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 U.S. DEPARTMENT OF ENERGY

 + + + + +

 REGIONAL STANDARDS ENFORCEMENT WORKING GROUP

 + + + + +

 MEETING

 + + + +

 WEDNESDAY, AUGUST 13, 2014

 + + + +

 The Working Group convened in Room

8E-089, U.S. Department of Energy, 1000

Independence Avenue, SW, Washington, D.C., at

9:00 a.m., Neil Eisner, facilitator,

presiding.

PRESENT

NEIL EISNER, Facilitator

TIMOTHY BALLO, Earthjustice

JORDAN DORIA, Ingersoll Rand

RAY ELLIS Lincoln Electric Cooperative

GARY FERNSTROM, California Investor-Owned

 Utilities

JOHN GIBBONS, Carrier Corporation

SCOTT HARRIS, Harris, Wiltshire & Grannis

 LLP 

GLENN HOURAHAN, Air Conditioning Contractors

 of America 

DAVID HUNGERFORD, California Energy

 Commission (via telephone)

MATTHEW LATTANZI, NORDYNE Inc.

KAREN MEYERS, Rheem Manufacturing Company

ELIZABETH NOLL, Natural Resources Defense

 Council

STEVE PORTER, Johnstone Supply

DOUG RAWALD, U.S. Department of Energy

 General Counsel
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BRYAN ROCKY, Johnson Controls

ANIRUDDH ROY, Goodman Manufacturing Company

HARVEY SACHS, American Council for an

 Energy-Efficient Economy

AMY SHEPHERD, Air-Conditioning, Heating, and

 Refrigeration Institute

CHARLES WHITE, Plumbing-Heating-Cooling

 Contractors National Association 

DAVE WINNINGHAM, Allied Air Enterprises, LLC

ALSO PRESENT

ASHLEY ARMSTRONG, U.S. Department of Energy

DAVID CALABRESE, Daikin Corporation

DAN COHEN, U.S. Department of Energy

KEITH DENNIS, National Rural Electric

 Cooperative Association

LAURA DEGITZ, Navigant

JOHANNA HARIHARAN, U.S. Department of Energy

JOHN HURST, Lennox International, Inc.

DANIEL LAPATO, American Public Gas

 Association

PAUL LIN, Regal-Beloit Corporation

CHARLES MCCRUDDEN, ACCA

JONATHAN MELCHI, HARDI

STEVEN ROSENSTOCK, EEI

ERIC STAS, U.S. Department of Energy

DON SURRENA, National Association of Home

 Builders 
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 C-O-N-T-E-N-T-S

Call to Order and Opening Remarks 5

Opening Remarks 6, 38

 Neil Eisner

 Facilitator

Ethics Discussion 32

Introductions 43

Introduction of Facilitator 71

Establishment of Ground Rules for 73

the Negotiations

 Vote on Ground Rules 238

 (Adopted)

Development of Schedule for 238

Negotiation Meetings

Discussion of Rulemaking Objectives 282

and Scope of Negotiations

 Scope of Negotiations 284

 FTC Energy Value Label 284, 341
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 C-O-N-T-E-N-T-S (CONTINUED)

Discussion of Rulemaking Objectives

and Scope of Negotiations

(Continued)

 Scope of Negotiations (Continued)

 R22, Dry Ship Equipment Under 288

 Regional Standards

 Available Documents and Resources 290

 352

 Definitions 293

 Enforcement Actions 294

 What Information Does the Working 315

 Group Need from the Department of

 Energy

 Internet Sales 335

 Tools of Enforcement 338

 Such as Databases

 Waiver for Large Equipment 352

 Prioritization of Scope Discussion 359

 List
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1 P-R-O-C-E-E-D-I-N-G-S

2 9:11 a.m.

3 MS. ARMSTRONG: Good morning.

4 My name is Ashley Armstrong. I

5 work here at the Department.

6 I would like to welcome you to our

7 negotiations for regional standards

8 enforcement of central air conditioners.

9 We see a lot of familiar faces in

10 the room. So, we are happy that you are back. 

11 We see some new faces, and we welcome you to

12 participate.

13 Sitting next to me on my left is

14 Neil. He is our facilitator. He also did the

15 facilitation for the commercial cert reg neg

16 that we did last year. And that ended up

17 quite well, at least from the Department's

18 perspective. So, we are hoping we have a

19 similar result here.

20 Just logistical things. I think

21 most of you are familiar with DOE and how this

22 all works. But bathrooms are around the
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1 corner. Wear you badge at all times while you

2 are in the building at least, and you can wear

3 it outside the building if you really want to. 

4 It is a fashion statement; come on.

5 And then, downstairs is the

6 cafeteria and straight down all the way in the

7 basement is Dunkin' Donuts for anyone that

8 needs more caffeine for the negotiations.

9 But, with that, I am going to turn

10 it all over to Neil.

11 Thank you all for coming and

12 participating with the Department. If you

13 have any questions, feel free to let us know,

14 either through the ASRAC email box or you can

15 email myself or Neil.

16 MR. EISNER: Thank you, Ashley.

17 And it is kind of scary when I

18 realize I know people around the table also. 

19 I hope they all have some good things to say

20 about the process the last time, because, from

21 my perspective as the neutral, I thought it

22 worked very, very well.
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1 I did go through some documents

2 before these meetings started, such as looking

3 at the transcript of the meeting that you had

4 in 2011, I think it was, to talk about this

5 issue. It looks like it is complex, but there

6 is always room for compromise. There is

7 always room for discussion.

