July 30, Re: Petition for Reconsideration of DOE Rule for Walk-In Coolers and Freezers, Docket No. EERE-2010-BT-STD-0003

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1 The Honorable Ernest Moniz Secretary of Energy U.S. Department of Energy Forrestal Building 1000 Independence Avenue, S.W. Washington, D.C Re: Petition for Reconsideration of DOE Rule for Walk-In Coolers and Freezers, Docket No. EERE-2010-BT-STD-0003 Dear Secretary Moniz: The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 1 respectfully requests that the Department of Energy (DOE) reconsider the rule for minimum energy efficiency standards for walk-in coolers and freezers published in the Federal Register on June 3, Fed. Reg (June 3, 2014) (WICF Final Rule). AHRI seeks reconsideration of the WICF Final Rule to redress serious errors made in setting the standards for some products. Specifically, the WICF Final Rule resulted in certain standards being set at levels above those that DOE determined are maximum technically feasible, thereby violating statutory requirements. In addition, there are other serious problems with 1 AHRI is the trade association representing manufacturers of air conditioning, heating, commercial refrigeration, and water heating equipment. An internationally recognized advocate for the industry, AHRI develops standards for and certifies the performance of many of these products. AHRI s 320 member companies manufacture quality, efficient, and innovative residential and commercial air conditioning, space heating, water heating, and commercial refrigeration equipment and components for sale in North America and around the world. AHRI represents many manufacturers that are small and medium-sized businesses producing niche products. AHRI companies employ approximately 130,000 men and women in the United States. The total value of member shipments by these companies is over $20 billion annually.

2 Page 2 DOE s calculations, as well as several failures to comply with the notice and comment requirements of the Administrative Procedure Act. As a result of these errors, the WIFC Final Rule is ultra vires, premised on factual mistakes, and afflicted with procedural error. These and other factors contributed to adoption of a rule that is not technically feasible and economically justified, contrary to the requirements of the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6295(o)(2)(A). The standards in the final rule would have a severe impact on consumers and employment levels, as well as on industry and competition. The changes in the standards made from the Notice of Proposed Rule Making (NOPR) to the final rule will result in the elimination of certain products from the market with resulting adverse effects on consumer choice and utility. These negative effects would ripple throughout the supply chain. Small businesses would be particularly hard-hit. By seeking DOE's reconsideration of the WICF Final Rule, AHRI does not seek to avoid any increase in the efficiency standard levels. AHRI has a long history of supporting energy efficiency and has long worked closely with DOE to ensure that DOE s rulemaking process was open, transparent, and responsive to all interested parties. AHRI and its members have worked diligently over the last fifty years to improve the energy efficiency of HVACR equipment. It is only out of concern for the extreme and unjustifiable impact of the revised standards, stemming from the errors and misinformed judgments made in the rulemaking, that AHRI respectfully seeks reconsideration of the WICF Final Rule. I. BACKGROUND AND SUMMARY A brief review of the regulatory background of the WICF Final Rule will help to explain the errors and misinformed judgments made in the rulemaking.

3 Page 3 On January 14, 2009, DOE published a Framework Document initiating the rulemaking process for amended efficiency standards for walk-in coolers and freezers. 74 Fed. Reg. 1,992 (Jan. 14, 2009). After issuance of the Framework Document, DOE published a Preliminary Analysis in April Fed. Reg. 19,297 (April 14, 2010). More than three years later, DOE published a Notice of Proposed Rulemaking on September 11, Fed. Reg. 55,781 (Sept. 11, 2013). Nine months after that, DOE published the Final Rule. 79 Fed. Reg. 32,049 (June 3, 2014). Concurrently with the efficiency standards rulemaking, DOE revised and expanded existing regulations regarding the use of alternative efficiency determination methods (AEDM) and alternate rating methods (ARM) as alternatives to testing for the purpose of certifying compliance. DOE also revised the test procedures applicable to the testing and certification of the walk-in cooler and freezer energy efficiency standards. DOE issued a Supplemental Notice of Proposed Rulemaking revising the test procedures on February 20, 2014, 79 Fed. Reg. 9,817 (Feb. 20, 2014), and at the request of stakeholders extended the comment period. 79 Fed. Reg. 19,844 (April 10, 2014). The final rule for the test procedure for WICF was issued on May 13, 2014 (79 Fed. Reg. 27,387 (May 13, 2014), only 21 days prior to the publication of the final WICF energy efficiency final rule on June 3, Fed. Reg. 32,049 (June 3, 2014). In the WICF Final Rule, DOE applied the test procedure that was finalized 21 days earlier. As a result, DOE failed to follow appropriate rulemaking procedure, with dire consequences. The application of the revised test procedure resulted in injection of entirely new analyses into the record, including over 200 additional pages to DOE s Technical Support Document (TSD) as to which there was no opportunity for review and comment. Because DOE made analytical changes after the comment period for the NOPR was closed, DOE denied

