Department of Energy

Washington, DC 20585

March 30, 2009

The Honorable Eric H. Holder, Jr.

Attorney General

United States Department ofJustice

Washington, D.C. 20530

Dear Mr. Attorney General:

Pursuant to the requirements for antitrust review under section 325(0)(2)(B)(i)(V)

ofthe Energy Policy and Conservation Act, as amended (EPCA) (42 U.S.C.

6295(0)(2)(B)(i)(V) and 42 U.S.c. 6316(a», I have enclosed for your

consideration a copy ofthe notice of proposed rulemaking (NOPR), in which the

U.S. Department of Energy (DOE) is proposing energy conservation standards for

certain types of commercial heating, air-conditioning, and water-heating

equipment. Specifically, DOE is proposing amended standards for commercial

packaged boilers and a new standard for water-cooled and evaporatively-cooled

commercial packaged air conditioners and heat pumps with a cooling capacity at

or above 240,000 Btulh and less than 760,000 Btu/h, at efficiency levels

corresponding to those in the latest version ofthe relevant industry consensus

standard. I have also enclosed a copy ofthe Technical Support Document (TSD),

which summarize DOE's technical analyses performed in support ofthe NOPR

for commercial packaged boilers. All documents are provided on the enclosed

CD-ROM.

DOE considers any lessening of competition that is likely to result from

standards. The Attorney General must determine the impact, if any, of any

lessening of competition likely to result from a proposed standard. (42 U.S.C.

6295(0)(2)(B)(i)(V); 42 U.S.C. 6316(a» The Attorney General shall make such

determination, in writing, and transmit it together with an analysis ofthe nature

and extent ofsuch impact. (42 U.S.C. 6295(0)(2)(B)(ii); 42 U.S.C. 6316(a»

DOE will publish the determination and accompanying analysis in the Federal

Register along with the final rule.

DOE has issued this NOPR under Part A-I ofTitle III ofEPCA, which addresses

the energy efficiency of certain types of commercial and industrial equipment.

(42 U.S.C. 6291-6309; 6311-6317) EPCA, as amended, established Federal

energy conservation standards that generally correspond to the levels in the

American Society ofHeating, Refrigerating and Air-Conditioning Engineers, Inc.

(ASHRAE) and Illuminating Engineering Society ofNorth America (IESNA)

*Printed wilh soy mk on recycled paper

EERE-2008-BT-STD-0013 COMMENT 14
Standard 90.1 (ASHRAE Standard 90.1), as in effect on October 24, 1992

(ASHRAE Standard 90.1-1992), for each type of covered equipment listed in

section 342(a) of EPCA. 1 (42 U.S.C. 6313(a» For each type of covered

equipment, EPCA directs that if ASHRAE Standard 90.1 is amended, DOE must

publish a final rule adopting amended standards at the new efficiency levels in

ASHRAE Standard 90.1 within 18 months, unless clear and convincing evidence

supports a determination that adoption of a more-stringent efficiency level as a

national standard would produce significant additional energy savings and be

technologically feasible and economically justified (in which case, a final rule

must be published within 30 months). (42 U.S.C. 6313(a)(6)(A)(ii») On January

9,2008, ASHRAE's Board of Directors gave final approval to ASHRAE

Standard 90.1-20072

, which ASHRAE publicly released on January 10,2008,

thereby triggering DOE's rulemaking responsibilities under EPCA.

As an initial matter, this NOPR determines the scope of coverage for the

rulemaking by determining which changes in ASHRAE Standard 90.1-2007

actually result in an increased efficiency level, as compared to the existing energy

conservation standard.3 This NOPR also discusses the economic and energy

savings analyses performed for those equipment classes, where the efficiency

levels in ASHRAE Standard 90.1-2007 were increased and there is equipment

currently available on the market. In the NOPR, DOE also explains its tentative

conclusion that more-stringent efficiency levels than those set forth in ASHRAE

Standard 90.1-2007 for commercial packaged boilers are not appropriate in

consideration ofthe relevant statutory criteria. Based on the results ofits

analyses, DOE is proposing to adopt the efficiency levels in ASHRAE Standard

90.1-2007 for commercial packaged boilers. (DOE is also proposing

modifications to DOE's test procedure for commercial packaged boilers, which

will add a test methodology for the new metric, to coincide with the proposed

energy conservation standards for this equipment.)

DOE is also proposing a new energy conservation standard for water-cooled and

evaporatively-cooled commercial package air conditioners and heat pumps with a

cooling capacity at or above 240,000 Btulh and less than 760,000 Btu/h, which

would adopt the efficiency levels in ASHRAE Standard 90.1-2007. Because

there are currently no products on the market in this product class, it was not

possible to do the economic and technical analyses necessary to consider morestringent standard levels.

I Specifically, these products include small, large, and very large commercial package airconditioning and heating equipment, packaged terminal air conditioners (PTACs) and packaged

terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, storage water heaters,

instantaneous water heaters, and unfired hot water storage tanks. (42 U.S.C. 63 13(a))

2 It is noted that in its latest amendments, ASHRAE modified efficiency levels for some, but not

all, ofthe numerous products covered under ASHRAE Standard 90.1. Consequently, DOE is

limited its analyses to only that subset of equipment.

3 It is noted that DOE separately considered and set amended energy conservation standards for

PTACs and PTHPs in a final rule published October 7,2008. 73 FR 58772.

EERE-2008-BT-STD-0013 COMMENT 14
In terms ofthe products covered by this rulemaking, there are currently national

energy conservation standards for commercial packaged boilers, but not for

water-cooled and evaporatively-cooled commercial package air conditioners and

heat pumps with a cooling capacity at or above 240,000 Btu/h and less than

760,000 Btu/h. (10 CFR 431.87)

We request that you complete your review ofthis NOPR not later than 60 days

from receipt ofthis letter. Thank you for your attention to this matter. If

members of your staff have any questions, they may contact Eric Stas in my

office. His telephone number is (202) 586-5827.

Sincerely,

-~~ Eric 1. Fygi

Acting General Counsel

Enclosures (2)

cc: Angela Hughes

EERE-2008-BT-STD-0013 COMMENT 14