[Code of Federal Regulations]
[Title 10, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR430.41]

[Page 275-277]
 
                            TITLE 10--ENERGY
 
                    CHAPTER II--DEPARTMENT OF ENERGY
 
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS--Table of Contents
 
    Subpart D--Petitions To Exempt State Regulation From Preemption; 
           Petitions to Withdraw Exemption of State Regulation
 
Sec. 430.41  Prescriptions of a rule.

    (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)

[[Page 276]]

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 Federal Register, that such 
State regulation not be preempted if he determines that in addition to 
meeting the requirements of paragraph (a) of this section the State has 
established that: an energy emergency condition or water emergency 
condition exists within the State that 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, 
electric energy, or water to its residents at less than prohibitive 
costs; and cannot be substantially alleviated by the importation of 
energy or water or the use of interconnection agreements; and the State 
regulation is necessary to alleviate substantially such condition.
    (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

[[Page 277]]

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]