4 Page 4 stakeholders sufficient notice and opportunity to comment on the extensive and material changes in the analysis and efficiency levels, including levels higher than those proposed in the NOPR, despite substantial concerns raised by stakeholders regarding the NOPR levels even before the revised test procedure was published. These actions by DOE are clearly inconsistent with principles of fundamental fairness and contrary to the letter and intent of EPCA and DOE s own Process Improvements Rule (10 C.F.R. Subpart C, Appendix A) as described in more detail below. The WICF Final Rule switched approaches in key respects, set efficiency levels for some products above standards that were technologically feasible, contained computational errors, and was arbitrary and capricious in its determination concerning the weighing of burdens and benefits. The WICF Final Rule is thus contrary to the tenets of appropriate rulemaking. If proper rulemaking procedures had been followed, including the provision of sufficient time to regulated industries to review and comment on the WIFC Final Rule, the substantive problems with DOE's revised approach in connection with how the final substantive standards rule interacts with the final test procedure could have been pointed out in time for the agency to address those issues. Had it done so, AHRI believes that DOE may well have promulgated a different final rule as a result. DOE should thus reconsider this rule to bring it in line with both a full and fair rulemaking record and its own policies. An agency may reconsider a standard on the basis of serious uncertainties. 2 These considerations are particularly relevant here, as under 2 Motor Vehicle Mfgrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, (1983). See also Texas E. Transmission Corp. v. FERC, 102 F.2d 174, 179 n.6 (5th Cir. 1996) ( the Commission s policy toward the MFV rate design was in a state of flux at that time and there was a possibility that the Commission would reconsider its decision on rehearing, ) (quoting 73 F.E.R.C. 61,077); Mail Order Ass n of Am. v. U.S. Postal Serv., 2 F.3d 408 (D.C. Cir. 1993) (in light of uncertainties in postal rates since 1991, the Governors of the Postal Service were seeking Commission reconsideration of the base rate of 29 cents until 1992 ).

5 Page 5 EPCA, DOE cannot adopt an appliance efficiency standard unless the standard is technically feasible and economically justified. 42 U.S.C. 6295(o)(2)(A). II. DISCUSSION A. DOE Possesses the Authority to Reconsider the WICF Final Rule. The Administrative Procedure Act (APA), 5 U.S.C. 553, provides that agencies must give interested persons an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. See, e.g., Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 96 (D.C.Cir.2002) ( failure to comply with notice and comment cannot be considered harmless if there is any uncertainty at all as to the effect of that failure. ); American Relay League, Inc. v. FCC, 524 F.3d 227, (D.C. Cir. 2008) ( Enforcing the APA s notice and comment requirements ensures that an agency does not fail[ ] to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary so that a genuine interchange occurs rather than allow[ing] an agency to play hunt the peanut with technical information, hiding or disguising the information that it employs. ), quoting Connecticut Light and Power Co. v. NRC, 673 F.2d 525, (D.C. Cir. 1982). The APA also requires that each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. (5 U.S.C. 553(e)). This right is necessary to protect interested parties from rulemakings that may be in error, that exceed statutory authority, or are otherwise invalid. AHRI recognizes that the Second Circuit has held that the inherent power agencies possess to reconsider their rules is trumped by the ECPA antibacksliding provision. See NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) ( Consequently, and in harmony with this Congressional regulatory scheme, section 325(o)(1) must be read to restrict DOE s subsequent discretionary ability to weaken that standard at any point thereafter. ) (emphasis added). Error