8 I want to start off by talking a

9 little bit about the negotiated rulemaking

10 process. Some of you have been through it

11 before, so maybe it will be a refresher; some

12 of you have not. I want to talk about how it

13 works and how you can use it most effectively. 

14 Don't hesitate to stop me if you have got

15 questions as I am talking about it, making my

16 points.

17 Regulatory negotiation is when an

18 agency decides, for a variety of reasons we

19 will touch upon, that it would be appropriate

20 to convene an advisory committee made up of

21 people who can represent the interests

22 affected by the issue the agency is concerned
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1 about.

2 I say "issue" rather than

3 "rulemaking" because one thing you can

4 sometimes decide is that rulemaking is not

5 necessary, that we can handle this through

6 some other method, some other action by the

7 agency.

8 But you represent affected

9 interests. You don't represent the person or

10 the company for whom you work. You represent

11 the interests, needs similar to yours.

12 And you come to the table trying

13 to negotiate a proposed rule, if a proposed

14 rule is necessary, or some other solution to

15 the problem. The agency doesn't start out by

16 putting something on the table. The agency

17 starts out by saying we have something we have

18 to resolve, either because of a statutory

19 mandate or problem we are having in compliance

20 with existing rules, or whatever.

21 In the case with the agency I came

22 from, the Department of Transportation, when
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1 I worked there, we looked at mainly safety

2 issues. If accidents were going up or

3 accidents weren't decreasing enough, we might

4 convene a group like this to say, "What should

5 we do? What do you think the solution is?"

6 It is a consensus process. We are

7 getting consensus. It is not just you; it is

8 the interest that you represent that you want

9 to speak for.

10 Why is it used by agencies? Well,

11 the APA process itself, the Administrative

12 Procedure Act process of notice and comment,

13 rulemaking, can be adversarial, partly because

14 the agency is putting out a proposal. So, the

15 tendency upon the participants in the

16 rulemaking process is to defend their interest

17 or to protect their interest by making sure

18 the agency doesn't do something that will hurt

19 it or won't work well for it, and to try to

20 get the agency to do things that will allow it

21 to effectively respond to the requirements. 

22 And then, they are kind of protecting your
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1 interests.

2 In the negotiated rulemaking

3 process you are trying to solve a problem with

4 the agency. You are trying to sit down and

5 say, okay, what will work best for all of us? 

6 That may mean you have to give a little bit to

7 get something from the other side, but they

8 will go and give something, then, to get what

9 you want.

10 Some people would complain that

11 that means you are going to go with the lowest

12 common denominator. And I come from the

13 safety area. It doesn't mean the lowest

14 common denominator.

15 When you are setting a rule, you

16 oftentimes have an area in which you can write

17 that rule. You can set the standard here and

18 something else over here and something else

19 over here that all together works out to do

20 what you want it to do.

21 But maybe the agency is going to

22 say this ought to be higher or this ought to
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1 be lower, but you could do it the other way

2 around if you achieve the same level of safety

3 or the same level of energy efficiency. The

4 agency doesn't always know what that is. The

5 agency needs input from everybody.

6 And that is another thing about

7 negotiated rulemaking. This is a much more

8 effective process. We are talking about the

9 issues rather than putting something in

10 writing or coming into a public hearing that

11 agencies will occasionally hold, when you say

12 your five or ten minutes, sit down, and

13 somebody else gets up and says five or ten

14 minutes.

15 We want to talk about things. We

16 want to solve things. We want people to

17 suggest ideas without having to be worried

18 about whether it is the ultimate solution for

19 them also.

20 As you start to talk around the

21 table, you don't want to argue, you don't want

22 to fight with each other. What you want to
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1 say is, "Why do you think that will work? Why

2 do you think that will be costly? Would you

3 be able to live with it if we did this or we

4 did that?" These are the kinds of discussions

5 you want to have, and you can do this in a

6 negotiated rulemaking process.

7 You still have to go through the

8 Notice of Proposed Rulemaking process. There

9 is nothing that allows the agency to waive the

10 requirements of the Administrative Procedure

11 Act. But experience has shown that you are

12 going to get a better rule through this

13 process, and you are going to get it faster

14 than you might normally get it, even though

15 you have added a step.

16 You are going to get better

17 compliance because you understand what the

18 rule is all about. You are going to have a

19 better idea of that when you walk away from

20 the table at the end because you helped to

21 draft it; you helped to decide what was going

22 to be in it. And you also have a better
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1 understanding of the problems the agency has.

2 One of the things that always

3 interested me in the beginning, when we first

4 started using negotiated rulemaking in the

5 government back in the early eighties, was the

6 opportunities for the industry to come up or

7 the public interest group to come up to the

8 agency representative and say, "Wow, I now

9 have a better idea of some of the issues and

10 problems you had in trying to write a rule

11 that would work well for everybody. I now see

12 how difficult it is. I have a better

13 perspective because I sat in the meeting and

14 I heard the concerns from different people. I

15 heard the problems they would have."

16 Even without consensus, you should

17 end up with a better rule in the end because,

18 if nothing else, the agency is going to learn

19 from the meetings. I again had that

20 experience through the Department of

21 Transportation, where we were not successful. 

22 We couldn't even get everybody to stay at the
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1 table until the end of the negotiations.

2 And there were two very, very

3 interesting things that came out of that. 

4 One, the person who had to work on the rules 

5 said, "I learned a lot in this meetings, and

6 I will write things differently from the way

7 I would have before those meetings." And we

8 wrote a rule that was successful. It got out. 

9 It was published. It got comment, and we

10 adopted a final rule from it.

