*. 

## . ,- * 

## 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.**~~**..

.. 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) ofthe Federal Rules ofAppellate Procedure, hereby petition the Court for review ofa 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 necessaryto determine the legality ofthe 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 forthe DOE April 20t 

## 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 ofthat 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 forjudicial review that would conferjurisdiction over Petitioners' claims in this Court applies. For this reason, Petitioners believe thatjurisdiction 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 inthe 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) ofthe 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 forjudicial review by a United States Court ofAppeals of rules

2 To the extent that such review is necessary to determine the legality ofthe DOE April 20th 

## Effective Date Delay Rule, Petitioners further seek review ofa related Final Rule, published by DOE in the Federal Register on February 2, 2001.66 Fed. Reg. 8745, which laid the basis forthe DOEApril 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 ofthat 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 forjudicial review that would conferjurisdiction over Petitioners' claims in this Court applies. Forthis reason. Petitioners believe thatjurisdiction 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) ofthe 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 forjudicial review by a United States Court ofAppeals of rules



## 2

## EE-RM/STD-98-440 -A / "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 hasjurisdiction over them. Ifjurisdiction isfound 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 ofAppeals forthe 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 ofthe Final Air Conditioner and Heat Pump Energy Conservation Rule because its efficiency standards will help them save energy and lowertheir 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-RMISTD.si-440

# --~

# c:;, / "prescribed under section

... 6295 ofthistitle: 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 thatthis Court hasjurisdiction overthem. Ifjurisdiction 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 ofAppeals forthe 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 ofAppeals forthe 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 ofthe Final Air Conditioner and Heat Pump Energy Conservation Rule because its efficiency standards will help them save energy and lowertheir 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 ofthe 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 inaccordance with law. For these and other reasons, if it is determined that this Court hasjurisdiction over these claims, Petitioners respectfully request thatthis 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). Inthe DOE April 20th Effective Date Delay Rule, DOE announced its intention "within the next 60 daysto issue afurther 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.9~O

# ***~~**

# /'

interests of NRDC's members are adversely affected by DOE's actions in delaying the effective date ofthe Final Air Conditioner and Heat Pump Energy Conservation Rule in violation of law. PULP is a non-profrt corporation organized underthe laws ofthe 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 ofthe 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 ofthe 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 adeclaratoryjudgment pursuant to 28 U.S.C. §2201(a) thatthe DOE is barred from decreasing the energy efficiency standards inthe FinalAir 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 acovered product.' 42 U.S.C § 6295(o)(1). A list of respondents upon whom the Clerk ofthe Court should serve this Petition, pursuant to 42 U.S.C. §6306(b)(1), isattached as Exhibit Chereto.

5 · . 

## 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 declaratoryjudgment 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

... ordecreases the minimum required energy efficiency

... ofa covered product.- 42 U.S.C 

## § 6295(0)(1). A list of respondents upon whom the Clerk ofthe 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 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, NewYork 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-9~-440**-~~ ~** /

