*. . ,- * EE.RMIST/D-8 -4

IN THE UNITED STATES COURT OF APPEALS e- /

FOR THE SECOND CIRCUIT

NATURAL RESOURCES DEFENSE COUNCIL, )

and PUBLIC UTILITY LAW PROJECT,

)

Petitioners, )Petition for

) Review

v. No.

)

SPENCER ABRAHAM, AS SECRETARY

OF THE UNITED STATES DEPARTMENT OF ENERGY, )

and UNITED STATES DEPARTMENT OF ENERGY

)

)

Respondents.

______________________________________________________________________________-__ )

PETITION FOR REVIEW

The Natural Resources Defense Council ("NRDC"), and Public Utility Law

Project ("PULP"), by their attorneys and pursuant to Rule 15(a) of the Federal

Rules of Appellate Procedure, hereby petition the Court for review of a Final Rule

published by respondent the United States Department of Energy ("DOE") in the

Federal Register on April 20, 2001, 66 Fed. Reg. 20191, which amended a Final

Rule entitled Energy Conservation Program for Consumer Products; Central Air

Conditioners and Heat Pumps Energy Conservation Standards, 66 Fed. Reg.

7170 (Jan. 22, 2001) ("Final Air Conditioner and Heat Pump Energy

Conservation Rule") by delaying its effective date. The DOE April 20th Final

Rule, which will be referred to as the "DOE April 20th Effective Date Delay Rule,"

is attached as Exhibit A.

EE-RM-STD-98-440 COMMENT 221 ~~ .. 

.. t ,.' 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

NATURAL RESOURCES DEFENSE COUNCIL, 

and PUBLIC UTILITY LAW PROJECT, 

Petitioners, 

v. 

SPENCER ABRAHAM, AS SECRETARY 

OF THE UNITED STATES DEPARTMENT OF ENERGY, 

and UNITED STATES DEPARTMENT OF ENERGY 

Respondents. 

PETITION FOR REVIEV\' 

) 

) 

) 

) Petition for 

) Review 

) Noo __ _ 

) 

) 

) 

) 

) 

) 

) 

) 

The Natural Resources Defense Council ("NRDC"), and Public Utility Law 

Project ("PULP"), by their attorneys and pursuant to Rule 15(a) of the Federal 

Rules of Appellate Procedure, hereby petition the Court for review of a Final Rule 

published by respondent the United States Department of Energy ("DOE") in the 

Federal Register on April 20, 2001, 66 Fed. Reg. 20191, which amended a Final 

Rule entitled Energy Conservation Program for Consumer Products; Central Air 

Conditioners and Heat Pumps Energy Conservation Standards, 66 Fed. Reg. 

7170 (Jan. 22, 2001) ("Final Air Conditioner and Heat Pump Energy 

Conservation Rule") by delaying its effective date. The DOE April 20th Final 

Rule, which will be referred to as the "DOE April 20th Effective Date Delay Rule," 

is attached as Exhibit A. 
EE.RM/STD-98-440 - >?c /

To the extent that such review is necessary to determine the legality of the

DOE April 20th Effective Date Delay Rule, Petitioners further seek review of a

related Final Rule, published by DOE in the Federal Register on February 2,

2001, 66 Fed. Reg. 8745, which laid the basis for the DOE April 20 t Effective

Date Delay Rule. The February 2nd DOE Final Rule amended the Final Air

Conditioner and Heat Pump Energy Conservation Rule through an initial

"temporary" 60-day delay of that Rule's effective date. DOE's February 2, 2002

Final Rule is attached as Exhibit B. The February 2 nd and April 20th DOE Final

Rules will be referred to collectively as the DOE Effective Date Delay Rules.

Petitioners file this Petition for Review protectively. Petiioners believe

that DOE did not act under any statutory authority in issuing the DOE Effective

Date Delay Rules and that no statutory provision for judicial review that would

confer jurisdiction over Petitioners' claims in this Court applies. For this reason,

Petitioners believe that jurisdiction over Petitioners' claims properly lies in a

United States District Court pursuant to 28 U.S.C. § 1331 and the Administrative

Procedure Act, 5 U.S.C. § 702 et seq. Accordingly, Petitioners will file a

Complaint stating these claims in the United States District Court for the

Southern District of New York.

However, in the event that it is determined that DOE issued the DOE

Effective Date Delay Rules pursuant to § 6295(d) of the Energy Policy and

Conservation Act ("EPCA"), 42 U.S.C. § 6295(d), this Court would have

jurisdiction over Petitioners' claims pursuant to EPCA § 6306(b)(1), which

provides for judicial review by a United States Court of Appeals of rules

2

EE-RM-STD-98-440 COMMENT 221

To the extent that such review is necessary to determine the legality of the 

DOE April 20th Effective Date Delay Rule, Petitioners further seek review of a 

related Final Rule, published by DOE in the Federal Register on February 2, 

2001.66 Fed. Reg. 8745, which laid the basis for the DOE April 20th Effective 

Date Delay Rule. The February 2nd DOE Final Rule amended the Final Air 

Conditioner and Heat Pump Energy Conservation Rule through an initial 

"temporary" 60-day delay of that Rule's effective date. DOE's February 2, 2002 

Final Rule is attached as Exhibit 8. The February 2nd and April 20th DOE Final 

Rules will be referred to collectively as the DOE Effective Date Delay Rules. 

