[Federal Register Volume 71, Number 24 (Monday, February 6, 2006)]
[Proposed Rules]
[Pages 6022-6025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1041]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 430

[Docket No. EE-RM-PET-100]


Energy Efficiency Program for Consumer Products: California 
Energy Commission Petition for Exemption From Federal Preemption of 
California's Water Conservation Standards for Residential Clothes 
Washers

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Petition for Exemption.

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SUMMARY: The Department of Energy (hereafter ``the Department'') 
announces the filing of the California Energy Commission's Petition for 
Exemption from Federal Preemption of California's Water Conservation 
Standards for Residential Clothes Washers (hereafter ``California 
Petition''). To help the Department evaluate the California Petition's 
request, the Department invites interested members of the public to 
submit comments they may have on the California Petition and 
information related to the evaluation factors outlined in the Energy 
Policy and Conservation Act.

DATES: The Department will accept written comments, data, and 
information regarding the California Petition until, but no later than 
April 7, 2006.

ADDRESSES: A document entitled ``California Preemption Exemption 
Petition'' is available for review on the Internet at http://www.eere.energy.gov/buildings/ appliance--standards/state--
petitions.html or from Ms. Brenda Edwards-Jones, U.S. Department of 
Energy, Building Technologies Program, EE-2J, Room 1J-018, 1000 
Independence Ave., SW., Washington, DC 20585-0121, or by telephone 
(202) 586-2945.
    Please submit comments, identified by docket number EE-RM-PET-100 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include either the 
docket number EE-RM-PET-100, and/or ``California Preemption Exemption 
Petition'' in the subject line of the message.
     Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 
Independence Avenue, SW., Washington, DC 20585-0121. Please submit one 
signed original paper copy.
     Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. 
Department of Energy, Building Technologies Program, Room 1J-018, 1000 
Independence Avenue, SW., Washington, DC 20585-0121.
    Instructions: All submissions received must include the agency name 
and docket number for this proceeding. For detailed instructions on 
submitting comments and additional information on the proceeding, see 
section II. C of this document (Submission of Comments).
    Docket: For access to the docket to read the background documents 
relevant to this matter, go to the U.S. Department of Energy, Forrestal 
Building, Room 1J-018 (Resource Room of the Building Technologies 
Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-
2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays. Available documents include the following items: The 
California Petition; California's 2005 water plan, California Water 
Plan Update 2005: Public Review Draft; prior Department rulemakings 
regarding clothes washers or comments received. Please call Ms. Brenda 
Edwards-Jones at the above telephone number for additional information 
regarding visiting the Resource Room.


    Please note: The Department's Freedom of Information Reading 
Room (formerly Room 1E-190 at the Forrestal Building) is no longer 
housing rulemaking materials.


    Electronic copies of the California Petition are available online 
at either the Department of Energy's Web site at the following URL 
address: http://www.eere.energy.gov/buildings/ appliance--standards/
state--petitions.html or the California Energy Commission's Web site at 
the following URL address: http://www.energy.ca.gov/appliances/2005-09-13_ PETITION--CLOTHES-- WASHERS.PDF. An electronic copy of 
California's water plan update and related material is available online 
at the California Department of Water Resources Web site at the 
following URL address: http://www.waterplan.water.ca.gov/. Electronic 
copies of prior Department rulemakings regarding clothes washers and of 
the Final Rule Technical Support Document for clothes washers are 
available from the Department's Building Technologies Program's Web 
site at the following URL address:

[[Page 6023]]

http://www.eere.energy.gov/buildings/ appliance--standards/ 
residential/clothes--washers.html.
    This notice also refers to California standards for residential 
clothes washers adopted by the California Energy Commission (CEC) in 
2004. Material related to this State regulation is available at the 
following URL address under Docket  03-AAER-1(RCW): http://www.energy.ca.gov/appliances/2003rulemaking/clothes_washers/index.html.