EXHIBITA

## 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 ofthe view that ARIhas 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 ofthe 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 ofproposed rulemaking to 6.8 and a SEER of9.7 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. Intha notice, AGENCY: Office ofEnergy Efficiency and correspondin HSPFof 7.7. DOE intends to propos a 12 SEER with Renewable Energy, Department of The EFCTIVE DATE line ofthe January iendt 1 E wit Energy (DOE). 22, 2001. notice offinal 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 ofmodifying Part explanation ofthe tatutory authority to effective date and reconsideration. 430 ofChapter II oftitle 10 ofthe Code make such a proposal upon SUMMARY: In accordance with the ofFederal Regulations. On February 2, reconideration. During the pendency of memorandum of January 20, 2001, from 2001, pursuant toPresident 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, toApril 23, DOE postpone the effective date ofthe 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 ofthe January 22, 2001, obligation to undertake planning and datt ofthe final rule entitled "Energy final rule, and a group ofenvironmental 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 isexempt 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 offurther increase ofthe minimum required g c exceptions n 5 U.S.C. postponement ofthe effective date of energy efficiency levels in the existing 553((B) a nd 5(d). Seeking public the January 22, 2001, final rule pending standards to a SEER of 12 with a the outcome ofpetitions bythe Air- corresponding HSPF of7.3. 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 interestfor several reasons. Court ofAppeals for the Fourth Circuit. standards to a SEER of 13 with a Postponement ofthe imminent effective DATES: The effective date of the rule corresponding HSPF of7.7. On March date ofApril 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 forjudicial review ofthe final compliance. It avoids expenditures by the outcome ofpetitions for2 rule. manufacturers in reliance on a rule with administrative reconsideration and Under the informal rulemaking respect towhich there is a significant judicial review and further Federal provisions ofthe Administrative likelihood ofmodification. 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" ofa that, ifallowed to take effect, might well FOR FURTHER IRMATN 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 ofGeneral Counsel, 202Holtzm Office of General Counsel, provisions ofthe APA also provide for action thereby producing delay in n(202) 586-3410,.a 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 ofEnergy Efficiency requir, it may postpone the effective and Renewable Energy, (202) 586-0371, date ofaction taken by it, pending Issued inWashingon 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 ActingGenerolCounsel. eugene.margolishq.doe.gov mfinal rule would become part ofthe IFR Doc. 01-e975 Filed 4-18-01; 2:13 pm) SUPPLEMENTARY INFORMATION: Pursuant Code ofFederal Regulations as an wuo cooE uWI-I-P to section 325 ofthe 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 offinal rulemaking, setting forth 2006. That process involvesboth energy conservation standards for planning and capital expenditures. 

### 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 Efficiencyand Renewable Energy 10 CFR Part430 [Docket No.**~** RlN 1804-AA77 Energy Conservation Program for Consumer Products; Central Air Conditioners and Heat Pumps Energy Conservation Standards AGENCY: Office ofEnergy Efficiency and Renewable Energy. Departmentof Energy (DOE). AC11ON: Final rule; postponement of effective date andreconsideration. SUMMARY: In accordance withthe memorandum ofJanuary 20, 2001. from the Assistantto the President andChief ofStaff. entitled "RegulatoryReview 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) theeffective datt ofthe 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 offurther postponement ofthe effective date of the January 22. 2001, fina) rule pending the outcome ofpetitions bythe AirConditioning and Refrigeration Institute 

### (ARIl for reconsideration by DOE and for judiCial review by the United States Court ofAppeals for the Fourth Circuit. DATES: The effective date oftherule amending 10 CFR Pan 430 published at 66 

### FR 7170, January 22. 2001. is further postponed from April 23. 2001. pending the outcome ofpetitions 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 ofGeneral Counsel. (202) 586-3410. jill.holtzman@hq.doe,gov; Dr. Michael E. McCabe. Office ofEnergy Efficiency and Renewable Energy. (202) 586-0371. ME.McCabe@ee.doe.gov; orEugene Margolis. Office ofGeneral Counsel. (202) 586-9526. eugene.margoliS@hq.doe.gov SUPPLEMENTARY INFORMATION: Pursuant to section 325 ofthe Energy Policy and Conservation Act (42 U.S.C. 6295), on January 22. 2001. DOE published a notice offinal rulemaking. setting forth energy conservation standards for central airconditionersandcentral air DOE is ofthe viewthat

### ARI has raised conditioninsheatpumpsthat Branot IOJD8 substantial questions about the 

### yet effective and

### will not

### be enforceable lepllUStaiDabllity oftheJanuary 22. against manufacturersuntil January 23, 2001, 

### final rule. Consistent with 2006 (66 FR 7170). Theexisting Executive Order 12866and standards require a Seasonal 

### Energy consultations with the Office of Efficiency Rating (SEER) of 10for split Management andBudget.DOE intends systems witha correspondingHeating 

### withinthenext 80days to issuea SystemPerformance Rating (HSPF) of further notice ofproposedrulemakingto B.B anda SEER of9.'1 for .iBgle package revilethe standard levels set out inthe systems witha correspondingHSPF of 6.6 (42 U.S.C. 6295(d)(1)). TheJanuary January 22, 2001, final rule and examine 22.2001. final rulewouldrequire a the ",'dentto 

