From: Miller, William [mailto:wmiller@McCa rter.com]

Sent: Wednesday, December 03, 2014 7:50 AM

To: Cohen, Daniel

Cc: Cymbalsky, John Subject: RE: DOE Posting Practices

Dan: thanks for the prompt response. While we do not agree that adding data to a spreadsheet is not a
change to a spreadsheet t hat warrants notice to the public, we are pleased that DOE at least seems to agree that as to “substantive changes to the spreadsheets,” “it will make such changes clear in re

posting the spreadsheets.” The problem, of course, is that DOE is leaving itsel f the discretion to determine what is “substantive” and what is not (e.g., correction of a “bug”). That distinction was apparently the basis for not noticing the change which precipitated my December 1 email. We reject that distinction and urge that DOE reconsider its position; any change to a posted spreadsheet should be noticed to the public, with an explanation, which leaves the public, which is financing the entire
enterprise, free to determine whether the change is significant. Thank you for your c onsideration of this

response. Bud

From: Cohen, Daniel [ mailto:Daniel.Cohen@hq.doe.gov ]

Sent: Monday, December 01, 2014 9:10 PM

To: Miller, William

Cc: Cymbalsky, John Subject: RE: DOE Posting Practices



### Bud,

The revision you note below did not change any of the data in the spreadsheets. Rather, there was a program bug in the original spreadsheets. We recognized the error, and thought we had corrected it as the spreadsheets were released to the publi c. However, the bug remained. This error was brought to our attention by one of APGA’s analyst from the Gas Technology Institute (GTI), at the November 7 public meeting, and, as promised at the meeting, was fixed immediately. This fix did not change any data in the spreadsheet.

Below is the portion of the transcript that detailed the discussion on that issue.

“MR. LESLIE: This is in the I don’t know what to do about

-- this is Neil Leslie,

GTI. My version of this same spreadsheet has number ref all over the place in the rows 11 through 19 rather than the values you are showing in there. Is there a way to get that

taken care of?

MR. FRANCO: Of course, yes. I mean, it might be that the published version, there was accidentally one worksheet that wa s deleted which is the one that calculates. So this one we'll publish right away. Yeah, so you can have that version. Sorry about that, yeah. We thought we'd corrected that but we'll correct that right away.”

As with all of our rulemakings, our inten tions and our actions are designed to be as open and forthcoming as possible regarding the data we use and the decisions we reach. As you know, at the present time, the draft proposed rule concerning energy conservation

standards for non

- weatherized and m obile home gas furnaces remains under review at the

### Office of Management and Budget’s Office of Information and Regulatory Affairs

(OIRA). It is certainly possible that OIRA’s review could result in changes to the spreadsheets. Should that occur or should DOE on its own realize the need for some substantive change to the spreadsheets, DOE would make any such changes clear in re

posting the spreadsheets.

Dan

From: Miller, William [ mailto:wmiller@McCarter.com ]

Sent: Monday, December 01, 2014 8:49 AM

To: Cohen, Daniel

Cc: Cymbalsky, John Subject: DOE Posting Practices

Dan: it has come to our attention that DOE is revising posted materials with no notice to the
public either that a change has been made or what the change is. This practice, an example of which is provided below, is extremely prejudicial and harmful to those trying to understand the basis for DOE actions and needs to be corrected as soon as possible. DOE provided notice on
September 22, 2014, th at it was posting its preliminary draft life cycle spreadsheet in the remanded furnace proceeding at the following

site: http://www.regulations.gov/#!documentDet ail;D=EERE

- 2014

- BT

- STD

- 0031

- 0002 . Needless to say, interested parties like APGA have dedicated a lot of man

- hours attempting to analyze
and understand this spreadsheet. However, it turns out that sometime after September 22, DOE posted another (amended) s preadsheet at that site (see attached example pages), and it
did so with no notice to the public that this was occurring or what the change or changes

were. Thus, analysis of the original spreadsheet performed after the new spreadsheet was posted (wheneve r that was) focused on the wrong spreadsheet and potentially resulted in a
work product that cannot be used because it is no longer accurate. We learned of this no

- notice switch by pure happenstance, and while we now know that some “Summary Switching” dat a from the original spreadsheet has changed, we have no idea either why or what other data may
have changed. Trying to make that determination could take countless hours (which could then be overtaken by yet another unannounced posting). You may recall that APGA ran into this practice of re

- posting with no notice during the DFR proceeding (see APGA Jan. 13, 2014 Initial

Br. at 13

- 14), but we failed to appreciate that this was standard operating procedure for

DOE. This practice is intolerable from the st andpoint of interested members of the public
attempting to understand what and why DOE is proposing to do or not do something. We respectfully request that DOE immediately amend its practice such that whenever a revised document is posted, the public be g iven timely notice of the revised posting and informed as to

what the revisions are. APGA appreciates your prompt consideration of this request as well as a
response indicating whether DOE intends to heed this request. Bud

William T. Miller | Partner
McCARTER & ENGLISH, LLP

1015 15th Street, NW, 12th Floor | Washington DC, 20005

T: 202

- 753

- 3420
F: 202

- 354

- 4658 wmiller@mccarter.com | www.mccarter.com

BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC

### This email message from the law firm of McCarter & English, LLP is for the sole use of

the intended recipient(s) and may contain confidential and privileged information. Any

unauthor ized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. This email message from the law firm of McCarter & English, LLP is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email a nd destroy all copies of the original message.