11 Later on, I got a call about a

12 year later from a Committee staffer on the

13 Hill saying, "I want you to do regulatory

14 negotiation on this particular issue that the

15 Congress thinks needs to be resolved." And

16 she wanted to ask me some questions about. 

17 And I said, "Wait. Who is asking you to do

18 the regulatory negotiation? Why do they want

19 us to do this?", because it was the same kind

20 of subject area as the one where some of the

21 people had walked out.

22 And she mentioned a bunch of
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1 interest groups. And I said, "But wait a

2 second. They are the ones who walked out of

3 the DOT's negotiated rulemaking on another

4 subject in this area two years ago."

5 And she said, "Oh, I know that and

6 they know that. They said they still like the

7 process. They thought it worked very well for

8 them in the end."

9 A lot of subtle things go on in

10 these negotiations. Walking out of a meeting

11 is intended sometimes to send a message. But

12 they still thought that they got a much better

13 rule than they would have gotten through the

14 regular process.

15 It may be costlier. It may be

16 more time-consuming. But, even then,

17 sometimes it is still going to result in a

18 better rule. And for the agency in the end

19 that means it is going to be a rule that is

20 easier to enforce. And for you, it is going

21 to be a rule that is easier to comply with.

22 There are times when we don't want
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1 to use it. It is not meant for all

2 rulemakings. For example, you may have a

3 fundamental interest for which you think the

4 Constitution protects your right to get

5 something. You are not going to sit around a

6 table and compromise your constitutional

7 right.

8 So, for example, on an issue like

9 abortion, you wouldn't want to sit down with

10 the Department of Health and Human Services

11 and try to negotiate a rule governing

12 abortion, on when you could do it and when you

13 couldn't do it. You would probably never get

14 consensus. So, there are places where it

15 wouldn't work.

16 You want to make sure that you

17 have no more than about 25 people sitting

18 around the table. That is because people have

19 found, experts who have worked in the area

20 have found that, if you get too many people

21 sitting at a table, you never can end the

22 discussion. It just keeps going around and
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1 around and days go by before you get any

2 result from it. You have got to narrow it

3 down.

4 So, if the issue you are talking

5 about has so many different kinds of affected

6 interests that can't all be represented with

7 less than 25 people, you probably don't want

8 to negotiate a rule.

9 You want to have something that

10 has more than one issue. You want to have

11 room for compromise. You want to have room

12 for people to say things that they could trade

13 off.

14 A good example is if you work in

15 an area where you have got to worry about

16 fatigue, you worry about how many hours

17 someone can work before having a break or

18 before going home to get a night's sleep. We

19 did a lot of that at the Department of

20 Transportation, some successfully, some not so

21 successfully.

22 But you don't want the airlines,
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1 for example, to say you have got to fly at

2 least ten hours on a given flight, on flights

3 in a given day, or I can't make money, and

4 have the airline pilots say, "We can't fly

5 more than eight hours. It is unsafe." And

6 then have the airlines say, "Well, how about

7 if we pay you more per hour. Can you fly ten

8 hours then?" That is not the kind of

9 compromise you want to make.

10 But you do want to make

11 compromises where, if somebody identifies an

12 easier way for people to comply with a safety

13 rule, that might be a more effective rule than

14 a higher safety standard because you won't

15 have as much noncompliance.

16 So, those are the kinds of things

17 you can think about. Those are the kinds of

18 things you want to talk about around the

19 table.

20 You have got to worry, of course,

21 about deadlines because deadlines keep people

22 focused on the result. Some people could come
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1 into a negotiated rulemaking figuring every

2 day I can delay these proceedings is better

3 for my respective interest, for whatever

4 reason. So, a deadline is created.

5 We have a deadline here. We are

6 supposed to produce a final product by the end

7 of October. If it looks like we are not

8 making progress, but everybody around the

9 table agrees that we are making enough

10 progress to ask for more time, we can do

11 something like that.

12 How does it work? Well, very

13 simply, we start it today. You bring in some

14 neutral third party like me. You ask me to

15 facilitate the conversation. And that means

16 a bunch of things, and we will get into that

17 in a little bit more detail later on. But it

18 means that I try to help you negotiate.

19 We have got the Committee. We

20 have got the people around the table, and we

21 have got the impartial facilitator. If we are

22 successful, we will have a proposed rule to
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1 put out at least ready to go back to DOE to

2 put the finishing touches on and to send

3 through OMB, put out and put in The Federal

4 Register for notice and comment and

5 rulemaking.

6 And usually, as I said, you can

7 have a shorter comment period if you get

8 fewer, less-adverse comments because we have

9 been through this process. We have heard from

10 representatives of all the interests. We

11 should be pretty close to on target. And

12 experience has shown that is generally the way

13 the agencies go in negotiations.

14 We start off, the first thing we

15 will be doing today is talking about the

16 procedures. I was always fascinated by issues

17 when they try to resolve, get a peace treaty

18 out of the Vietnam War.

19 A lot of experts will tell you the

20 most difficult issue is the shape of the table

21 for the negotiators in terms of who is

22 primary, who is not primary in the
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1 discussions, what role you play. And they

2 spend a lot of time negotiating the shape of

3 the table. Hopefully, this is okay for you,

4 but, if necessary, we will rearrange it.

5 But, once you start to work out

6 the procedures, you will see why that is

7 important, because we are going to talk, among

8 other things, about what is consensus of this

9 group; what does it mean. But we are also

10 going to talk about procedural things like how

11 often do we want to meet; how many days do we

12 want to meet; what hours do we want to meet. 

13 We want everybody to make sure they are

14 comfortable with the process before we get

15 into the substance.