6 Page 6 correction is not equivalent to backsliding or weakening a standard, however. Nor is error correction a discretionary change in policy direction; rather, it is a change designed to eliminate a mistakes and thus to bring reality in line with an agency s actual goals in promulgating the rule at issue. The intent of the antibacksliding provision is to prevent pure policy changes at DOE (akin to the change in policy that occurred if one took the pre-1977 period as the agency s baseline and compared that to a changed policy in 1981 a change that was allowed in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), which authorized EPA s use of the emissions bubble concept under the Clean Air Act). Compare Abraham, 355 F.3d at 197 (noting that what is inconceivable would be that Congress intended to allow such unfettered agency discretion to amend standards, given the appliance program s goal of steadily increasing the energy efficiency of covered products ) (emphasis added). Error correction allows neither unfettered agency discretion to change policy course and weaken standards, nor does it threaten a steady march toward standards of increased stringency over time. The purpose of the backsliding provision is clearly not to lock DOE into its errors and tie its hands to prevent it from self-correcting errors it can agree were made. For similar reasons, the antibacksliding provision cannot be interpreted to deny the rights provided by the APA regarding rules that are issued in violation of the APA, and that are based on efficiency levels that exceed DOE s statutory authority. Finally DOE s past expressions of agreement with the Abraham decision, as far as we are aware, do not appear to extend to mere error correction. (If that is not the case, DOE can, of course, inform us that they view any error correction that has the effect of weakening standards as ultra vires under EPCA and AHRI can then proceed accordingly.)

7 Page 7 B. DOE Failed to Provide Interested Persons Adequate Opportunity to Participate in the Rulemaking in Violation of the Administrative Procedure Act and DOE s Process Improvement Rule. DOE s issuance of the WICF Final Rule 21 days after the applicable test procedure was finalized resulted in such extensive and materially significant changes from the NOPR that it violated the APA s requirement that agencies must give interested persons an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. Between the NOPR and the Final Rule, DOE prepared substantial new analyses based upon the revised test procedure published less than a month before, which were put into the record upon publication of the final rule and final Technical Support Document (TSD). The final rule TSD added over 200 pages of analysis that was made publicly available to stakeholders only upon publication of the final rule, well after the comment period on the NOPR was closed. As discussed in more detail below, from the NOPR to the Final Rule DOE made multiple and significant changes, including eliminating half of the Trial Standard Levels (TSLs) proposed in the NOPR, and adopted Final Rule efficiency standards based upon a TSL that DOE concluded was not economically justified in its NOPR analysis. Additionally, DOE s actions violated its own Process Improvements Rule (PIR) 3, which provides that DOE will attempt to identify any necessary modifications to established test procedures when initiating the standards development process, and Final, modified test procedures will be issued prior to the NOPR on proposed standards. PIR 7(c). The purpose of DOE s timing requirements is to ensure that DOE s analysis regarding the technical feasibility and economic justification of proposed standards is based upon the test procedures that will be used for testing, certification and enforcement of those standards. Only through the application 3 10 C.F.R. Pt. 430, Subpt. C, App. A.

8 Page 8 of these finalized test procedures can DOE and stakeholders accurately assess the impact of the proposed efficiency standards, and have a meaningful opportunity to comment. Under EPCA, 42 U.S.C. 6291(6), an energy conservation standard is determined in accordance with the test procedures prescribed under [id. 6293]. Thus, test procedures are fundamental to the issuance of a DOE standard and a DOE proposed rule based upon one test procedure cannot be the basis for a final rule premised upon an entirely different test procedure. Fundamental fairness requires an opportunity to review, analyze, and comment thoroughly on substantial new analyses. Moreover, the thrust of the PIR is that analytical approaches will be worked through in a collaborative way with all interested parties early in the process, not presented at the last minute. The PIR states that [i]f major changes to the analyses are required at this stage, interested parties and experts will be given an opportunity to review the revised analyses. PIR 4(e)(3). That did not happen in this case. AHRI supported DOE s revisions to the test procedure, and continues to do so. However, AHRI and other stakeholders should have been provided an opportunity to be informed and comment upon the drastic changes the revised test procedure would have on the efficiency standards and supporting analysis provided in the WICF NOPR - before DOE issued the Final Rule. C. DOE Adopted Efficiency Standards in the Final Rule Based Upon Trial Standard Levels It Found Were Not Economically Justified in the NOPR. In the Final Rule, DOE stated that it maintained the same methodology in the final rule as it did in the NOPR for mapping efficiency levels to trial standard levels (TSL)s, but that the number of TSLs had changed for the Final Rule. While there were six TSLs in the NOPR, DOE revised its analysis to three TSLs in the Final Rule, and noted the NOPR TSLs 4 through 6 are equivalent to the final rule TSLs 1 through Fed. Reg. 32,050, 32,099 (June 3, 2014). DOE

