10 C.F.R. Subpart D—Petitions To Exempt State Regulation From Preemption; Petitions To Withdraw Exemption of State Regulation
Title 10 - Energy
Source: 54 FR 6078, Feb. 7, 1989, unless otherwise noted.
(a) This subpart prescribes the procedures to be followed in connection with petitions requesting a rule that a State regulation prescribing an energy conservation standard, water conservation standard (in the case of faucets, showerheads, water closets, and urinals), or other requirement respecting energy efficiency, energy use, or water use (in the case of faucets, showerheads, water closets, and urinals) of a type (or class) of covered product not be preempted. (b) This subpart also prescribes the procedures to be followed in connection with petitions to withdraw a rule exempting a State regulation prescribing an energy conservation standard, water conservation standard (in the case of faucets, showerheads, water closets, and urinals), or other requirement respecting energy efficiency, energy use, or water use (in the case of faucets, showerheads, water closets, and urinals) of a type (or class) of covered product. [63 FR 13318, Mar. 18, 1998] (a) Criteria for exemption from preemption. Upon petition by a State which has prescribed an energy conservation standard, water conservation standard (in the case of faucets, showerheads, water closets, and urinals), or other requirement for a type or class of covered equipment for which a Federal energy conservation standard or water conservation standard is applicable, the Secretary shall prescribe a rule that such standard not be preempted if he determines that the State has established by a preponderance of evidence that such requirement is needed to meet unusual and compelling State or local energy interests or water interests. For the purposes of this section, the term “unusual and compelling State or local energy interests or water interests” means interests which are substantially different in nature or magnitude than those prevailing in the U.S. generally, and are such that when evaluated within the context of the State's energy plan and forecast, or water plan and forecast the costs, benefits, burdens, and reliability of energy savings 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 savings or water savings or production, including reliance on reasonably predictable market-induced improvements in efficiency of all equipment subject to the State regulation. The Secretary may not prescribe such a rule if he finds that interested persons have established, by a preponderance of the evidence, that the State's regulation will significantly burden manufacturing, marketing, distribution, sale or servicing of the covered equipment on a national basis. In determining whether to make such a finding, the Secretary shall evaluate all relevant factors including: the extent to which the State regulation will increase manufacturing or distribution costs of manufacturers, distributors, and others; 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; 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 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 U.S., or in the current or projected sales volume of the covered product type (or class) in the State and the U.S.; and 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. The Secretary may not prescribe such a rule if he finds that such a rule will result in the unavailability in the State of any covered product (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. 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). (1) Requirements of petition for exemption from preemption. A petition from a State for a rule for exemption from preemption shall include the information listed in paragraphs (a)(1)(i) through (a)(1)(vi) of this section. A petition for a rule and correspondence relating to such petition shall be available for public review except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR part 1004: (i) The name, address, and telephone number of the petitioner; (ii) A copy of the State standard for which a rule exempting such standard is sought; (iii) A copy of the State's energy plan or water plan and forecast; (iv) Specification of each type or class of covered product for which a rule exempting a standard is sought; (v) Other information, if any, believed to be pertinent by the petitioner; and (vi) Such other information as the Secretary may require. (2) [Reserved] (b) Criteria for exemption from preemption when energy emergency conditions or water emergency conditions (in the case of faucets, showerheads, water closets, and urinals) exist within State. Upon petition by a State which has prescribed an energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) or other requirement for a type or class of covered product for which a Federal energy conservation standard or water conservation standard is applicable, the Secretary may prescribe a rule, effective upon publication in the (1) Requirements of petition for exemption from preemption when energy emergency conditions or water emergency conditions (in the case of faucets, showerheads, water closets, and urinals) exist within a State. A petition from a State for a rule for exemption from preemption when energy emergency conditions or water emergency conditions exist within a State shall include the information listed in paragraphs (a)(1)(i) through (a)(1)(vi) of this section. A petition shall also include the information prescribed in paragraphs (b)(1)(i) through (b)(1)(iv) of this section, and shall be available for public review except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR part 1004: (i) A description of the energy emergency condition or water emergency condition (in the case of faucets, showerheads, water closets, and urinals) which exists within the State, including causes and impacts. (ii) A description of emergency response actions taken by the State and utilities within the State to alleviate the emergency condition; (iii) An analysis of why the emergency condition cannot be alleviated substantially by importation of energy or water or the use of interconnection agreements; and (iv) An analysis of how the State standard can alleviate substantially such emergency condition. (2) [Reserved] (c) Criteria for withdrawal of a rule exempting a State standard. Any person subject to a State standard which, by rule, has been exempted from Federal preemption and which prescribes an energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) or other requirement for a type or class of a covered product, when the Federal energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) for such product subsequently is amended, may petition the Secretary requesting that the exemption rule be withdrawn. The Secretary shall consider such petition in accordance with the requirements of paragraph (a) of this section, except that the burden shall be on the petitioner to demonstrate that the exemption rule received by the State should be withdrawn as a result of the amendment to the Federal standard. The Secretary shall withdraw such rule if he determines that the petitioner has shown the rule should be withdrawn. (1) Requirements of petition to withdraw a rule exempting a State standard. A petition