FOR FURTHER INFORMATION CONTACT: Bryan Berringer, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 586-0371, or e-mail: [email protected].
    Thomas DePriest, Esq., U.S. Department of Energy, Office of General 
Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585, 
(202) 586-9507, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Introduction
    A. Authority
    B. Background
    1. Department Rulemakings Regarding Clothes Washers
    2. California Petition for Waiver of Federal Preemption and 
Summary of State Regulation
    3. Factors to Consider in Granting or Declining an Exemption
II. Discussion
    A. Summary of Reasons for Petition
    B. Issues on which the Department Seeks Comment
    C. Submission of Comments

I. Introduction

A. Authority

    Part B of Title III of the Energy Policy and Conservation Act, as 
amended (hereafter ``Act''or EPCA) established the Energy Conservation 
Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-
6309) Products covered under the program, including residential clothes 
washers, and the authority to regulate them, are listed in section 322. 
(42 U.S.C. 6292) Section 325(g) (42 U.S.C. 6295(g)) establishes 
standards for certain types of residential clothes washers and requires 
the Department to issue two rulemakings to consider further amendments.
    Federal energy efficiency requirements for residential products 
generally preempt State laws or regulations concerning energy 
conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) 
However, the Department can grant waivers of Federal preemption 
(hereafter ``waiver'' or ``exemption'') for particular State laws or 
regulations, in accordance with the procedures and other provisions of 
section 327(d) of the Act. (42 U.S.C. 6297(d)) In particular, section 
327(d)(1)(A) of EPCA provides that any State or river basin commission 
with a State regulation regarding energy use, energy efficiency, or 
water use requirements for products regulated by the Energy 
Conservation Program, may petition for an exemption from Federal 
preemption and seek to apply its own State regulation. (42 U.S.C. 
6297(d)(1)(A))

B. Background

1. Department Rulemakings Regarding Clothes Washers
    On January 12, 2001, the Department issued a final rule for energy 
efficiency and design standards for five product classes of clothes 
washers (hereafter referred to as the January 2001 final rule): Top-
loading compact; Top-loading, standard; Front-loading; Top-loading, 
semi-automatic; and Top-loading, suds-saving. (66 FR 3314-3333) The 
January 2001 final rule set minimum energy efficiency standards that 
would become effective on January 1, 2004, and January 1, 2007. DOE 
standards for residential products are energy efficiency standards 
only; DOE has not set a water use requirement for residential clothes 
washers. (10 CFR 430.32(g))

                         Table I.1.--Federal Residential Clothes Washer Standard Levels
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                                                              Modified energy factor  (ft.\3\/kWh/cycle)
              Product class                 Capacity -----------------------------------------------------------
                                            (ft.\3\)    Effective date  1/1/2004      Effective date  1/1/2007
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Top-Loading, compact.....................       <1.6  0.65........................  0.65
Top-Loading, standard....................      >=1.6  1.04........................  1.26
Front-Loading............................  .........  1.04........................  1.26
Top-Loading, Semi-automatic..............  .........  Unheated rinse water option.  Unheated rinse water option.
Suds-saving..............................  .........  Unheated rinse water option.  Unheated rinse water option.
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    The January 2001 final rule constituted the second residential 
clothes washer rulemaking required by EPCA. The initial standards 
prescribed in EPCA, as amended by the National Appliance Energy 
Conservation Act of 1987, required an unheated water option, and 
permitted a water rinse option for clothes washers manufactured on or 
after January 1, 1988. (42 U.S.C. 6295(g)) Subsequent standard 
amendments made by the Department established the five product classes 
in Table I.1 and set minimum energy efficiency standards.
    The Energy Policy Act of 2005 amended the Act to adopt new energy 
efficiency and water conservation standards for commercial clothes 
washers. The commercial clothes washer standards require products 
manufactured on or after January 1, 2007, to have a modified energy 
factor of at least 1.26 and a water factor of not more than 9.5. (42 
U.S.C. 6313(e))
2. California Petition for Waiver of Federal Preemption and Summary of 
State Regulation
    On September 16, 2005, the Department received a petition for an 
exemption from the California Energy Commission (CEC) (hereafter 
referred to as the California Petition), dated September 13, 2005, 
pursuant to the requirements of section 327(d) of the Act (42 U.S.C. 
6297(d)) and Title 10 Code of Federal Regulations (CFR) Part 430, 
Subpart D, and Sections 430.41(a)(1) and 430.42 of the CFR. However, by 
letter dated November 18, 2005, the Department notified the CEC that 
its petition had failed to comply with certain requirements set out in 
10 CFR 430.42(c). The CEC responded on December 5, 2005, and provided 
the required information. By letter dated December 23, 2005, the 
Department notified the CEC that it had accepted the California 
petition as supplemented.

