forecastinguand doesenot reto use energy gy 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 theinterested 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 makingFinally, 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 the in 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.



### are new 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 nts to regulate EPCA . Th se provisions generally apply only to app d di