16 Some people wonder about the

17 authority. Technically, the Administrative

18 Procedure Act does not preclude an agency from

19 using a negotiating rulemaking process before

20 it starts the rulemaking. Agencies have

21 always had the authority under the

22 Administrative Procedure Act to do it. But
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1 some agencies were a little concerned that

2 they didn't have specific authority, even

3 though it had been used by a number of

4 agencies in the eighties and early nineties.

5 In the 1990s, Congress passed the

6 Negotiated Rulemaking Act, the basic

7 parameters for effective processes for

8 negotiated rulemakings, such as the number of

9 people who should be sitting at the table, the

10 use of conveners and facilitators, those types

11 of things.

12 It is not, however, binding. It

13 does allow an agency to try other processes. 

14 So, again, it is something we should keep in

15 mind. It is something we should consider. 

16 But, if we have good reason for doing

17 something differently, we can.

18 We also have no exception from

19 another statute, the Federal Advisory

20 Committee Act. So, pursuant to the Federal

21 Advisory Committee Act, the government cannot

22 meet with more than one person from outside
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1 the government with the objective of getting

2 consensus from the group. I can meet with

3 each one of you if I am a government employee. 

4 I can ask each one of you what do you think,

5 but I can't ask you, as a group, can you reach

6 consensus, unless I charter you as an advisory

7 committee.

8 And by the way, generally subject

9 to the Federal Advisory Committee Act, some

10 agencies, or at least one that I know of, in

11 particular, there is a special statute that

12 exempts them from the Federal Advisory

13 Committee Act and establishes other

14 procedures.

15 But we are under the Federal

16 Advisory Committee Act, and someone will be

17 coming in in a little while to talk to us

18 about some of the requirements there in terms

19 of compliance with that statute and some other

20 responsibilities.

21 The other important thing to

22 remember -- and a lot of people ask questions
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1 about this -- why whatever we all agree to in

2 this room cannot be simply signed by the

3 agency and put in The Federal Register. And

4 that is because the agency does not have the

5 legal authority to delegate its responsibility

6 to a committee made up of people outside the

7 government. The Secretary has the authority

8 to make decisions; the Committee does not.

9 The agency sends a very strong

10 message -- and I am not aware of there ever

11 being any problems -- when it says, unless we

12 discover legal problems with the consensus

13 approach, we will publish this rule. We have

14 to go through OMB, but OMB understands the

15 requirements. They understand the importance

16 of doing what the Committee has achieved

17 through consensus.

18 And you have got someone sitting

19 at the table representing, not him, not the

20 General Counsel's Office, but representing the

21 Department of Energy. And Doug has the

22 responsibility of going in and making sure
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1 that all the appropriate people in the

2 Department are constantly briefed on what is

3 going on, what the issues are, and making sure

4 that he has the authority to resolve it, in

5 particular, what he thinks appropriate or he

6 is told to resolve.

7 So, he, just like you, you are all

8 expected to go back to others involved in your

9 interest group, and some of them may be

10 sitting in this room; some of them you may

11 contact by phone. And we will talk a little

12 bit about that in a few seconds.

13 The one thing I do want to stress

14 again is OMB. The agency usually lets OMB

15 know that it is going to use negotiated

16 rulemaking. And when I was at the Department

17 of Transportation, we would tell them, "You

18 can come to the meeting. You can get

19 briefings from us, whatever you want. But

20 when we send the document to you, we expect

21 that it will be cleared, and it will be

22 cleared quickly. You will not be saying," as
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1 you know -- (laughter) -- yes, people know

2 that.

3 I remember once I had a problem,

4 and they said, "Well, we don't think the

5 industry fully appreciated the cost this is

6 going to have on them." I said, "You have to

7 be kidding me. The industry has agreed to

8 what we have put in front of you, and you want

9 to go back and tell them you know better than

10 they do?" And he says, "Yes, you've got a

11 good point."

12 So, you have got to keep in mind

13 that they are there. And the laughter comes

14 I am sure from Scott because, if we get into

15 an election year, strange things happen.

16 We have never been able to figure

17 out, when I was in the government -- maybe you

18 have figured it out since then -- whether it

19 is an election year or it is the effect that

20 it is a year in which the Olympics occur that

21 causes the problem, but strange things we see. 

22 So, all the more reason for resolving matters
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1 here before presidential elections, before we

2 get into a presidential election.

3 Okay, three key points I want to

4 make:

5 First of all, good-faith

6 participation. You are all here with a

7 commitment to negotiate in good faith. One of

8 the important things to remember is you are

9 not, as I said earlier, representing your

10 employer or your interest group or your

11 manufacturer. You are representing everybody

12 who shares the interest in common with you.

13 Generally, in well-organized

14 industries generally you know what is going

15 on. You have got representatives from those

16 types of groups.

17 To give you an example again in

18 the area I worked in, for example, the first

19 regulatory negotiation we did involved an FAA

20 rulemaking in the Department of

21 Transportation. There were three unions that

22 represented flight attendants. There were at
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1 least two unions that represented pilots. We

2 didn't have to have each one at the table, but

3 the representative who was at the table had to

4 work with each of those unions. The other

5 unions had people in the room. They could

6 lean over somebody's shoulder and say, "Let's

7 take a break. We want to talk to you about

8 where this is going."

9 You can do this in a variety of

10 ways. You can keep in contact with the people

11 you think share your interest or you know

12 share your interest. You can email them. You

13 can talk to them on the phone. You can have

14 conference calls. You can have meetings with

15 your interest groups. Whatever it is that you

16 have got to do, you want to make sure you are

17 representing them.