[[Page 6024]]

    California Assembly Bill 1561, passed by the California legislature 
and signed into law in 2002, required the CEC to adopt water efficiency 
standards for residential clothes washers by January 2004, and to file 
a petition with the Department for a waiver by April 2004. The law also 
required that the new standards be at least as efficient as commercial 
clothes washers. (California Public Resources Code section 25402 (e)) 
California currently requires that commercial clothes washers meet a 
maximum water factor of 9.5 by January 1, 2007, the same standard as 
prescribed by Section 342 of EPCA, as amended by the Energy Policy Act 
of 2005 in August of 2005. (20 C.C.R. 1605.3(p) and 42 U.S.C. 6313(e)) 
(CEC, No. 1 at 2) \1\
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    \1\ A notation in the form ``CEC, No. 1 at p. 2'' identifies a 
written comment the Department has received and has included in the 
docket of this rulemaking. This particular notation refers to a 
comment (1) By the California Energy Commission (CEC), (2) in 
document number 1 in the docket of this proceeding (maintained in 
the Resource Room of the Building Technologies Program), and (3) 
appearing on page 2 of document number 1.
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    In 2004, the CEC adopted water efficiency standards for Top- and 
Front-Loading residential clothes washers, setting a two-tier standard 
of 8.5 maximum water factor effective January 1, 2007, and of 6.0 
maximum water factor, effective January 1, 2010. (20 C.C.R 1605.2(p)) 
(CEC, No. 1 at 3)
3. Factors to Consider in Granting or Declining an Exemption
    Section 327(d) of the Act sets forth factors that the Secretary of 
Energy (hereafter ``Secretary'') is to consider in evaluating whether 
to grant an exemption. (42 U.S.C. 6297(d)) Section 327 (d)(1)(B) 
requires the Secretary to grant an exemption if the Secretary 
determines that the proffered State regulation ``is needed to meet 
unusual and compelling State or local water interests.'' (42 U.S.C. 
6297(d)(1)(B)) According to section 327(d)(1)(C) of the Act, ``unusual 
and compelling'' interests are defined as interests which ``(i) are 
substantially different in nature or magnitude than those prevailing in 
the United States generally; and (ii) are such that the costs, 
benefits, burdens, and reliability of energy or water savings resulting 
from the State regulation make such regulation preferable or necessary 
when measured against the costs, benefits, burdens, and reliability of 
alternative approaches to energy or water savings or production, 
including reliance on reasonably predictable market-induced 
improvements in efficiency of all products subject to the State 
regulation.'' (42 U.S.C. 6297(d)(1)(C))
    According to sections 327(d)(3)-(4), the Secretary may not grant an 
exemption if the Secretary finds the State regulation would 
``significantly burden manufacturing, marketing, distribution, sale, or 
servicing of the covered product on a national basis,'' or ``result in 
the unavailability'' in the State of any covered product's 
``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).'' (41 U.S.C. 
6297(d)(3) and (4)) To evaluate whether the State regulation will 
create a significant burden, the Secretary is to consider ``all 
relevant factors,'' including the following:
    ``(A) The extent to which the State regulation will increase 
manufacturing or distribution costs of manufacturers, distributors, and 
others;
    (B) The extent to which the State regulation will disadvantage 
smaller manufacturers, distributors, or dealers or lessen competition 
in the sale of the covered product in the State;
    (C) The extent to which the State regulation would cause a burden 
to manufacturers to redesign and produce the covered product type (or 
class), taking into consideration the extent to which the regulation 
would result in a reduction--
    (i) In the current models, or in the projected availability of 
models, that could be shipped on the effective date of the regulation 
to the State and within the United States; or
    (ii) In the current or projected sales volume of the covered 
product type (or class) in the State and the United States; and
    (D) The extent to which the State regulation is likely to 
contribute significantly to a proliferation of State appliance 
efficiency requirements and the cumulative impact such requirements 
would have.'' (U.S.C. 6297(d)(3)(A) through (D))

