### 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

DearMr. 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», Ihave enclosed for your consideration a copy ofthe notice ofproposedrulemaking (NOPR), in which the U.S. Department ofEnergy (DOE) is proposing energy conservation standards for certaintypes ofcommercial 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 andheatpumps 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 latestversion ofthe relevant industry consensus standard. Ihave also enclosed a copy ofthe Technical SupportDocument (TSD), which summarize DOE's technical analyses performed in support oftheNOPR for commercial packaged boilers. All documents are provided on the enclosed CD-ROM.

DOE considers any lessening ofcompetitionthat is likely to result from standards. The Attorney General must determine the impact, ifany, ofany lessening ofcompetition likely to result from aproposed 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 ittogetherwith an analysis ofthe nature and extentofsuch 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 issuedthis NOPR underPartA-I ofTitle 

### III ofEPCA, which addresses the energy efficiency ofcertain types ofcommercial 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) 

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Printed wilh soy mk on recycled paperStandard 90.1 (ASHRAE Standard 90.1), as in effect on October 24, 1992 (ASHRAE Standard 90.1-1992), for each type ofcovered equipment listed in section 342(a) ofEPCA. 1 (42 U.S.C. 6313(a» For each type ofcovered equipment, EPCA directs that ifASHRAE 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 ofamore-stringent efficiency level as a national standard would produce significant additional energy savings and be technologically feasible and economicallyjustified (in which case, a final rule
must be published within 30 months). (42 U.S.C. 6313(a)(6)(A)(ii») OnJanuary 9,2008, ASHRAE's Board ofDirectors 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 ofcoverage 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 onthe results ofits analyses, DOE is proposing to adoptthe 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 airconditioners and heatpumps with a cooling capacity ator above 240,000 Btulh and less than 760,000 Btu/h, which would adoptthe efficiency levels in ASHRAE Standard 90.1-2007. Because there are currently no products on the market inthis product class, itwas 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, packagedterminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, storage waterheaters, instantaneous waterheaters, and unfired hotwater 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 underASHRAE Standard 90.1. Consequently, DOE is limited its analyses to only that subsetofequipment.

3 It is noted that DOE separately considered and set amended energy conservation standards for PTACs and PTHPs in a final rule published October7,2008. 73 FR 58772.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 heatpumps with a cooling capacity at or above 240,000 Btu/h and less than 760,000 Btu/h. (10 CFR431.87)

We requestthat you complete your review ofthis NOPRnot laterthan 60 days from receipt ofthis letter. Thank you for your attention to this matter. If members ofyour staffhave any questions, they may contactEric Stas in my office. His telephone number is (202) 586-5827.

Sincerely,

# -~~ Eric 

### 1. Fygi Acting General Counsel

Enclosures (2)

cc: Angela Hughes