[Code of Federal Regulations]
[Title 10, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR431.62]

[Page 326-328]
 
                            TITLE 10--ENERGY
 
                    CHAPTER II--DEPARTMENT OF ENERGY
 
PART 431_ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL 
EQUIPMENT--Table of Contents
 
    Subpart D_Petitions To Exempt State Regulation From Preemption; 
           Petitions To Withdraw Exemption of State Regulation
 
Sec.  431.62  Prescriptions of a rule.

    (a) Criteria for exemption from preemption. Upon petition by a State 
which has prescribed an energy conservation standard or other 
requirement for a type or class of covered equipment for which a Federal 
energy conservation standard is applicable, the Secretary shall 
prescribe a rule that such standard not be preempted if he/she 
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. For the purposes of this regulation, the term 
``unusual and compelling State or local energy interests'' means 
interests which are substantially different in nature or magnitude from 
those prevailing in the U.S. generally, and are such that when evaluated 
within the context of the State's energy plan and forecast, the costs, 
benefits, burdens, and reliability of energy savings resulting from the 
State regulation make such regulation preferable or necessary when 
measured against the costs, benefits, burdens, and reliability of 
alternative approaches to energy savings or production, including 
reliance on reasonably predictable market-induced improvements in 
efficiency of all 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

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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 equipment in the State; the extent to which the State regulation 
would cause a burden to manufacturers to redesign and produce the 
covered equipment 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 
equipment 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 commercial and industrial equipment efficiency 
requirements and the cumulative impact such requirements would have. The 
Secretary may not prescribe such a rule if he/she finds that such a rule 
will result in the unavailability in the State of any covered equipment 
(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 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.
    (b) Criteria for exemption from preemption when energy emergency 
conditions exist within State. Upon petition by a State which has 
prescribed an energy conservation standard or other requirement for a 
type or class of covered equipment for which a Federal energy 
conservation standard is applicable, the Secretary may prescribe a rule, 
effective upon publication in the Federal Register, that such 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 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 or electric energy to its residents at less than 
prohibitive costs; and cannot be substantially alleviated by the 
importation of energy 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 exist within a State. A petition from a 
State for a rule for exemption from preemption when energy 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

[[Page 328]]

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 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 the use of 
interconnection agreements;
    (iv) An analysis of how the State standard can alleviate 
substantially such emergency condition.
    (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 other requirement for a type or class of covered equipment, 
when the Federal energy conservation standard 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 equipment 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.