II. Discussion

A. Summary of Reasons for Petition

    The California Petition seeks waivers of Federal preemption for all 
classes of residential clothes washers that are covered products under 
the Act, ``including but not necessarily limited to--Compact and 
Standard; Top-Loading and Front-Loading; Automatic and Semi-Automatic; 
and Suds-Saving and Non-Suds-Saving.'' (CEC, No. 1 at p. 4)
    According to the California Petition, the CEC states that 
California currently uses, and will continue to need, cost-effective 
water conservation strategies. The CEC states that every water supply 
source for the State is ``over-appropriated'' and water demand is 
projected to grow rapidly. (CEC, No. 1 at p. 1) Furthermore, the CEC 
claims that clothes washer standards are distinctly preferable to 
alternative approaches to water savings and production. (CEC, No. 1 at 
p. 26) The CEC additionally argues that California's local and state 
water interests are unusual and compelling, and that ``California's 
water interests (and associated energy interest) are different in both 
nature and magnitude than those prevailing in the United States 
generally. * * *'' (CEC, No. 1 at p. 5)
    The California Petition also provides information relating to the 
California standard's burden on manufacturing, marketing, distribution, 
sale, or servicing of the residential clothes washers on a national 
basis, and states that California's water efficiency standards will 
achieve benefits without significantly impacting the residential 
clothes washer industry or the consumer-usefulness of appliances. (CEC, 
No. 1 at pp. 37 through 41)

B. Issues on Which the Department Seeks Comment

    The Department is interested in receiving comments on all aspects 
of the California Petition and this notice. The Department is 
especially interested in public comment on information related to the 
evaluation of factors outlined in section 327 of the Act, including the 
following: whether the California Petition has established that 
California has unusual and compelling State or local water interests to 
warrant a waiver from Federal preemption; whether the State regulation 
will be burdensome; and whether the State regulation will affect the 
availability of covered products with features generally available in 
California. In that regard, the Department is particularly interested 
in receiving comment on the following questions:
     Are California's water interests ``unusual and 
compelling,'' and how do they compare to those of the Nation and of 
other States? (42 U.S.C. 6297(d)(1)(B))
     Are there other factors and information in addition to the 
California Petition the Department should consider in determining 
whether California's water interests are ``unusual and compelling''? 
(42 U.S.C. 6297(d)(1)(C))

[[Page 6025]]