18 Most of the time -- and I found

19 this in the last one I did for DOE -- you know

20 what those interests are; you know what they

21 want; you know what the concerns are, or you

22 can clear it up in a few minutes.
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1 Bring all the issues to the table. 

2 That is point No. 2. Don't hold back on some

3 issues, like you might do in rulemaking. 

4 Don't fail to share information that will help

5 people reach a conclusion. You want to bring

6 the issues here.

7 You do not want to bring the

8 issues elsewhere if you are unhappy with what

9 you are hearing in this room. If you have got

10 problems with what is going on, you express it

11 at the table. If you have problems with what

12 is going on that you don't think you can

13 express at the table, you can come to me and

14 we can talk about it.

15 You don't go to the Secretary of

16 Energy; you don't go to the Office of

17 Management and Budget; you don't go to other

18 branches of the government and say, "I'm not

19 happy with the way the negotiations are

20 working. I think you need to intervene by

21 doing something."

22 This happened, again, in the first
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1 negotiated rulemaking that we did. It

2 happened with a very powerful interest. They

3 thought they could just sit there and bide

4 their time and they were so powerful they

5 could get what they wanted. And they suddenly

6 realized people were working together around

7 the table; people were resolving things. And

8 they got worried.

9 They went to the Administrator. 

10 We had a third-party professional mediator out

11 there who worked for one of the government

12 agencies that handles mediation and big

13 disputes. And he had settled at that time the

14 first -- but I now have to say "the first" to

15 make sure it is clear -- the first baseball

16 strike. So, he had a very, very good

17 reputation.

18 And he said to that party, "Do not

19 do that again. If you ever go around my back

20 and go to someone," in that case with the

21 Administrator, "and go around my back, I will

22 throw you off this Committee. And I will be
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1 happy to go public and explain why I threw you

2 off the Committee."

3 So, I am not threatening anybody. 

4 I don't want to do that. I just want to tell

5 you the process works. There are lots of

6 ways. If you are troubled by what is going on

7 in the meeting, make sure you talk to me first

8 and we will figure out what to do.

9 You have said you will be here in

10 good faith. You have said that you will

11 negotiate the issues at the table.

12 Consensus, I also want to point

13 out, means listening to others. I have said

14 that before. It means compromise sometimes. 

15 Those are your judgment calls to make. You

16 can say, "Well, look, you know, I see where

17 you're going. I see what the issue is. I can

18 live with what you want here. Can you help me

19 with another issue?" We will get more into

20 this when we talk about consensus and the

21 ground rules.

22 MS. HYMER: My name is Tina Hymer. 
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1 I am from the General Counsel's Office.

2 Are there people on the phone

3 (referring to having to use a microphone)?

4 MR. EISNER: For the transcript.

5 MS. HYMER: Oh, okay. Thank you. 

6 Okay, sorry for all that (referring to the

7 fact she had begun to speak without using a

8 microphone).

9 Good morning, everybody.

10 My name is Tina Hymer again. I am

11 from the General Counsel's Office. I am the

12 Deputy Assistant General Counsel for Standards

13 of Conduct, which is a long title. I oversee

14 the Ethics Group. I also provide guidance on

15 the Federal Advisory Committee Act to various

16 different offices here at the Department.

17 And I was asked to come today just

18 to talk a little bit about FACA and some of

19 the things to make you aware of, which it

20 sounds like some of the things that you have

21 already been discussing.

22 The big thing for this is that you
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1 are operating as a subcommittee of a parent

2 committee of a FACA that we have here, which

3 basically means that all of the advice and

4 recommendations that this subcommittee will

5 provide will all go up to the parent

6 committee.

7 And that is really important

8 because that is what gives you the flexibility

9 to meet without your meetings being noticed in

10 The Federal Register. It allows you to have

11 discussions via conference calls or even over

12 email or webinars. So, there is a little bit

13 more flexibility.

14 But it is really important to keep

15 in mind that everything that this subcommittee

16 develops has to go up through the full parent

17 committee. And that is what allows us, again,

18 that is what allows us that flexibility.

19 Also, too, with that said, any

20 information that you have or documents that

21 are presented to you, if those things are

22 going to be provided or cited in your report
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1 that ultimately goes up to the parent

2 committee, those may at some point become

3 public.

4 So, anything that you are using

5 just as background information or as documents

6 to help inform you on a particular topic, if

7 you don't want that to become public, you are

8 going to keep that as background information. 

9 You are not going to cite to it in the report

10 or that is going to go to the public because,

11 again, the law says, the Federal Advisory

12 Committee Act says, that anything is presented

13 or prepared for or by an advisory committee

14 can be made available to the public. And we

15 do withhold some things via the exemptions in

16 FOIA, but, ultimately, those things are going

17 to be, those things that are presented to the

18 full committee will be made public at some

19 point.

20 So, that is something to keep in

21 mind, too, when you are sharing information

22 amongst the group here. If it is ultimately
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1 going to get cited, it could at some point

2 become public.

3 Dan just left.

4 Those are basically, for the

5 purposes of this committee, you are all here

6 -- you are not, with the exception of --

7 actually, you are all here as representatives. 

8 So, you are not subject to the conflict-of9 interest rules like some of Scott's colleagues

10 on the parent committee, who are appointed as

11 special government employees. They are

12 subject to some of the conflict-of-interest

13 rules, just like I am.

14 But, as representatives, you are

15 here representing the viewpoints of your

16 industries, of your companies. And so, you

17 are not subject to those rules. We expect

18 your comments to be biased in some way

19 because, again, like I said, you are

20 representing a viewpoint. So, you are not

21 going to be subject to those rules.