### which

# c:urrent minimum SEER of 13 for all systems witha '

### ~**en~** effiCIency levels.

### are to correspondingHSPFof7.'1. be mcreased m 2006. In that notice.

The EFFECTIVE DATE line oftheJanuary DOEintends topropose a 12 SEER with 22.2001. notice of

### final rulemaking 

### set 

### a corresponding 7.4 HSPF. DOE will forth February 21, 2001, as theeffective also iBvite public comment on its date for thepurpose of

### modifying Part explanation ofthe statutory authorityto 430 ofChapter Uoftitle 10oftheCode 

### make 

### such a proposal upon ofFederalRegulations, OnFebruary 2, reconsideration. During the pendency of 2001, pursuantto PresidentBush's ARI's petition forjudicialreview and Regulatory Review Plan. OOE published therelated petitionfor administrative a final rule postponingthe effective date reconsideration,justicerequires that from February 21.2001, to April 23, OOE postponetheeffective date ofthe 2001 (66 

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

Subsequently, ARt petitioned DOE for avoid imposins on manufacturers an reconsideration ofthe January 22. 2001, obligationto undertake plannins and fmal rule. and a group ofenvironmental capital expenditures to come into advocacy organizations haveresponded compliance by January.23. 2006. with a with a statement in oppositionto ruleDOE 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 isexempt from notice increase oftheminimum required and commentproceduresbased on the energy efficiency levels intheexistins good cause exceptions in 5 U.S.C. standards to a SEER of12 witha 553(b)(B) and 553(d)(3). Seeking public corresponding HSPF of7.3. However. comment and delayingtheeffect of ARt contends that DOE unfairly and today's action 

### are impracticable. erroneously raised the standard levels unnecessary, and contrarytothe public by 30 percent above the existins interest for several reasons. standards to a SEER of 13 with a Postponement ofthe imminent effective corresponding HSPF of7.7. OnMarch date ofApril 23. 2001. avoids confusion 19.2001.ARt also petitionedthe United among manufacturers as to whether to StatesCourt ofAppeals for the Fourth begin the process ofcoming into Circuit for judicialreview ofthe final compliance, Itavoids expenditures by rule. manufacturers inreliance on a rule with

Underthe informal rulemaking respect to which there is a significant provisions ofthe Administrative likelihood ofmodification. It also Procedure Act (MA). an agency by rule facilitates reconsideration ofa final rule may alterthe "effective date" ofa that, ifallowed to takeeffect. might well previously published final rule (5 U.S.C. 

### result in a court orderremanding the 551(4).551(5). 553}. Thejudicial review rule under instructions for further provisions oftheAPA 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 thatjustice so savings. requires. it may postponetheeffective date ofaction taken by it. pending Iuued inWashington. DC on Aprill8. judicialreview

...." (5 U.S.C. 105). 2001. Once theeffective date passes.the Eric 

### J. F)'Bi. standards set out intheJanuary 22. 2001 ActingGenerolCounsel. final rule would becomepart ofthe 

### IFR Doc. 01-9975 Filed 4-18-01; 2:13 pm) Code ofFederalRegulations as an effective final rule. and manufacturers wouldhave to begin the

### process of cominsinto compliance by January 23. 2006. Thatprocess involvesboth planning andcapital expenditures.

## EE-RM/STD-98-440 ,. /

EXHIBIT B 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 publiccomment on this temporary delay would have been 2.Appendix Ito subpart Bofpart 430 Offce of Energy Efficency and impractical. as well as contrary to the isamended in the first sentence ofthe 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 Prt430 regulations. The imminence ofthe itsplace "April 13. 2001". effective date is also goodcause 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. (FRDoc. 01-2884 Filed 2-1-01; 8:45 am] Consumer Products; CentralAir Spacr Abraham saLU coDS1S.I-0P Conditioners and Heat Pumps Energy 

### En Conservation Standardsn-.,--. ----- __-------------Conservation Standards lFRDoc. 01-2886 Filed 2-1-01; a:45 am] DEPARTMENT OF ENERGY AGENCY: Department ofEnergy (DOE). m. eoo Sahm-P ACTION: Final rule; delay ofeffective 