     Are the water use issues ``substantially different in 
nature or magnitude than those prevailing in the United States 
generally?'' Should the phrase, ``in the United States generally'' be 
interpreted to include comparison to regions as well as national 
averages? Are the water use issues in California substantially 
different in nature or magnitude than those prevailing in other western 
states? (42 U.S.C. 6297(d)(1)(C)(i))
     Are there ``alternative approaches to * * * [clothes 
washer] water savings'' that could achieve the same water savings in 
California as would be achieved by the California clothes washer 
standards? (42 U.S.C. 6297(d)(1)(C)(ii))
     Are there ``alternative approaches to * * * water savings 
or production'' not considered in the California water plan that could 
achieve the same water savings in California as would be achieved by 
the California clothes washer standards? (42 U.S.C. 6297(d)(1)(C)(ii))
     Are there alternative policies or programs in California 
that can achieve the same water savings at the same or lower cost or 
burden, or with greater reliability and benefit? (42 U.S.C. 
6297(d)(1)(C)(ii))
     Are there estimates of market-induced improvements in 
efficiency of all products subject to the California regulation? (42 
U.S.C. 6297(d)(1)(C)(ii))
     Is the analysis used in the California Petition accurate? 
For example, are the State's savings estimates correct? How valid are 
the State's assumptions?
     Is California Petition's statement that water supplies are 
not ``fungible'' and that it is very difficult to transfer any water 
savings from one sector of the State to another accurate? Are there 
ways California can transfer water savings more easily?
     What impacts would the State standards have on 
manufacturing, marketing, distribution, sale, or servicing of covered 
products on a national basis? (42 U.S.C. 6297(d)(3))
     What impact will the California clothes washer standard 
have on manufacturing or distribution costs of manufacturers, 
distributors and others? (42 U.S.C. 6297(d)(3)(A))
     Will the California clothes washer standard disadvantage 
smaller manufacturers, distributors, or dealers or lessen competition 
in California? (42 U.S.C. 6297(d)(3)(B))
     To what extent would the California standard cause a 
burden to manufacturers to redesign their residential clothes washers? 
(42 U.S.C. 6297(d)(3)(C))
     Would the California standard result in a reduction in 
product availability? (42 U.S.C. 6297(d)(3)(C)(i))
     Would the California standard result in a reduction in 
sales volume of clothes washers either in California or in the United 
States as a whole? (42 U.S.C. 6297(d)(3)(C)(ii))
     To what extent is the California regulation likely to 
contribute significantly to a proliferation of State appliance 
efficiency requirements? What cumulative impact would such requirements 
have? (42 U.S.C. 6297(d)(3)(D))
     Would the California regulation impact the availability 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? (42 U.S.C. 6297(d)(4))
     Would the California standard affect the availability of 
classes of clothes washers or clothes washer performance 
characteristics, reliability, features, sizes, capacities and volumes 
that are generally available in California? (42 U.S.C. 6297(d)(4))
    After the period for written comments, the Department will consider 
the information and views submitted, and make a decision on whether to 
prescribe a waiver from Federal preemption for California with regard 
to water use standards for residential clothes washers.

C. Submission of Comments

    The Department will accept comments, data, and information 
regarding this notice no later than the date provided at the beginning 
of the notice. Please submit comments, data, and information 
electronically. Send them to the following e-mail address: 
[email protected]. Submit electronic comments in 
WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid 
the use of special characters or any form of encryption. Identify 
comments in electronic format by the docket number EE-RM-PET-100 and 
wherever possible include the electronic signature of the author. 
Absent an electronic signature, comments submitted electronically must 
be followed and authenticated by submitting the signed original paper 
document. DOE does not accept telefacsimiles (faxes).
    In accordance with 10 CFR 1004.11, any person submitting 
information that he or she believes to be confidential and exempt by 
law from public disclosure should submit two copies: one copy of the 
document including all the information believed to be confidential, and 
one copy of the document with the information believed to be 
confidential deleted. The Department will make its own determination 
about the confidential status of the information and treat it according 
to its determination.
    Factors of interest to the Department when evaluating requests to 
treat submitted information as confidential include: (1) A description 
of the items; (2) whether and why such items are customarily treated as 
confidential within the industry; (3) whether the information is 
generally known by or available from other sources; (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure; (6) when such information might lose its 
confidential character due to the passage of time; and (7) why 
disclosure of the information would be contrary to the public interest.

    Issued in Washington, DC, on January 27, 2006.
Douglas L. Faulkner,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 06-1041 Filed 2-3-06; 8:45 am]
BILLING CODE 6450-01-P