Petitioners file this Petition for Review protectively. Pctmorle'rs believe 

that DOE did not act under any statutory authority in issuing the DOE Effective 

Date Delay Rules and that no statutory provision for judicial review that would 

confer jurisdiction over Petitioners' claims in this Court applies. For this reason. 

Petitioners believe that jurisdiction over Petitioners' claims properly lies in a 

United States District Court pursuant to 28 U.S.C. § 1331 and the Administrative 

Procedure Act. 5 U.S.C. § 702 et~. Accordingly. Petitioners will file a 

Complaint stating these claims in the United States District Court for the 

Southern District of New York. 

However, in the event that it is determined that DOE issued the DOE 

Effective Date Delay Rules pursuant to § 6295(d) of the Energy Policy and 

Conservation Act ("EPCA"). 42 U.S.C. § 6295(d), this Court would have 

jurisdiction over Petitioners' claims pursuant to EPCA § 6306(b)(1), which 

provides for judicial review by a United States Court of Appeals of rules 

2 
EE-RM/STD-98-440 -A /

"prescribed under section ... 6295 of this title." 42 U.S.C. § 6306(b)(1).

Accordingly, Petitioners file this protective Petition for Review to preserve these

claims in the event that it is determined that this Court has jurisdiction over them.

If jurisdiction is found to lie with this Court under EPCA § 6306(b)(1), 42

U.S.C. § 6306(b)(1), venue would be proper in this Court. EPCA provides that

judicial review shall take place in the United States Court of Appeals for the

Circuit in which the Petitioner "resides or has his principal place of business." 42

U.S.C. § 6306(b)(1). Here, each Petitioner has its principal place of busiess

located within the United States Court of Appeals for the Second Circuit: NRDC's

principal office is located in New York City, New York and PULP's principal office,

is located in Albany, New York.

Petitioners NRDC and PULP are adversely affected and aggrieved by the

DOE Effective Date Delay Rules within the meaning of EPCA § 6306(b)(1), 42

U.S.C. § 6306(b)(1) and 5 U.S.C § 702.

NRDC is a national, non-profit environmental organization with over

390,000 members nationally. NRDC's members have strong environmental,

public health, consumer and recreational interests in the prompt implementation

of the Final Air Conditioner and Heat Pump Energy Conservation Rule because

its efficiency standards will help them save energy and lower their energy bills;

reduce air pollution emissions from power plants and the adverse public health

impacts from these emissions; avoid or reduce the occurrence or possibility of

electricity shortages and blackouts; and help to avoid the need to build new

power plants. The environmental, public health, recreational and consumer

3

EE-RM-STD-98-440 COMMENT 221 , ' 

EE-RMISTD.si-440 --~ c:;, / 

"prescribed under section ... 6295 ofthis title: 42 U.S.C. § 6306(b)(1). 

Accordingly, Petitioners file this protective Petition for Review to preserve these 

claims in the event that it is determined that this Court has jurisdiction over them. 

If jurisdiction is found to lie with this Court under EPCA § 6306(b){1), 42 

U.S.C. § 6306(b)(1), venue would be proper in this Court. EPCA provides that 

judicial review shall take place in the United States Court of Appeals for the 

Circuit in which the Petitioner "resides or has his principal place of business." 42 

U.S.C. § 6306(b)(1). Here. each Petitioner has its principal place Csf busi.less 

located within the United States Court of Appeals for the Second Circuit: NRDC's 

principal office is located in New York City, New York and PULP's principal OffiCE' 

is located in Albany. New York. 

Petitioners NRDC and PULP are adversely affected and aggrieved by the 

DOE Effective Date Delay Rules within the meaning of EPCA § 6306(b)(1), 42 

U.S.C. § 6306(b)(1) and 5 U.S.C § 702. 

NRDC is a national. non-profrt environmental organization with over 

390.000 members nationally. NRDC's members have strong environmental, 

public health, consumer and recreational interests in the prompt implementation 

of the Final Air Conditioner and Heat Pump Energy Conservation Rule because 

its efficiency standards will help them save energy and lower their energy bills; 

reduce air pollution emissions from power plants and the adverse public health 

impacts from these emissions; avoid or reduce the occurrence or possibility of 

electricity shortages and blackouts; and help to avoid the need to build new 

power plants. The environmental, public health. recreational and consumer 

3 
EE-RM/STD-98-440 - c /

interests of NRDC's members are adversely affected by DOE's actions in

delaying the effective date of the Final Air Conditioner and Heat Pump Energy

Conservation Rule in violation of law.

PULP is a non-profit corporation organized under the laws of the State of

New York that represents low-income and rural consumers in utility,

telecommunications and energy-related matters. PULP has a strong interest in

the prompt implementation of the Final Air Conditioner and Heat Pump Energy

Conservation Rule because it will benefit low-income consumers by reducing

energy bills for those low-income consumers with central air conditioning

systems. PULP's low-income consumer interests are adversely affected by

DOE's actions in delaying the effective date of the Final Air Conditioner and Heat

Pump Energy Conservation Rule in violation of law.

The DOE Effective Date Delay Rules are arbitrary, capricious, contrary to

statute, ultra vires and otherwise not in accordance with law. For these and other

reasons, if it is determined that this Court has jurisdiction over these claims,

Petitioners respectfully request that this Court, hold unlawful, vacate, enjoin and

set aside the DOE Effective Date Delay Rules pursuant to the Administrative

Procedure Act, 5 U.S.C. § 706(2).