### Office ofEnergy Efficiency and date. Renewable Energy DEPARTMENT OF ENERGY SUMMARY: In accordance with the 

### 10 CFR Part430 memorandum ofJanuary 20, 2001, from Office of Energy Efficiency and the Assistant tothe President and Chief Renewable Energy [Docket No. EE-RM-07-400] ofStaff,entitled "Regulatory Review 

### RIN 1904-AA76 Plan," published in the Federal Register 10CFR Part 431 on January 24, 2001 (66FR 7702), this [Docket No.EE-RMiSTD-0-100] Energy Conservation Prcgrm for action temporarily delays for 60 days 

### Consumer Products; Enery the effective date ofthe rule entitled RN 1904AB06 Conservation Standards fm Water "Energy Conservation Program for Heaters Consumer Products Central Air Energy Efficiency Program for Consumer Products; Central Air AGENCY: Department ofEnergy (DOE). Conditioners and Heat Pumps Energy C mercil and ndustral Equipment ACTION: Final rule; notice ofreiew. Conservation Standards" published in Efficiency Standards for Commercial

_ _ACT__N= Final rule; notice of review. d I esro January22 Heating, Air Conditioning and Water the Federal Register on January 22, Heatng Equipment SUMMARY: The effective date ofthe final 001 (66 FR 7170).Heating Equpment rule titled "Energy Conservation DATES: The effective date ofthe rule AGENCY: Department of Energy (DOE). Program for Consumer Products; Energy amending 10 CFR part 430 published in ACTION: Final rule; delay ofeffective Conservation Standards for Water the Federal Register at 66 FR 7170 on date. Heaters" (66 FR 4474, January 17, 2001) January 22, 2001, isdelayed 60 days, is January 20, 2004. Consistent with the from February 21, 2001, until April 23, SUMARY: In accordance with the memorandum ofJanuary 20, 2001, from 2001. memorandum ofJanuary 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, ofStaff, 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 ofthe 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 ofthe 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 ofprocedure under 5 U.S.C. section DATES: The effective date ofthe 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 ofthis aion withou the Federal Register at 66 FR 3336 on Michael D. Whatley, (202) 586-3410, oppo forpublic 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. FO R FURTHER INFORMATION CONTACT: (202)586-7432.section 553((B) and 553(d)3. se Michael D. Whatley. (202) 586-3410. (202) 586--7432, public commentis impracticable, francine.pinto@hq.doe.gov;or, Eugene publiccomment imracch publicmichael.whatley~hq.doe.gov; Cyrus H. Margolis, (202) 586-9526, unnecessary and contrary to the public Naseri. (202) 586-9138. eugene.margolishq.do.gov. interest. Thetemporary 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 ofneweugene.margolishq.doe.gov. Spencer Abraham, regulations, consistent with the SUPPLEMENTARY INFORMATION: To the Secretaryof 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 ofJanuary 20, 2001. to this action, it is exempt from notice BILLNGCODE aso-O-p Given the imminence ofthe effective and comment because it constitutes a 

### EE-RM/STD-98-440 

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Federal Register/Vol. 

### 66. No. 

### 23/Friday. February 2. 2001/Rules 

### and Regulations 

### 8745 Appeadix

## J[Ameaded]

2. Appendix

## Jto subpart B ofpart430 isamended in the first sentence ofthe introductory paragraph byremoving the date "February 12. 200t" andaddingin its place "April 13. 200t".

luued inWuhiDaton.D.C. em Jauuary 2B. 2001. SpeD£8I'Abnaham. Secretoryof Energy. [FR Doc. 01-2884 Filed 2-1-01; 8:45 am) IIJI.UtIG CODE .-01"'" DEPARTMENT OF ENERGY Office 

### of Energy Efficiencyand Renewable Energy 10CFR Part430 [Dock8t No.**E~M-97** __ )] RIN 1904-AA78 Energy Conservation Pre'gram**~or** Consumer Products; Enerr.'Y Conservation Standards