for a rule to withdraw a rule exempting a State standard shall include the information prescribed in paragraphs (c)(1)(i) through (c)(1)(vii) of this section, and shall be available for public review, except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR part 1004: (i) The name, address and telephone number of the petitioner; (ii) A statement of the interest of the petitioner for which a rule withdrawing an exemption is sought; (iii) A copy of the State standard for which a rule withdrawing an exemption is sought; (iv) Specification of each type or class of covered product for which a rule withdrawing an exemption is sought; (v) A discussion of the factors contained in paragraph (a) of this section; (vi) Such other information, if any, believed to be pertinent by the petitioner; and (vii) Such other information as the Secretary may require. (2) [Reserved] [63 FR 13318, Mar. 18, 1998] (a) Service. All documents required to be served under this subpart shall, if mailed, be served by first class mail. Service upon a person's duly authorized representative shall constitute service upon that person. (b) Obligation to supply information. A person or State submitting a petition is under a continuing obligation to provide any new or newly discovered information relevant to that petition. Such information includes, but is not limited to, information regarding any other petition or request for action subsequently submitted by that person or State. (c) The same or related matters. A person or State submitting a petition or other request for action shall state whether to the best knowledge of that petitioner the same or related issue, act, or transaction has been or presently is being considered or investigated by any State agency, department, or instrumentality. (d) Computation of time. (1) Computing any period of time prescribed by or allowed under this subpart, the day of the action from which the designated period of time begins to run is not to be included. If the last day of the period is Saturday, or Sunday, or Federal legal holiday, the period runs until the end of the next day that is neither a Saturday, or Sunday or Federal legal holiday. (2) Saturdays, Sundays, and intervening Federal legal holidays shall be excluded from the computation of time when the period of time allowed or prescribed is 7 days or less. (3) When a submission is required to be made within a prescribed time, DOE may grant an extension of time upon good cause shown. (4) Documents received after regular business hours are deemed to have been submitted on the next regular business day. Regular business hours for the DOE's National Office, Washington, DC, are 8:30 a.m. to 4:30 p.m. (5) DOE reserves the right to refuse to accept, and not to consider, untimely submissions. (e) Filing of petitions. (1) A petition for a rule shall be submitted in triplicate to: The Assistant Secretary for Conservation and Renewable Energy, U.S. Department of Energy, Section 327 Petitions, Appliance Efficiency Standards, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585. (2) A petition may be submitted on behalf of more than one person. A joint petition shall indicate each person participating in the submission. A joint petition shall provide the information required by §430.41 for each person on whose behalf the petition is submitted. (3) All petitions shall be signed by the person(s) submitting the petition or by a duly authorized representative. If submitted by a duly authorized representative, the petition shall certify this authorization. (4) A petition for a rule to withdraw a rule exempting a State regulation, all supporting documents, and all future submissions shall be served on each State agency, department, or instrumentality whose regulation the petitioner seeks to supersede. The petition shall contain a certification of this service which states the name and mailing address of the served parties, and the date of service. (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. (g) Docket. A petition accepted for filing will be assigned an appropriate docket designation. Petitioner shall use the docket designation in all subsequent submissions. (a) Promptly after receipt of a petition and its acceptance for filing, notice of such petition shall be published in the (b) In addition to the material required under paragraph (a) of this section, each notice shall contain a summary of the State regulation at issue and the petitioner's reasons for the rule sought. DOE may consolidate any or all matters at issue in two or more proceedings docketed where there exist common parties, common questions of fact and law, and where such consolidation would expedite or simplify consideration of the issues. Consolidation shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred. The Secretary may hold a public hearing, and publish notice in the (a) After the submission of public comments under §430.42(a), the Secretary shall prescribe a final rule or deny the petition within 6 months after the date the petition is filed. (b) The final rule issued by the Secretary or a determination by the Secretary to deny the petition shall include a written statement setting forth his findings and conclusions, and the reasons and basis therefor. A copy of the Secretary's decision shall be sent to the petitioner and the affected State agency. The Secretary shall publish in the (c) If the Secretary finds that he cannot issue a final rule within the 6-month period pursuant to paragraph (a) of this section, he shall publish a notice in the (a) A final rule exempting a State standard from Federal preemption will be effective: (1) Upon publication in the (2) Three years after such rule is published in the (3) Five years after such rule is published in the (b) A final rule withdrawing a rule exempting a State standard will be effective upon publication in the [54 FR 6078, Feb. 7, 1989, as amended at 63 FR 13319, Mar. 18, 1998] (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. (a) A decision to prescribe a rule that a State energy conservation standard, water conservation standard (in the case of faucets, showerheads, water closets, and urinals) or other requirement not be preempted is final on the date the rule is issued, i.e., signed by the Secretary. A decision to prescribe such a rule has no effect on other regulations of a covered product of any other State. (b) A decision to prescribe a rule withdrawing a rule exempting a State standard or other requirement is final on the date the rule is issued, i.e., signed by the Secretary. A decision to deny such a petition is final on the day a denial of a request for reconsideration is issued, i.e., signed by the Secretary. [54 FR 6078, Feb. 7, 1989, as amended at 63 FR 13319, Mar. 18, 1998]
Title 10: Energy
PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
Subpart D—Petitions To Exempt State Regulation From Preemption; Petitions To Withdraw Exemption of State Regulation
§ 430.40 Purpose and scope.
§ 430.41 Prescriptions of a rule.
§ 430.42 Filing requirements.
§ 430.43 Notice of petition.
§ 430.44 Consolidation.
§ 430.45 Hearing.
§ 430.46 Disposition of petitions.
§ 430.47 Effective dates of final rules.
§ 430.48 Request for reconsideration.
§ 430.49 Finality of decision.