In the DOE April 20th Effective Date Delay Rule, DOE announced its

intention "within the next 60 days to issue a further notice of proposed rulemaking

to revise the standard levels set out in the January 22, 2001, final rule [the Final

Air Conditioner and Heat Pump Energy Conservation Rule]" and to propose a

new rule that decreases the energy efficiency standards set forth in the Final Air

4

EE-RM-STD-98-440 COMMENT 221

EE-RM/STD.9~O * ~~ /' 

interests of NRDC's members are adversely affected by DOE's actions in 

delaying the effective date of the Final Air Conditioner and Heat Pump Energy 

Conservation Rule in violation of law. 

PULP is a non-profrt corporation organized under the laws of the State of 

New York that represents low-income and rural consumers in utility, 

telecommunications and energy-related matters. PULP has a strong interest in 

the prompt implementation of the Final Air Conditioner and Heat Pump Energy 

Conservation Rule because it will benefit low-income consumers by reducing 

energy bills for those low-income consumers with central air conditioning 

systems. PULP's low-income consumer interests are adversely affected by 

DOE's actions in delaying the effective date of the Final Air Conditioner and Heat 

Pump Energy Conservation Rule in violation of law. 

The DOE Effective Date Delay Rules are arbitrary, capricious, contrary to 

statute, ultra vires and otherwise not in accordance with law. For these and other 

reasons, if it is determined that this Court has jurisdiction over these claims, 

Petitioners respectfully request that this Court, hold unlawful, vacate, enjoin and 

set aside the DOE Effective Date Delay Rules pursuant to the Administrative 

Procedure Act, 5 U.S.C. § 706(2). 

In the DOE April 20th Effective Date Delay Rule, DOE announced its 

intention "within the next 60 days to issue a further notice of proposed rulemaking 

to revise the standard levels set out in the January 22, 2001, final rule [the Final 

Air Conditioner and Heat Pump Energy Conservation Rule]" and to propose a 

new rule that decreases the energy efficiency standards set forth in the Final Air 

4 
EE-RM/STD-98-440-t-c0< /

Conditioner and Heat Pump Energy Conservation Rule. 66 Fed. Reg. at 20191.

Petitioners respectfully request that this Court enter a declaratory judgment

pursuant to 28 U.S.C. § 2201(a) that the DOE is barred from decreasing the

energy efficiency standards in the Final Air Conditioner and Heat Pump Energy

Conservation Rule by § 6295(o)(1) of EPCA, which mandates that '[t]he

Secretary may not prescribe any amended standard which increases the

maximum allowable energy use ... or decreases the minimum required energy

efficiency ... of a covered product.' 42 U.S.C § 6295(o)(1).

A list of respondents upon whom the Clerk of the Court should serve this

Petition, pursuant to 42 U.S.C. § 6306(b)(1), is attached as Exhibit C hereto.

5

EE-RM-STD-98-440 COMMENT 221· . 

EE-RM/STD-98-440-"tF--rX:< I 

Conditioner and Heat Pump Energy Conservation Rule. 66 Fed. Reg. at 20191. 

Petitioners respectfully request that this Court enter a declaratory judgment 

pursuant to 28 U.S.C. § 2201 (a) that the DOE is barred from decreasing the 

energy efficiency standards in the Final Air Conditioner and Heat Pump Energy 

Conservation Rule by § 6295(0)(1) of EPCA, which mandates that "[t]he 

Secretary may Rot prescribe any amended standard which increases the 

maximum allowable energy use ... or decreases the minimum required energy 

efficiency ... of a covered product.- 42 U.S.C § 6295(0)(1). 

A list of respondents upon whom the Clerk of the Court should serve this 

Petition, pursuant to 42 U.S.C. § 6306(b)(1), is attached as Exhibit C hereto. 

5 
EE-RM/STD-98-440 -7#e /

Respectfully Submitted, U

Katherine Kennedy (KK 9043)

Natural Resources Defense Counci

40 West 20th Street

New York, New York 10011

(212) 727-4463

Sharon Buccino

John Walke

Natural Resources Defense Council

1200 New York Avenue, N.W.

Suite 400

Washington, D.C. 20005

(202) 289-6868

Attorneys for Petitioners NRDC and

PULP

Dated: June 18, 2001

New York, New York

6

EE-RM-STD-98-440 COMMENT 221

Dated: June 18,2001 

New York, New York 

EE-RM/STD-98-440 -#='b?A / 

Respectfully Submitted, 

Katherine Kennedy (KK 9043) 

Natural Resources Defense Counci 

40 West 201t! Street 

New York, New York 10011 

(212) 727-4463 

Sharon Buccino 

John Walke 

Naturar Resources Defense Council 

1200 New York Avenue, N.W. 

Suite 400 

Washington, D.C. 20005 

(202) 289-6868 

Attorneys for Petitioners NRDC and 

PULP 

6 
EE-RM/STD-98-440 -q '-6t ~/

EXHIBIT A

EE-RM-STD-98-440 COMMENT 221

EE-RM/STD-9~-440 -~~ ~ / 

EXHIBIT A 
EE-RM/STD-98-440 /

Federal Register/Vol. 66, No. 77/Friday, April 20, 2001/Rules and Regulations 20191

DEPARTMENT OF ENERGY central air conditioners and central air DOE is of the view that ARI has raised

conditioning heat pumps that e not some substantial questions about the

Office of Energy Efficiency and yet effective and will not be enforceable legal sustainability of the January 22,

Renewable Energy against manufacturers until January 23. 2001 final rule. Consistent with