# '01 Water Heaters AGENCY: Department ofEnergy (DOE). ACTION: Final rule; notice ofreview. SUMMARY: Theeffective date ofthe final rule titled "EnergyConservation 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 ofStaff. entitled "RegulatoryReview Plan" (66 FR 7702. January 24, 2001). DOE today announces that contemporaneous with the review of otherrecently published final regulations it will be reviewing this final rule to determine whether further actions are warranted. DATES: The effective date oftherule 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 inWashington. D.C. on January 29. 2001. SpencerAbraham. Secretaryof Energy. [FR Doc. 01-2885 Filed 2-1-01; 8:45 am) BlLUHG CODE _...,. DEPARTMENT OF ENERGY OffIce

### of Energy Efficiency

### and Renewable Energy 10CFR Part430 (DocIciM No. EE-AII-87-t40J RlN 11CM-AA77 Energy Conservation Programfor Consumer

### Products; Central Air Conditioners and Heat 

### Pumps Energy Conservation Standards AGENCY: DepartmentofEnergy (DOE). ACT10N: Final rule; delay ofeffective date. SUMMARY: In accordance withthe memorandumofJanuuy 20. 2001. from theAssistant tothe President and Chief ofStaff. entitled "RegulatoryReview Plan,"publishedin

### the FederalRegister onJanuary 24. 2001 (66 FR 7702). this actiontemporarily delays for 60 days the effective date oftheruleentitled "EnergyConservation 

### Program for ConsumerProducts; Central Air Conditioners and Heat Pumps Energy Conservation Standards"published in the FederalRegister onJanuary 22. 200t (66 FR 7170). DATES: The effective date oftherule amending 10

### CFR part 430 published in theFederalltegiater at 66 FR 7t70 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 extentthat 5 U.S.C. section 553 applies to this action. it is exempt from notice and commentbecause itconstitutes a rule ofprocedure under 5 U.S.C. section 553(b)[A). Alternatively. DOE's implementation ofthis action without opportunity for public comment, effective immediately upon publication today in the Federal Register. is based onthe good cause exceptions in 5 U.S.C. section 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrarytothepublic interest. Thetemporary 6(kiay delay in effective date is necessary togive DOE officials the opportunity for further review and consideration ofnew regulations. consistent withthe Assistant tothePresident's memorandum ofJanuary 20. 2001. Given the imminence ofthe effective date. seekinspriorpubliccomment on 

### this temporary delaywouldhavebeen 

### impractical. aswell as contraryto the publicinterest inthe orderly promulgation and implementation of regulations. Theimminence ofthe effective date isalso good

### cause for making

### thisaction effective immediatelyupon publication.

Iuued 10 WuhiDaton.D.C. aDJanuary Z9. 2001. Spaac:erAbrabam. Sec:matyof Energy. (FRDoe. 01-2886 Filed 2-1-01; 8:45 am] IJIU.ING COOl!**~** DEPARTMENT OF ENERGY Office of

### Energy Efficiencyand Renewable Energy 10CFR Part431 [Docket No.**EE~MISTD-OO-100]** RlN 11CM-A806 IEnergy Efficiency Program for Commercial and Industrial Equipment; IEfficlency Standards for CommerCial Heating, Air Conditioning andWater HeatIng Equipment AGeNCY: Department ofEnergy (DOE). ACTION: Final rule; delay ofeffective date. SUMMARY: Inaccordance with the memorandum ofJanuary 20. 2001. from theAssistanttothe President and Chief ofStaff, entitled "RegulatoryReview Plan."published intheFederal Register onJanuary 24. 2001 (66 FIt 7702). this actiontemporarily delays for 60 days the effective date ofthe rule entitled "EnergyEfficiencyProgram for Commercial andIndustrial Equipment; Commercial Heating. AirConditioning and Water Heating Equipment" published in the FederalR.egister on January t2. 2001 (66 FR 3336). DAT!S: The effective date ofthe 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: Tothe extentthat 5 U.S.C. section 553 applies tothis action. itis exempt from notice and commentbecause it constitutes a

## EE-RMISTD-9-44 /

EXHIBIT C , ,



### • 

### EE-RM/STD-98-440

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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 · 

# . , 

### . ,



## The HonorableSpencerAbraham 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

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