9 Page 9 went on to adopt standards at (final) TSL 2, finding that they offered the maximum improvement in efficiency that is technologically feasible and economically justified and will result in significant energy savings. Id. at DOE s adoption of TSL 2 in the Final Rule directly contradicts its findings in the NOPR. In the NOPR, DOE concluded that after carefully considering the analysis and weighing the burdens and benefits, it found that the benefits to the Nation at [NOPR] TSL 5 [equivalent to final TSL 2] (i.e., energy savings and emissions reductions (including environmental benefits)) are too low compared to the burdens and that Because the burdens of TSL 5 outweigh the benefits, TSL 5 is not economically justified. Therefore, DOE is not proposing TSL Fed. Reg. 55,782, 55,874 (Sept. 11, 2013). DOE also explicitly noted the negative impact that the NOPR TSL 5 would have on small businesses, finding the standard would place excessive burdens on manufacturers, including small manufacturers, of walk-in refrigeration, panels, and doors. Id. at DOE s WICF Final Rule thus contains an inherent and fatal flaw - it states that the NOPR TSLs 4 through 6 are equivalent to the final rule TSLs 1 through 3, meaning that the NOPR TSL 5 is the Final Rule TSL 2. DOE adopts TSL 2 in the Final Rule even though it concluded NOPR TSL 5 was not economically justified and would place excessive burdens on manufacturers, particularly small business. As a result, the WICF Final Rule violates EPCA s requirement that a new or amended standard be economically justified. 42 U.S.C. 6295(o)(2)(A). DOE s adoption of TSL 2 in the Final Rule after DOE explicitly rejected TSL 5 in the NOPR also violated APA procedural requirements, as DOE failed to provide any notice as to the fact that such a standard might be adopted. Thus, stakeholders were denied an opportunity to comment on the NOPR TSL 5 (Final Rule TSL 2) that was ultimately adopted in the WICF Final Rule.

10 Page 10 D. The Efficiency Standards in the Final Rule for Multiple Product Classes Are Set Above Maximum Technologically Feasible Levels and are Calculated Incorrectly. The WICF Final Rule sets forth standards for ten equipment classes for refrigeration systems of walk-in coolers and freezers. These classes are differentiated by condensing type (dedicated condensing or multiplex condensing) and operating temperature (medium or low). Dedicated condensing systems are further divided into classes by location of the condensing unit (indoor or outdoor) and size (small and large). In its engineering analysis for dedicated condensing classes, DOE analyzed units with different compressor types; and for multiplex condensing classes, DOE also analyzed units with different fin spacing and different numbers of fans. Within each class, DOE also analyzed one or more sizes (based upon capacity). The engineering analysis for refrigeration systems is based on a variety of compressor design options, analyzed at a number of capacities for each equipment class. These are referred to as analysis points. DOE chose these various analysis points within each class in order to analyze efficiency for various combinations in the engineering analysis of these factors - compressor type, fin spacing, etc. - in the engineering analysis. From these analysis points DOE determined maximum technologically feasible (max-tech) levels. DOE acknowledged on page 32,100 of the Final Rule that for refrigeration systems, TSL 3, which is the max-tech level determined by DOE, is the same as TSL 2. As a result, because DOE adopted TSL 2, it adopted the max-tech levels for all refrigeration classes. In the Final Rule TSD, DOE explained that for each class of refrigeration systems, the proposed TSLs are expressed in the form of an equation for the minimum efficiency (AWEF) that the system must meet. For most classes, the proposed standard is expressed as a single number because DOE observed that the system efficiency did not correlate with capacity. For the