2006 (66 FR 7170). The existing Executive Order 12866 and

10 CFR Part 430 standards require a Seasonal Energy consultations with the Office of

[Docket No. EE-RM -0-"0 Efficiency Rating (SEER) of 10 for aplit Management and Budget. DOE intends [ystems with a corresponding Heating within the next 60 days to issue a

RIN 1904AA7 System Performance Rating (HSPF) of further notice of proposed rulemaking to

6.8 and a SEER of 9.7 for single package revise the standard levels set out in the

Energy Conservation Program for systems with a corresponding HSPF of January 22, 2001, final rule and examine

Consumer Products; Central Air 6.6 (42 U.S.C. 6295(d)(1)). The Jan the extent to which current minimum

Conditioners and Heat Pumps Energy 22, 2001, final rule would require a required energy eciency levels are to

Conservation Standards SEER of 13 for all systems with a be in ed in o. In tha notice,

AGENCY: Office of Energy Efficiency and correspondin HSPF of 7.7. DOE intends to propos a 12 SEER with

Renewable Energy, Department of The EFCTIVE DATE line of the January iendt 1 E wit

Energy (DOE). 22, 2001. notice of final rulemaking set a corresponding 74 HSPF. DOE will

ACTION: Final rule; postponement of forth February 21, 2001, as the effective also invite public comment on its ACON": Final rule; postponement of date for the purpose of modifying Part explanation of the tatutory authority to

effective date and reconsideration. 430 of Chapter II of title 10 of the Code make such a proposal upon

SUMMARY: In accordance with the of Federal Regulations. On February 2, reconideration. During the pendency of

memorandum of January 20, 2001, from 2001, pursuant to President Bush's ARI's petition for judicial review and

the Assistant to the President and Chief Regulatory Review Plan, DOE published the related petition for administrative

of Staff, entitled "Regulatory Review a final rule postponing the effective date reconsideration, justice requires that

Plan," published in the Federal Register from February 21, 2001, to April 23, DOE postpone the effective date of the

on January 24, 2001 (66 FR 7702), DOE 2001 (66 FR 8745). January 22. 2001. final rule in order to

temporarily delayed for 60 days (66 FR Subsequently, ARI petitioned DOE for avoid imposing on manufacturers an

8745, February 2. 2001) the effective reconsideration of the January 22, 2001, obligation to undertake planning and

datt of the final rule entitled "Energy final rule, and a group of environmental capital expenditures to come into

Conservation Program for Consumer advocacy organizations have responded compliance by January 23, 2006, with a

Products; Central Air Conditioners and with a statement in opposition to rule DOE is reconsidering.

Heat Pumps Energy Conservation reconsideration. In its petition, ARI To the extent that U.S.C. 553 applies

Standards published in the Federal acknowledges that the rulemaking to this action it is exempt from notice

Register on January 22, 2001 (66 FR record will support a 20 percent and comment procedures based on the

7170). DOE today gives notice of further increase of the minimum required g c exceptions n 5 U.S.C.

postponement of the effective date of energy efficiency levels in the existing 553((B) a 5(d). nd Seeking public

the January 22, 2001, final rule pending standards to a SEER of 12 with a

the outcome of petitions by the Air- corresponding HSPF of 7.3. However, comment and delaying the effect of

Conditioning and Refrigeration Institute ARI contends that DOE unfairly and today's action are impracticable,

(ARI) for reconsideration by DOE and erroneously raised the standard levels unnecessary, and contrary to the public

for judicial review by the United States by 30 percent above the existing interest for several reasons.

Court of Appeals for the Fourth Circuit. standards to a SEER of 13 with a Postponement of the imminent effective

DATES: The effective date of the rule corresponding HSPF of 7.7. On March date of April 23, 2001, avoids confusion

amending 10 CFR Part 430 published at 19, 2001, ARI also petitioned the United among manufacturers as to whether to

66 FR 7170, January 22, 2001, is further States Court of Appeals for the Fourth begin the process of coming into

postponed from April 23. 2001, pending Circuit for judicial review of the final compliance. It avoids expenditures by

the outcome of petitions for2 rule. manufacturers in reliance on a rule with

administrative reconsideration and Under the informal rulemaking respect to which there is a significant

judicial review and further Federal provisions of the Administrative likelihood of modification. It also

Register notice. This action is effective Procedure Act (APA), an agency by rule facilitates reconsideration of a final rule

immediately upon publication. may alter the "effective date" of a that, if allowed to take effect, might well

FOR IRMATN FURTHER COTACT Jill previously published final rule (5 U.S.C. result in a court order remanding the

FOR FURTER IRNFORMeATIaN CONTACT: Jill 551(4). 551(5), 553). The judicial review rule under instructions for further Holtzman, Office of General Counsel, 202Holtzm Office of General Counsel, provisions of the APA also provide for action thereby producing delay in

586-3410,.a n(202) change of "effective date" as follows: realizing the anticipated energy and cost jill.holtzman@hq.doe.gov; Dr. Michael "When an agency finds that justice so savings.

E. McCabe, Office of Energy Efficiency requir, it may postpone the effective

and Renewable Energy, (202) 586-0371, date of action taken by it, pending Issued in Washingon DC on April . ME.McCabe0ee.doe.gov; or Eugene judicial review ... ."(5 U.S.C. 705). 2001.