22 But does anybody have any other
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1 questions about in terms of the Federal

2 Advisory Committee Act or how things will

3 operate?

4 (No response.)

5 No?

6 MR. RAWALD: This is Doug Rawald

7 from the Department of Energy. I want to make

8 a couple of things clear.

9 So, everyone has a microphone in

10 front of you. Push the button to turn it on

11 before you speak. Say your name for the

12 record because the transcript will have your

13 name before it. So, at all times do those

14 things.

15 When you done speaking, push the

16 button and the microphone will turn off. That

17 will stop you from being recorded when you

18 don't want to be heard with what you are

19 saying.

20 So, please keep those things in

21 mind.

22 Folks who are listening on a
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1 webinar, so that folks want to hear what you

2 are saying, too. So, making clear who you are

3 will help them.

4 And also, for the people on the

5 webinar, please keep your phone mute so we

6 don't hear you accidentally while you are

7 talking.

8 Harvey?

9 MEMBER SACHS: I am Harvey Sachs

10 from ACEEE.

11 I appreciate your efforts, but

12 wonder if you perhaps have the authority to

13 get the AV system fixed. It is now three

14 years, I think, that I have been listening to

15 that hum.

16 (Laughter.)

17 MS. HYMER: This is Tina.

18 Unfortunately, they didn't teach

19 me that in law school, unless I would be happy

20 to.

21 (Laughter.)

22 But I think we can get in touch
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1 with the facilities folks.

2 MEMBER SACHS: Ma'am, none of us

3 expects lawyers to fix anything.

4 (Laughter.)

5 MS. HYMER: Ohhh. I work very

6 hard to try to make sure that you all stay out

7 of trouble.

8 MR. EISNER: No questions for

9 Tina?

10 (No response.)

11 Thank you.

12 Okay, the final point I want to

13 make is to focus on fixing the problem. I

14 talked at this at my first negotiated

15 rulemaking at DOE a year and a half or so ago. 

16 And I was very pleasantly surprised with how

17 well I thought it worked. And some of the

18 participants in this group were there then.

19 Don't attack when people make a

20 point. Ask questions. Learn to ask questions

21 because you are here to bring out information,

22 so you can see how you can fix the problem. 
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1 So, if somebody says, "I think it is going to

2 very, very expensive to do" such-and-such,

3 don't say, "That's crazy. It's not going to

4 be that expensive."

5 Ask them why they think it is

6 expensive or what data they have. Ask for

7 more information. Ask people questions. It

8 will bring out the information. It will also

9 keep people in a position where they are

10 working together.

11 The object here is for everybody

12 to agree to a final document, not for people

13 to consistently fight with each other it, but

14 to work out the solution to the problem. That

15 is why there is no proposal on the table.

16 So, you want to seek the common

17 ground. You want to think about possible

18 alternatives, and you want to think about ways

19 you can protect your interest without hurting

20 somebody else's.

21 If nothing else, even if we don't

22 achieve the success of agreeing to a document
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1 at the end, it will bring out better

2 information that the agency will be able to

3 use more effectively to draft a rule on its

4 own, if it has to. But our objection is not

5 that. Our objective is to get consensus

6 around this table.

7 My job is to help with that

8 process. I am not here to make any decisions. 

9 I am not here to push for a particular

10 decision. I have no benefit by whatever comes

11 out of this, other than maybe when I go out to

12 buy an air conditioning unit.

13 I am here to push you, however,

14 cajole you, work with you, try to get you to

15 figure out how to get to get to what you want,

16 to do a better job in listening, not to push

17 you to a particular decision, but to get you

18 to do a better job if I don't think you are

19 listening well, if I think you are being too

20 defensive, if I think you are not being

21 objective in your negotiation. I am not going

22 to do it in this room if I can avoid it. I am
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1 going to stop you in the hallway and chat with

2 you for a few minutes.

3 That is what my job is, and it is

4 going to include Doug. It is going to include

5 anybody else from DOE who is at the table. I

6 am here to make sure you guys focus on

7 resolving the problem and not on arguing or

8 doing anything else.

9 I may ask questions myself. I may

10 say I don't understand something. I may say,

11 "Can you help me with this, so I can find out

12 whether maybe I can put a suggestion on the

13 table? You said you wanted X. You said you

14 wanted Y. How about X minus 1? Will that

15 work? Will that solve things?"

16 I am neutral. I can say, well,

17 maybe I can help here. Maybe I can throw out

18 some language that will work.

19 If appropriate, we can take breaks

20 if somebody wants it. We are going to have

21 regularly-scheduled breaks, but if somebody

22 wants to break 10 minutes after we start
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1 because they think it is important to have a

2 private conversation with one or two or three

3 people around the table, that's fine. Raise

4 your hand and say, "We'd like to take a break

5 so we can talk. We want to caucus." If you

6 need a room, we can find you a room in the

7 building where you can talk for whatever time

8 it takes to resolve your issues.

9 We can also schedule meetings

10 between our scheduled meetings of smaller

11 subgroups. They can be by phone. They can be

12 in person. Whatever you want, I can help. If

13 necessary, I can come to try to facilitate

14 some of those things.

15 There are lots of different things

16 I can do. Don't hesitate to help me. If you

17 think somebody is being difficult with you and

18 you think somebody is being obnoxious, again,

19 come to me first. See if I can help. See if

20 I can do something about it. See if I can

21 resolve it.