11 Page 11 small-capacity (less than 9,000 Btu/h) Dedicated Condensing, Low Temperature classes; however, DOE observed that achievable system efficiency increased with increasing capacity and so expressed the standard level as a linear equation. The Final Rule TSD stated that the linear equation for each TSL for each small-capacity equipment class was constructed using two criteria: (1) to pass through the small-system capacity points and (2) be continuous with the minimum AWEF for the large capacity systems at the threshold capacity of 9,000 Btu/h. DOE used this equation to derive the efficiency levels in the WICF Final Rule. However, DOE s own data as set forth in the TSD and engineering spreadsheets illustrates that for the low temperature, dedicated condensing classes, DOE s equation did not meet this criteria, and as a result the efficiency levels set are higher than max-tech, in violation of EPCA s requirements. In Figure of the Final Rule TSD, DOE depicts the AWEF equation lines for Dedicated Condensing, Low Temperature - Outdoor (DC.L.O) systems, and the image provided appears to show the equation used to set minimum AWEF for systems less than 9,000 Btu/h (2.3 x 10-4 x Q +2.73) as linear - passing directly through two analysis points. The data provided in DOE s engineering spreadsheets; however, illustrates that this is not correct. For example, the analysis point for 6,000 Btu/h equipment with scroll compressors at Efficiency Level (EL) 10 is given to be 3.92; however, using the AWEF equation provided in the Final Rule would require manufacturers to meet an AWEF of This error is also seen for the Dedicated Condensing, Low Temperature Indoor (DC.L.I) class, where at 6,000 Btu/h the equation yields an AWEF of 2.69, while the engineering analysis AWEF is Additionally, using DOE s stated method, the AWEF should level off at 2.83 AWEF, the level calculated in the engineering analysis. This does not match the AWEF calculated by using the equation at 9,000 Btu/h (2.86 AWEF) and this is not a rounding issue.

12 Page 12 DOE s flawed calculations resulted in final rule efficiency standards that are higher than max-tech for Dedicated Condensing, Low Temperature - Indoor (DC.L.I), and Dedicated Condensing, Low Temperature - Outdoor (DC.L.O) products. Additionally, DOE set final AWEFs for the Multiplex Condensing, Low Temperature (MC.L.N) class above max-tech as well. 1. Dedicated Condensing, Low Temperature - Indoor (DC.L.I) Had DOE followed its stated approach, which was to use a slope-intercept formula based on data in the engineering analysis spreadsheets, the Final Rule AWEF would have been 2.83 instead of 3.1 for Dedicated Condensing, Low Temperature - Indoor units (DC.L.I) greater than or equal to 9,000 Btu/h, and the correct linear equation for these units at less than 9,000 Btu/h should have been 6.00x The AWEF values in the table, below, come from the engineering analysis spreadsheet. AWEFs that have been calculated using the DOE engineering analysis that fail to reach the final rule levels are highlighted in yellow with red text in the table, below. Equipment Class Nominal Size (Btu/h) Compressor Technology TSL 2 EL AWEF Final Rule AWEF DC.L.I 6,000 SCR x10^-5xQ+2.33 <9,000 Btu/h DC.L.I 9,000 SCR ,000 Btu/h DC.L.I 54,000 SEM DOE s engineering spreadsheets determine the max-tech level for the DC.L.I class as 2.83 at 9,000 Btu/h, as shown in the chart above. However, the Final Rule established an AWEF of 3.1, which is higher than this maximum technologically feasible level of This results in the elimination of large capacity units below 54,000 Btu/h from the market. As a result the levels