Margolis. Office of General Counsel. Once the effective date passes, the Eric . Fygi, (202) 586-9526, standards set out in the January 22, 2001 Acting GenerolCounsel.

eugene.margolishq.doe.gov mfinal rule would become part of the IFR Doc. 01-e975 Filed 4-18-01; 2:13 pm)

SUPPLEMENTARY INFORMATION: Pursuant Code of Federal Regulations as an wuo cooE uWI-I-P

to section 325 of the Energy Policy and effective final rule, and manufacturers

Conservation Act (42 U.S.C. 6295), on would have to begin the process of

January 22, 2001. DOE published a coming into compliance by January 23,

notice of final rulemaking, setting forth 2006. That process involves both

energy conservation standards for planning and capital expenditures.

EE-RM-STD-98-440 COMMENT 221

EE-RM/STD-98-440 -F~ / 

Federal R.egister / Vol. 66, No. 77/ Friday, April 20. 2001/ Rules and Regulations 20191 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

RlN 

[Docket 

1804-AA77 

No. ~ 

Energy Conservation Program for 

Consumer Products; Central Air 

Conditioners and Heat Pumps Energy 

Conservation Standards 

AGENCY: Office of Energy Efficiency and 

Renewable Energy. Department of 

Energy (DOE). 

AC11ON: Final rule; postponement of 

effective date and reconsideration. 

SUMMARY: In accordance with the 

memorandum of January 20, 2001. from 

the Assistant to the President and Chief 

of Staff. entitled "Regulatory Review 

Plan," published in the Federal R.egister 

on January 24. 2001 (66 FR 7702). DOE 

temporarily delayed for 60 days (66 FR 

87~ 5, February 2, 2001) the effective 

datt of the final rule entitled "Energy 

Con"ervation Program for Consumer 

Products; Central Air Conditioners and 

Heat Pumps Energy Conservation 

Standards published in the Federal 

Ilegister on January 22. 2001 (66 FR 

7170). DOE today gives notice of further 

postponement of the effective date of 

the January 22. 2001, fina) rule pending 

the outcome of petitions by the AirConditioning and Refrigeration Institute 

(ARIl for reconsideration by DOE and 

for judiCial review by the United States 

Court of Appeals for the Fourth Circuit. 

DATES: The effecti ve date of the rule 

amending 10 CFR Pan 430 published at 

66 FR 7170, January 22. 2001. is further 

postponed from April 23. 2001. pending 

the outcome of petitions for 

administrative reconsideration and 

judicial review and further Federal 

Register notice. This action is effective 

immediately upon publication. 

FOR FURTHER INFORMATION CONTACT: Jill 

Holtzman. Office of General Counsel. 

(202) 586-3410. 

jill.holtzman@hq.doe,gov; Dr. Michael 

E. McCabe. Office of Energy Efficiency 

and Renewable Energy. (202) 586-0371. 

ME.McCabe@ee.doe.gov; or Eugene 

Margolis. Office of General Counsel. 

(202) 586-9526. 

eugene.margoliS@hq.doe.gov 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 325 of the Energy Policy and 

Conservation Act (42 U.S.C. 6295), on 

January 22. 2001. DOE published a notice of final rulemaking. setting forth 

energy conservation standards for 

central air conditioners and central air DOE is of the view that ARI has raised 

conditionins heat pumps that Bra not IOJD8 substantial questions about the 

yet effective and will not be enforceable lepllUStaiDabllity of the January 22. 

against manufacturers until January 23, 2001, final rule. Consistent with 

2006 (66 FR 7170). The existing Executive Order 12866 and 

standards require a Seasonal Energy consultations with the Office of 

Efficiency Rating (SEER) of 10 for split Management and Budget. DOE intends 

systems with a corresponding Heating within the next 80 days to issue a 

System Performance Rating (HSPF) of further notice of proposed rulemaking to 

B.B and a SEER of 9.'1 for .iBgle package revile the standard levels set out in the 

systems with a corresponding HSPF of 

6.6 (42 U.S.C. 6295(d)(1)). The January January 22, 2001, final rule and examine 

22.2001. final rule would require a the ",'dent to which c:urrent minimum 

SEER of 13 for all systems with a ' ~ en~ effiCIency levels. are to 

corresponding HSPF of 7.'1. be mcreased m 2006. In that notice. 

The EFFECTIVE DATE line of the January DOE intends to propose a 12 SEER with 

22.2001. notice of final rulemaking set a corresponding 7.4 HSPF. DOE will 

forth February 21, 2001, as the effective also iBvite public comment on its 

date for the purpose of modifying Part explanation of the statutory authority to 

430 of Chapter U of title 10 of the Code make such a proposal upon 

of Federal Regulations, On February 2, reconsideration. During the pendency of 

2001, pursuant to President Bush's ARI's petition for judicial review and 

Regulatory Review Plan. OOE published the related petition for administrative 

a final rule postponing the effective date reconsideration, justice requires that 

from February 21.2001, to April 23, OOE postpone the effective date of the 

2001 (66 FR 8745). January 22. 2001. final rule. in order to 

Subsequently, ARt petitioned DOE for avoid imposins on manufacturers an 

reconsideration of the January 22. 2001, obligation to undertake plannins and 

fmal rule. and a group of environmental capital expenditures to come into 

advocacy organizations have responded compliance by January.23. 2006. with a 

with a statement in opposition to rule DOE is recon.idering. 

reconsideration. In its petition. ARt acknowledges that the rulemaking To the extent that 5 U.S.C. 553 applies 

record will support a 20 percent to this action. it is exempt from notice 

increase of the minimum required and comment procedures based on the 

energy efficiency levels in the existins good cause exceptions in 5 U.S.C. 