22 But the key thing I learned -- and
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1 it worked, I thought, very effectively the

2 last time -- is ask questions. Don't

3 challenge, don't object, don't fight. Just

4 ask questions.

5 Lots of times the person you are

6 asking the questions of will say, "You know,

7 I got it. There is a problem with this. Let

8 me think about it some more."

9 Any questions?

10 (No response.)

11 You know, one of the things I do

12 sometimes to achieve consensus is say, "Well,

13 nobody objects. I guess we have consensus."

14 So, everybody understands the

15 process? Everybody is ready to go?

16 Okay. I think the next thing on

17 our agenda is to introduce everybody. Why

18 don't we start with Harvey and go around the

19 table?

20 You can say a sentence or two on

21 why you are here at the table.

22 MEMBER SACHS: Good morning.
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1 I look forward to working with all

2 of you.

3 I am Harvey Sachs from the

4 American Council for an Energy Efficient

5 Economy. I am one of the survivors of Neil's

6 last process and looking forward to this. I

7 am also one of those who participated in the

8 original negotiations that led to the regional

9 standards, and I see a couple of the other

10 perpetrators in the room as well.

11 We have a lot of work to do. 

12 There are things we didn't think about at that

13 time, for which I bear some responsibility,

14 and let's fix it.

15 MEMBER BALLO: This is Tim Ballo

16 from Earthjustice.

17 Like Harvey, I couldn't imagine a

18 summer going by without spending a few weeks

19 in meetings discussing certification and

20 compliance issues for HVAC equipment.

21 Hopefully, you all will hear a lot

22 more from Harvey than from me.
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1 (Laughter.)

2 MEMBER HARRIS: My name is Scott

3 Harris. I am the former General Counsel of

4 the Department of Energy, and I am currently

5 the Chairman of the technology law firm

6 Harris, Wiltshire & Grannis.

7 While I was at DOE I did a lot in

8 the area of enforcement. And I think I was

9 asked to participate on this particular

10 committee because of that expertise and

11 background.

12 MEMBER GIBBONS: Hi. I am John

13 Gibbons from Carrier Corporation. I represent

14 all the UTC brands from Carrier/Bryant, all

15 the ICP brands.

16 I am kind of new to this process. 

17 I am in charge of the residential products,

18 but my main drive is we have got a channel

19 right now between manufacturers, distributors,

20 contractors that is very confused.

21 And I just left a meeting

22 yesterday with 400 of them, and I didn't know
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1 what to tell them. I sat there and I showed

2 the picture of Washington, D.C. covered in red

3 tape.

4 (Laughter.)

5 And quite frankly, I assured them

6 that I was going to not be part of the problem

7 anymore, but be part of the solution. So, I

8 am here to try to bring this to resolution.

9 MEMBER FERNSTROM: So, good

10 morning.

11 I am Gary Fernstrom. My name tag

12 says I am representing the Pacific Gas &

13 Electric Company. When my nomination got sent

14 in for consideration for this Working Group,

15 I only had authority to represent PG&E, but,

16 in reality, now I am representing all of the

17 California investor-owned utilities. So, I

18 would like the record to show a correction to

19 that. Those are PG&E, the Southern California

20 Edison Company, San Diego Gas & Electric

21 Company, and the Southern California Gas

22 Company.
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1 As Harvey, I was a party to the

2 original negotiation that set this regional

3 standard arrangement in place. And I look

4 forward to working with you all to find an

5 amicable solution to a manner in which we can

6 assure compliance with the standard.

7 MEMBER ELLIS: Good morning.

8 My name is Ray Ellis. I am

9 General Manager for Lincoln Electric

10 Cooperative in Eureka, Montana. We are a real

11 small, member-owned, nonprofit utility. And

12 while I represent those people, kind of behind

13 me are about 915 other electric cooperatives

14 across the country that serve 75 percent of

15 the land mass of the United States.

16 And my concern here -- this is my

17 first go-round for anything like this -- so,

18 if I ask really unintelligent questions,

19 please be patient with me because I am trying

20 to figure out how this works.

21 But, certainly, my concern is the

22 cost that ends up at home to the people that
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1 I represent and the people that hired me to

2 run their utility. And that is about all I

3 can say.

4 Thanks.

5 MEMBER DORIA: Jordan Doria with

6 Ingersoll Rand. I manage energy efficiency

7 policy issues across Ingersoll Rand's business

8 units, and I am here today representing our

9 residential HVAC business as well as the

10 distributors and our network of dealers and

11 installers that we have.

12 And I just want to say that we

13 were involved in the negotiation on the

14 commercial certification last summer, and we

15 came out believing that it was a really

16 constructive process. And I think that makes

17 us very optimistic that we are going to be

18 able to find a resolution to this one because

19 it definitely needs to be put to bed.

20 MEMBER ROY: My name is Roy,

21 Goodman Manufacturing. I am an Engineering

22 Manager of Regulatory Affairs, and we are
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1 looking forward to participating in this

2 process and add some perspective from a

3 manufacturer and distributor's standpoint.

4 And we felt the previous

5 consensus, the negotiated process was very

6 helpful for the industry, and we look forward

7 to continue doing that for this residential

8 issue, because the January 1st, 2015 date is

9 quickly approaching. And we are looking

10 forward to working with all of you on that.

11 MEMBER WINNINGHAM: Hi. I am Dave

12 Winningham with Allied Air Enterprises,

13 representing Lennox International and all the

14 divisions associated. I am an Engineering

15 Manager at Allied, and look forward to working

16 with the group to come up with an amicable

17 solution.