13 Page 13 are neither technologically feasible, nor are they economically justified, as they will impact the utility and availability of products in the marketplace. 2. Dedicated Condensing, Low Temperature - Outdoor (DC.L.O) The AWEF levels for Dedicated Condensing, Low Temperature - Outdoor (DC.L.O) units are also erroneous. If DOE had followed its approach as stated in the Final Rule TSD, (a slope-intercept formula based on data in the engineering analysis spreadsheets), and selected the AWEF level that was technologically feasible for all capacities within the DC.L.O equipment class, the Final Rule AWEF would have been 4.36 instead of 4.79 for DC.L.O greater than or equal to 9,000 Btu/h. Additionally, had DOE followed its stated analysis, the AWEF equation for DC.L.O. units less than 9,000 Btu/h would have been 1.47x The AWEF values in the table, below, are DOE s calculations from the engineering analysis spreadsheet. The maximum technologically feasible levels, as calculated by DOE, that fail to reach the Final Rule AWEF levels are highlighted in yellow with red text in the table, below. Equipment Class Nominal Size (Btu/h) TSL 2 Compressor EL AWEF Final Rule AWEF Technology DC.L.O 6,000 SCR x10^-4xQ+2.73 <9,000 Btu/h DC.L.O 9,000 SCR DC.L.O 54,000 SCR ,000 Btu/h DC.L.O 72,000 SEM Similar to the DC.L.I products discussed above, the levels have been set incorrectly, and since they were set using calculated max-tech values, all large capacity low temperature direct condensing outdoor units below 54,000 Btu/h are eliminated from the market.

14 Page DOE Adopted AWEF Standard Levels for the Multiplex Condensing, Low Temperature (MC.L.N) Class That Exceed Max-Tech The Final Rule sets the standard for Multiplex Condensing, Low Temperature (MC.L.N) at 6.57 Minimum AWEF. As illustrated in the table below, that standard eliminates all products smaller than 18,000 Btu/h from the marketplace. The table below provides DOE s engineering analysis data points, showing AWEF levels from the Final Rule engineering analysis spreadsheets for products at different capacities at the baseline, TSL 1 and TSL 2 (max-tech) levels. For the Baseline and TSL levels, DOE selected the lowest calculated AWEF for the equipment class (as shown in the green highlighted cells below) to set the standards level for that class. However, for TSL 2, DOE selected not the lowest AWEF (5.94 in red text below) for the equipment class, but instead adopted the second - highest level (6.57). Thus, DOE s analysis is internally inconsistent, and because TSL 2 is max-tech, the selected level is higher than max-tech for capacities lower than 18,000 Btu/h. Furthermore, the AWEF selected (6.57) for this class is over 18% higher than the standard of 5.53 AWEF proposed in the NOPR. Because TSL 2 is identical to the max-tech level of TSL 3, it is not technologically feasible for units smaller than 18,000 Btu/h to meet the standard. In addition to the inconsistency with the proposed levels in the same equipment class, it is also inconsistent with DOE s selection of the AWEF standard level for Multiplex Condensing, Medium Temperature (MC.M.N), where the lowest AWEF for the representative nominal size was appropriately chosen as the class AWEF for all TSLs. DOE has provided no explanation for the inconsistent treatment of the low and medium temperature multiplex units. If the inconsistency is merely the result of a mapping error, it could be resolved through a technical correction to the WICF Final Rule.

15 Page 15 Baseline TSL 1 TSL 2 Equipment Class Nominal Size (Btu/h) Compressor Technology E L AWEF Compressor Technology E L AWEF Compressor Technology E L AWEF MC.L.N 4,000 4FIN FIN FIN MC.L.N 9,000 6FIN FIN FIN ** MC.L.N 18,000 4FIN FIN FIN MC.L.N 40,000 4FIN * 4FIN * 4FIN * DOE selected the lowest calculated AWEF for the equipment class as the proposed level ** Level DOE should have selected as the standards level AWEF for TSL 2 Level DOE selected as the standards level AWEF for TSL 2 E. Additional Changes From the NOPR to the Final Rule for Which Stakeholders Were Denied Notice or Opportunity to Comment The following issues were not present in the NOPR, or are changes in DOE s analysis from the NOPR to the Final Rule that are not logical outgrowths of DOE s NOPR analysis, and for which stakeholders had no notice or opportunity to comment. The cumulative effect of these issues resulted in AWEF levels that are above max-tech, in violation of EPCA s statutory requirements. Evaporator Capacity. In the NOPR, the evaporator capacity, called Nominal Size, was set equal to the compressor capacity during the unit cooler test. The compressor capacity is the value used to calculate AWEF in the NOPR. The Final Rule changed the evaporator capacity to be equal to the capacity of the unit cooler, typically rated at a temperature difference of 10ºF. This term is called Evaporator Gross Capacity, and it is highly dependent on the compressor selected for the test. This difference in calculation results in incorrectly inflating the AWEF by approximately 7% from the NOPR to the Final Rule for unit coolers connected to multiplex condensing systems. Effect of Subcooling on Evaporator Capacity. In the NOPR, the liquid at the unit cooler entrance was assumed to be saturated. In the Final Rule, the refrigerant is subcooled two different times: once by the receiver and once by the liquid line. In the final rule engineering analysis, the liquid temperature for the baseline of the Dedicated Condensing Low Temperature - Outdoor SCR.054.H equipment class was calculated to