standards to a SEER of 12 with a 553(b)(B) and 553(d)(3). Seeking public 

corresponding HSPF of 7.3. However. comment and delaying the effect of 

ARt contends that DOE unfairly and today's action are impracticable. 

erroneously raised the standard levels unnecessary, and contrary to the public 

by 30 percent above the existins interest for several reasons. 

standards to a SEER of 13 with a Postponement of the imminent effective 

corresponding HSPF of 7.7. On March date of April 23. 2001. avoids confusion 

19.2001. ARt also petitioned the United among manufacturers as to whether to 

States Court of Appeals for the Fourth begin the process of coming into 

Circuit for judicial review of the final compliance, It avoids expenditures by 

rule. manufacturers in reliance on a rule with 

Under the informal rulemaking respect to which there is a significant 

provisions of the Administrative likelihood of modification. It also 

Procedure Act (MA). an agency by rule facilitates reconsideration of a final rule 

may alter the "effective date" of a that, if allowed to take effect. might well 

previously published final rule (5 U.S.C. result in a court order remanding the 

551(4).551(5). 553}. The judicial review rule under instructions for further 

provisions of the AP A also provide for action thereby producing delay in 

a change of "effective date" as follows: realizing the antiCipated energy and cost 

"When an agency finds that justice so savings. 

requires. it may postpone the effective 

date of action taken by it. pending Iuued in Washington. DC on Aprill8. 

judicial review .... " (5 U.S.C. 105). 2001. 

Once the effective date passes. the Eric J. F)'Bi. 

standards set out in the January 22. 2001 Acting Generol Counsel. 

final rule would become part of the IFR Doc. 01-9975 Filed 4-18-01; 2:13 pm) 

Code of Federal Regulations as an effective final rule. and manufacturers 

would have to begin the process of 

comins into compliance by January 23. 

2006. That process involves both 

planning and capital expenditures. 
EE-RM/STD-98-440 ,. /

EXHIBIT B

EE-RM-STD-98-440 COMMENT 221

EXHIBITB 
EE.RM/STD-98-440--,_. /

Federal Register/Vol. 66, No. 23/Friday, February 2, 2001/Rules and Regulations 8745

Appendix J [Amended] DEPARTMENT OF ENERGY date, seeking pror public comment on this temporary delay would have been

2. Appendix I to subpart B of part 430 Offce of Energy Efficency and impractical. as well as contrary to the

is amended in the first sentence of the Renewable Energy public interest in the orderly introductory paragraph by removing the promulgation and implementation of

date "February 12, 2001" and adding in 10 CFR Prt 430 regulations. The imminence of the

its place "April 13. 2001". effective date is also good cause for

Issued in Washington. D.C. on January 29. [Dockt N EE41 -W-O]making this action effective

2001. RN 104-AA77 immediately upon publication.

Speaoar AbrIaham, Issued In Washington. D.C. an January Z9, SecreatryofEnergy. Energy Conservation Program for 200o.

(FR Doc. 01-2884 Filed 2-1-01; 8:45 am] Consumer Products; Central Air Spacr Abraham

saLU coDS 1S.I-0P Conditioners and Heat Pumps Energy En

Conservation Standardsn-.,--. ----- __-------------Conservation Standards lFR Doc. 01-2886 Filed 2-1-01; a:45 am]

DEPARTMENT OF ENERGY AGENCY: Department of Energy (DOE). m. eo o Sahm-P

ACTION: Final rule; delay of effective

Office of Energy Efficiency and date.

Renewable Energy DEPARTMENT OF ENERGY

SUMMARY: In accordance with the

10 CFR Part 430 memorandum of January 20, 2001, from Office of Energy Efficiency and

the Assistant to the President and Chief Renewable Energy

[Docket No. EE-RM-07-400] of Staff, entitled "Regulatory Review

RIN 1904-AA76 Plan," published in the Federal Register 10 CFR Part 431

on January 24, 2001 (66 FR 7702), this [Docket No. EE-RMiSTD-0-100] Energy Conservation Prcgrm for action temporarily delays for 60 days Consumer Products; Enery the effective date of the rule entitled RN 1904AB06

Conservation Standards fm Water "Energy Conservation Program for

Heaters Consumer Consumer Products; Products Central Central Air Air Energy Efficiency Program for

AGENCY: Department of Energy (DOE). Conditioners and Heat Pumps Energy C mercil and ndustral Equipment ACTION: Final rule; notice of reiew. Conservation Standards" published in Efficiency Standards for Commercial _ _ACT__N= rule; notice Final of review. d I esro January22 Heating, Air Conditioning and Water the Federal Register on January 22, Heatng Equipment SUMMARY: The effective date of the final 001 (66 FR 7170).Heating Equpment

rule titled "Energy Conservation DATES: The effective date of the rule AGENCY: Department of Energy (DOE).

Program for Consumer Products; Energy amending 10 CFR part 430 published in ACTION: Final rule; delay of effective

Conservation Standards for Water the Federal Register at 66 FR 7170 on date.

