From: Cohen, Daniel 

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 public. 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 was 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 intentions 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 nonweatherized and mobile 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, 

that it was posting its preliminary draft life cycle spreadsheet in the remanded furnace proceeding at the 

following site: http://www.regulations.gov/#!documentDetail;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) spreadsheet 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 (whenever 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” data 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 standpoint 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 

given 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

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wmiller@mccarter.com | www.mccarter.com

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