16 Page 16 be 20ºF below saturation at the unit cooler entrance. The substantial amount of liquid subcooling inflates both the system capacity and the AWEF. Unit Coolers Sold Separately. In the NOPR, DOE s analysis was based upon Dedicated System matches for combined Condensing Units and Unit Coolers or matching Unit Coolers to a Multiplex compressor system. In the Final Rule, due to the changes in the related Test Procedure, DOE allows manufacturers to rate and certify the refrigeration system components separately. The Final Rule set the AWEF levels for medium and low temperature multiplex condensing classes based on the technology of using variable or modulating capacity operation; variable evaporator fan speed during a modulating refrigeration cycle; and hot gas defrost on low temperature. This change from the NOPR, based upon changes to the Test Procedure, eliminates the ability of manufacturers to offer unit coolers matched with fixed capacity condensing units, thus having an adverse impact on equipment utility and equipment availability. Floating Heat Pressure Design Option. In the NOPR, DOE correctly assumed that the minimum condensing temperature was equivalent to a saturated condensing temperature (SCT) at a specific temperature based on the compressor design. This method was not used in the Final Rule engineering analysis. DOE s Final Rule engineering analysis assumes that at 59ºF and 35ºF ambient temperatures the SCT of the compressor is equal to the minimum SCT temperature assumed for head pressure control. This conclusion is flawed, as there are some conditions where the actual condenser load will result in a SCT higher than the minimum SCT. When this occurs, the capacity and efficiency of the compressor are overstated, inflating the achievable AWEF. For example, a review of the DC.M.O.SCR.054.H equipment class indicates the AWEF may be overstated by as much as 13%. Hot Gas Defrost for Dedicated Condensing Systems. In the NOPR, DOE did not include Hot Gas Defrost as a design option for Dedicated Condensing Units, based upon the conclusion that for such units it was not effective at saving energy. 4 However, in the Final Rule, DOE changed course and included it as a design option. Because DOE stated in the NOPR that it was not including Hot Gas Defrost for Dedicated Condensing Units, stakeholders had no notice that it would be considered as a design option for that type of equipment. Dedicated Condensing System Capacity. The capacity of a dedicated condensing system is equal to the refrigerant mass flow times the enthalpy of refrigerant exiting the 4 79 Fed. Reg. 32,050, 32,082 (June 3, 2014).

17 Page 17 unit cooler minus the refrigerant enthalpy entering the unit cooler. The refrigerant mass flow is calculated using the compressor coefficients. In the Final Rule Refrigerants Engineering Spreadsheet, this value is reduced by 5% for the capacity calculations and presented as compressor rated mass flow corrected. However, no explanation is provided as to why the correction was made. The Final Rule calculations also include a significant amount of liquid refrigerant subcooling between the condensing unit and the entrance to the unit cooler, called additional degrees of liquid line subcooling. In the case of the DC.L.O.SCR.054.H equipment class, this additional subcooling ranges from 12 F to 8 F degrees, depending on the ambient temperature. As an example, additional liquid line subcooling increases the DC.L.O.SCR.054 model capacity by an average of 9%, which incorrectly inflates achievable AWEF. Variable Speed Condenser Fans. In the NOPR, the condensing temperature is calculated as the sum of the condenser temperature difference and the ambient temperature. This value was then compared to the minimum saturated condensing temperature. If the value was higher than the minimum, it was used as the condensing temperature. If the value was lower, the minimum value was used as the condensing temperature. The engineering analysis assumes that at the 59ºF and 35ºF ambient conditions the saturated condensing temperature at variable speed (50%) is the same as the saturated condensing temperature at 100% speed, which is identical to the minimum saturated condensing temperature. However, in many cases the saturated condensing temperature at variable speed (50%) is significantly higher than at full speed. As a result the engineering analysis overstates the compressor capacity and the achievable AWEF. F. DOE Did Not Provide the Statutorily Required Determination From the Department of Justice Regarding Competitive Impacts of the Standards Adopted in the WICF Final Rule. One of the critical factors to be taken into account by DOE in relation to economic justification of a standard is a written determination by the Department of Justice (DOJ) of the impact of any lessening of competition likely from imposition of a standard. 42 U.S.C. 6295(o)(2)(B). In this case, DOE obtained a DOJ determination about the competitive impact of standards proposed in the NOPR, in which DOE stated that it was adopting TSL 4. However, as discussed above, in the WICF Final Rule DOE determined that TSLs 4-6 in the NOPR were equivalent to Final Rule TSLs 1-3, which means that the TSL DOJ analyzed in the NOPR was