Heaters" (66 FR 4474, January 17, 2001) January 22, 2001, is delayed 60 days,

is January 20, 2004. Consistent with the from February 21, 2001, until April 23, SUMARY: In accordance with the

memorandum of January 20, 2001, from 2001. memorandum of January 20, 2001 from

the Assistant to the President and Chief F FURTER FMATION Cthe Assistant to the President and Chief rn 1URTI IRUFOIMATION CONTACT: of Staff, entitled "Regulatory Review Michael D. Whatly (202) 586-3410, of Staff, entitled "Regulatory Review

Plan" (66 FR 7702, January 24. 2001). michoel.whatley6hq.doe.go Dr. Plan." published in the Federal Register

DOE today announces that Michael E. McCabe, (202) 586-0854, on January 24 2001 (66 FR 7702), this

contemporaneous with the review of michael.e.mccobe6ee.doe.go, or, action temporarily delays for 60 days other recently published final rr' be u ^s\ e Tthe effective date of the rule entitled

regulations it will be reviewing this Eugene Margois, (202) 586- , "Energy Efficiency Program for

final rule to determine whether further eugene.marols .doe.gov.Commercial and Industrial Equipment;

actions are warranted. SUPPLEMENTARY INFORMATION: To the Commercial Heating. Air Conditioning

DATES: The effective date of the rule extent that 5 U.S.C. section 553 applies and Water Heating Equipment"

amending 10 CFR part 430 published in to this action, it is exempt from notice published in the Federal Register on

the Federal Register at 66 FR 4474 on and comment because it constitutes a January 12, 2001 (66 FR 3336).

January 17, 2001 remains January 20, rule of procedure under 5 U.S.C. section DATES: The effective date of the rule

2004. 553(b)(A). Alternatively, DOE's amending 10 CFR part 431 published in implementation of this action without FOR FURTHER NFORMATION CONTACT: implementation of this aion withou the Federal Register at 66 FR 3336 on

Michael D. Whatley, (202) 586-3410, oppo for public comment,January 12, 2001, is delayed for 60 days,

michael.whotleyihq.doe.gov, Terry effctive immediately upon publication from February 12, 2001. until April 13.

mLogee, (202) 5856oe-9127. Ttoday in the Federal Register, is based 2001.

terry.logee@ee.doe.gov; Francine Pinto, s on 55o exceptions in 5 U.S.C. FOR FURTHER INFORMATION CONTACT:

(202)586-7432.section 553((B) and 553(d)3. seMichael D. Whatley. (202) 586-3410. (202) 586--7432, public comment is impracticable, francine.pinto@hq.doe.gov; or, Eugene publiccomment publicmichael.whatley~hq.doe.gov; imracch Cyrus H.

Margolis, (202) 586-9526, unnecessary and contrary to the public Naseri. (202) 586-9138.

eugene.margolishq.do.gov. interest. The temporary 60-day delay in Nasseri, (202) 586-0138, eugene.margolisOhq.doe.gov. effective date is necessary to give DOE cyrus.sseriee.do.gv; or, Eugene

Issued in Washington. D.C. on January 29. officials the opportunity for further Margolis, (202) 586-9526,

2001. review and consideration of neweugene.margolishq.doe.gov.

Spencer Abraham, regulations, consistent with the SUPPLEMENTARY INFORMATION: To the

Secretary of Energy. Assistant to the President's extent that 5 U.S.C. section 553 applies

[FR Doc. 01-2885 Filed 2-1-01; 8:45 am] memorandum of January 20, 2001. to this action, it is exempt from notice

BILLNG CODE aso-O-p Given the imminence of the effective and comment because it constitutes a

EE-RM-STD-98-440 COMMENT 221 EE-RM/STD-98-440 -:i::t::-~ I 

Federal Register / Vol. 66. No. 23/ Friday. February 2. 2001/ Rules and Regulations 8745 

Appeadix J [Ameaded] 

2. Appendix J to subpart B of part 430 

is amended in the first sentence of the 

introductory paragraph by removing the 

date "February 12. 200t" and adding in 

its place "April 13. 200t". 

luued in WuhiDaton. D.C. em Jauuary 2B. 

2001. 

SpeD£8I' Abnaham. 

Secretory of Energy. 

[FR Doc. 01-2884 Filed 2-1-01; 8:45 am) 

IIJI.UtIG CODE .-01"'" 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

[Dock8t No. E~M-97 __ )] 

RIN 1904-AA78 

Energy Conservation Pre'gram ~or 

Consumer Products; Enerr.'Y 

Conservation Standards '01 Water 

Heaters 

AGENCY: Department of Energy (DOE). 

ACTION: Final rule; notice of review. 

SUMMARY: The effective date of the final 

rule titled "Energy Conservation 

Program for Consumer Products: Energy 

Conservation Standards for Water 

Heaters" (66 FR 4474, January t7. 2001) 

is January 20. 2004. Consistent with the 

memorandum ofJanuary 20. 2001. from 

the Assistant to the President and Chief 

of Staff. entitled "Regulatory Review 

Plan" (66 FR 7702. January 24, 2001). 

DOE today announces that 

contemporaneous with the review of 

other recently published final 

regulations it will be reviewing this 

final rule to determine whether further 

actions are warranted. 

DATES: The effective date of the rule 

amending 10 CFR part 430 published in 

the Federal Register at 66 FR 4474 on 

January 17, 2001 remains January 20. 

2004. 

FOR FURTHER 1HF00MATlON CONTACT: 

Michael D. Whatley. (202) 58&-3410. 

michoel.whatley@hq.doe.gov;Terry 

Logee. (202) 58&-9127. 

teny.Jogee@ee.doe.gov; Francine Pinto. 

(202) 586-7432. 

froncine.pinto@hq.doe.gov;or. Eugene 

Margolis. (202) 586-9526. 

eugene.margolisehq.doe.gov. 

Issued in Washington. D.C. on January 29. 

2001. 

Spencer Abraham. 

Secretary of Energy. 

[FR Doc. 01-2885 Filed 2-1-01; 8:45 am) 

BlLUHG CODE _...,. 

DEPARTMENT OF ENERGY 

OffIce of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

(DocIciM No. EE-AII-87-t40J 

RlN 11CM-AA77 

Energy Conservation Program for 

Consumer Products; Central Air 

Conditioners and Heat Pumps Energy 

Conservation Standards 

AGENCY: Department of Energy (DOE). 

ACT10N: Final rule; delay of effective 

date. 

SUMMARY: In accordance with the 

memorandum ofJanuuy 20. 2001. from 

the Assistant to the President and Chief 

of Staff. entitled "Regulatory Review 

Plan," published in the Federal Register on January 24. 2001 (66 FR 7702). this 

action temporarily delays for 60 days 

the effective date of the rule entitled 

"Energy Conservation Program for 

Consumer Products; Central Air 

Conditioners and Heat Pumps Energy 

Conservation Standards" published in 

the Federal Register on January 22. 

200t (66 FR 7170). 

DATES: The effective date of the rule 

amending 10 CFR part 430 published in 

the Federalltegiater at 66 FR 7t 70 on 

January 22. 2001. is delayed 60 days. 

from February 21. 2001. until April 23. 

2001. 

FOR FURTHER IIIFORMATlON CONTACT: 

Michael D. Whatley. (202) 58&-3410, 

michael.whatJey@hq.doe.gov;Dr. 

Michael E. McCabe. (202) 586-0854, 

michoel.e.mccabe@ee.doe.gov; or. 

Eugene Margolis, (202) 586-9526. 

eugene.margolisehq.doe.gov. 

SUPPLEMENTARY INFORMATION: To the 

extent that 5 U.S.C. section 553 applies 

to this action. it is exempt from notice 

and comment because it constitutes a 

rule of procedure under 5 U.S.C. section 

553(b)[A). Alternatively. DOE's 

implementation of this action without 

opportunity for public comment, 

effective immediately upon publication 

today in the Federal Register. is based on the good cause exceptions in 5 U.S.C. 

section 553(b)(B) and 553(d)(3). Seeking 

public comment is impracticable, 

unnecessary and contrary to the public 

interest. The temporary 6(kiay delay in 

effective date is necessary to give DOE 

officials the opportunity for further 

review and consideration of new regulations. consistent with the 

Assistant to the President's 

memorandum of January 20. 2001. 

Given the imminence of the effective 

date. seekins prior public comment on 

this temporary delay would have been 

impractical. as well as contrary to the 

public interest in the orderly 

promulgation and implementation of 

regulations. The imminence of the 

effective date is also good cause for 

making this action effective 

immediately upon publication. 

Iuued 10 WuhiDaton. D.C. aD January Z9. 

2001. 

Spaac:er Abrabam. 

Sec:maty of Energy. 

(FR Doe. 01-2886 Filed 2-1-01; 8:45 am] 

IJIU.ING COOl! ~ 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 431 

[Docket No. EE~MISTD-OO-100] 

RlN 11CM-A806 

IEnergy Efficiency Program for 

Commercial and Industrial Equipment; 

IEfficlency Standards for CommerCial 

Heating, Air Conditioning and Water 

HeatIng Equipment 

AGeNCY: Department of Energy (DOE). 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: In accordance with the 

memorandum of January 20. 2001. from 

the Assistant to the President and Chief 

of Staff, entitled "Regulatory Review 

Plan." published in the Federal Register on January 24. 2001 (66 FIt 7702). this 

action temporarily delays for 60 days 

the effective date of the rule entitled 

"Energy Efficiency Program for 

Commercial and Industrial Equipment; 

Commercial Heating. Air Conditioning 

and Water Heating Equipment" 

published in the Federal R.egister on 

January t2. 2001 (66 FR 3336). 

DAT!S: The effective date of the rule 

amending 10 CFR part 431 published in 

the Federal Register at 66 FIt 3336 on January t2, 2001. is delayed for 60 days. 

from February t2. 2001. until April 13. 

2001. 

FOR FURTHER INFORMATION CONTACT: 

Michael D. Whatley. (202) 58&-3410. 

michael.whatleyOhq.doe.gov; Cyrus H. 

Nasseri. (202) 586-9138. 

cyrvs.nosseri@ee.doe.gov; or. Eugene 

Margolis. (202) 58&-9526. 

eugene.margoliriihq.doe.gov. 

SUPPLEMENTARY INFORMATlON: To the 

extent that 5 U.S.C. section 553 applies 

to this action. it is exempt from notice 

and comment because it constitutes a 
EE-RMISTD-9 -44 /

EXHIBIT C

EE-RM-STD-98-440 COMMENT 221 , , 

• EE-RM/STD-98-440 - if: ~6? I 

EXHIBJTC 
EXHIBIT C

The Honorable Spencer Abraham EE-RM/STD-98-440 /

Secretary of Energy

Forrestal Building

1000 Independence Avenue, S.W.

Washington D.C. 20585-1000

The U.S. Department of Energy

Forrestal Building

1000 Independence Avenue, S.W.

Washington D.C. 20585-1000

EE-RM-STD-98-440 COMMENT 221

· . , . , 

The Honorable Spencer Abraham 

Secretary of Energy 

Forrestal Building 

1000 Independence Avenue. S.W. 

Washington D.C. 20585-1000 

The U.S. Department of Energy 

Forrestal Buifding 

1000 Independence Avenue. S.W. 

Washington D.C. 20585-1000 

EXHIBIT C 

EE-RM/STD-98-440 - ~c:<.~ I