18 Page 18 equivalent to the Final Rule TSL 1. However, in the Final Rule DOE instead adopted the more stringent TSL 2, which was the NOPR TSL 5 level that DOE itself concluded placed an excessive burden on manufacturers, including small businesses. 78 Fed. Reg. 55,782, 55,879. Thus, DOE did not obtain a DOJ determination on the standards DOE actually adopted. This was unlawful under EPCA given the extensive and material changes to the standards that could not have been foreseen from the NOPR. DOE s failure is inconsistent with EPCA s express concern for DOJ evaluation and weighing the impact on competition of a standard the agency is adopting. The obvious congressional purpose animating this statutory requirement and common sense both dictate an evaluation of the impact on competition of the standard actually being adopted. III. CONCLUSION In 1995, Congress imposed a moratorium on DOE s appliance standards program because of serious concerns about the program. See Pub. L During the moratorium, DOE reviewed serious shortcomings in the rulemaking process and provided what was intended to result in much-needed improvements in that process. The review resulted, in part, in DOE s PIR, 10 C.F.R. Pt. 430, Subpt. C, App. A. The PIR provides, among other things, that industry and the public will be afforded an adequate opportunity for input in rulemaking, and that major changes in analyses should not occur without the opportunity for full review, consideration and comment by all interested parties early in the process. This was deemed essential in order to avoid hasty and misinformed decisions on matters having potentially severe economic consequences. These concerns have resurfaced nearly 20 years later in DOE s process for adopting the WICF Final Rule. In this rulemaking, DOE published a rule that is fundamentally different than

19 Page 19 the NOPR: (1) it adopted standards at a TSL level it rejected as not economically justified in the NOPR; (2) it set standards for multiple classes of equipment above max-tech levels in violation of EPCA s statutory requirement; (3) it failed to provide adequate notice and comment of the standards in violation of the APA; and (4) and it failed to provide the required DOJ determination on competitive impact of the standards adopted in violation of EPCA s requirements. For the foregoing reasons, AHRI believes that it is critical for DOE to reconsider this rulemaking to cure the errors resulting from completing this rule too hastily, and more importantly to evaluate fairly the key substantive determination of what standard level is technically feasible and economically justified in light of the correct technical analysis and free of foundational errors. AHRI is confident that an open and transparent review will result in efficiency standards levels that will produce real energy savings that are technically feasible and economically justified. AHRI is prepared to assist DOE as it completes its work and brings this important rulemaking to a successful conclusion. AHRI also respectfully requests that DOE (a) promptly estimate and make known to the public its timeline for considering and acting upon this Petition for Reconsideration; and (b) promptly set out any other procedures or details as to how it will address this Petition for Reconsideration. Finally, due to the statutory timeframe established by 42 U.S.C. 6306(b), AHRI will file, out of an abundance of caution, a Petition for Review within that timeframe in order to ensure that it preserves its right to challenge the rule pending DOE s consideration of this Petition for Reconsideration, since it is unknown to AHRI whether DOE will take the position that granting this Petition for Reconsideration is beyond the agency s

20 Page 20 powers absent a court order vacating the Final Rule and allowing for such relief. Sincerely, Stephen R. Yurek President & CEO Cc: David Danielson, Assistant Secretary for Energy Efficiency and Renewable Energy Dr. Kathleen Hogan, Deputy Assistant Secretary for Energy Efficiency Dr. Steven Croley, General Counsel John Cymbalsky, Program Manager, Appliance and Equipment Standards & Building Codes