18 Thank you.

19 MEMBER WHITE: I'm Chuck White

20 with Plumbing-Heating-Cooling

21 Contractors-National Association. I have been

22 with them for almost four years.
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1 Prior to that, I was a small

2 business contractor in South Bend, Indiana,

3 started at the wrong end of the shovel, worked

4 my way up to owning the business, handled all

5 kinds of product and equipment.

6 I come very strongly with the

7 contractor's point of view and what the

8 implications are to the guy who is on the

9 frontline doing this.

10 And, Mr. Sachs, in the interest of

11 energy efficiency, I am pretty sure we are

12 varying the speed of the blower running this

13 room and that is where your noise is coming

14 from when it unloads.

15 (Laughter.)

16 MEMBER HOURAHAN: Good morning.

17 I am Glenn Hourahan. I am with

18 the Air Conditioning Contractors of America. 

19 I am here to represent the interest of the

20 HVAC contractors who install, service, and

21 maintain the equipment that we are speaking

22 of, the equipment that is regulated by the
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1 rulemaking for the regional standards.

2 And so, the question is, how do we

3 properly enforce that rulemaking in a manner

4 that is fair and equitable and not being a

5 cost impediment to homeowners who are looking

6 to buy that equipment?

7 MEMBER SHEPHERD: I am Amy

8 Shepherd. I represent Air-Conditioning,

9 Heating, and Refrigeration Institute, or AHRI. 

10 I am a lawyer. So, I will get that out on the

11 table right away. And we represent the

12 interests of manufacturers in this industry.

13 I have a wide background working

14 on regulatory and compliance issues for a lot

15 of for-profit companies in a lot of different

16 regulated industries. So, I have a lot of

17 experience on how companies actually implement

18 compliance programs and the asset that that

19 can be to an enforcement program. So, I am

20 looking forward to discussing this issue and

21 bringing that expertise to the table.

22 MEMBER ROCKY: Good morning.
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1 Bryan Rocky, Johnson Controls,

2 currently Director of Residential Product

3 Management. I have been involved in this

4 industry for 35 years and a lot of activity,

5 going back with agencies over the last 25.

6 I couldn't say it much better than

7 John did. We have a lot of customers in our

8 chain, both factory branches and independent

9 distribution customers, that we don't know

10 what to tell them today of what is going to

11 happen in just a few months. And that is not

12 a good situation for anybody to be in.

13 So, I am very happy to be part of

14 this group and work towards coming up with a

15 solution that we can communicate to our

16 industry and our customers and our homeowners.

17 MEMBER PORTER: I am Steve Porter,

18 Vice President, Product Management, with

19 Johnstone Supply, and Co-Chair of Government

20 Affairs for HARDI, Heating, Air-Conditioning

21 & Refrigeration Distributors, representing all

22 members.
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1 MEMBER NOLL: Hi. My name is

2 Elizabeth Noll. I am with the Natural

3 Resources Defense Council. NRDC was party to

4 the regional standard back when it was

5 established.

6 And I look forward to helping see

7 this process through and come to a reasonable

8 solution.

9 MEMBER MEYERS: Good morning,

10 everyone.

11 Karen Meyers with Rheem

12 Manufacturing. I run the public policy issues

13 for Rheem at the corporate level. But, prior

14 to joining that, I was with our Air

15 Conditioning Division. I chaired the industry

16 group that worked on the regional standards at

17 the time.

18 And while I was with the Air

19 Conditioning Division, I served in a lot of

20 issues with logistics, pricing, and sales. 

21 So, I have a very good understanding of issues

22 that distributors and contractors face, and I
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1 am really looking forward to working on these

2 issues with this group for the rest of the

3 next two months.

4 Thank you.

5 MEMBER LATTANZI: Good morning.

6 My name is Matt Lattanzi. I am

7 with NORDYNE. I have been in the industry

8 approximately 20 years. Currently, I am the

9 Director of Product Management for NORDYNE. 

10 My key responsibilities include understanding

11 and making sure we are designing and

12 developing the right products to meet market

13 demands.

14 My two big concerns are the

15 uncertainty that the regional standards have

16 created and the amount of unanswered questions

17 that we still have. So, we are very much

18 looking forward to getting answers to those

19 questions.

20 I also share what I heard from

21 John Gibbons and Bryan Rocky with the amount

22 of confusion that is out in the marketplace;
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1 recently met with a lot of our customers, and

2 they are very confused and they are making

3 things up on their own. We definitely want to

4 get this resolved.

5 I guess my only comment is I wish

6 we had done it a little sooner. We are only

7 four months away. And again, that uncertainty

8 from a manufacturer's perspective is very

9 difficult to deal with.

10 And then, lastly, for Mr. Harvey

11 Sachs, I would like to thank you for pointing

12 out the hum. I didn't notice it until you

13 mentioned it, and now it is very top of mind.

14 (Laughter.)

15 So, again, we look forward to

16 participating.

17 MR. RAWALD: I am Doug Rawald, and

18 I am with the Department of Energy's Office of

19 General Counsel. I work in the Office of

20 Enforcement. So, I ought to thank Scott for

21 my job. I was hired after he left.

22 And I was not here for the
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1 previous go-around, the meeting on this issue. 

2 So, I am a new person to this issue.

3 I have been a lawyer for 12 years. 

4 My background has mostly been in criminal law. 

5 So, I know a lot about enforcing laws, and I

6 work here in the Department every day making

7 sure things are enforced and the tools we have

8 available. So, that is why I am here, to talk

9 about that perspective and what will work and

10 what will not work from the Department's point

11 of view.

12 So, if I can offer you guys some

13 thoughts on that, I do hope, Matt, that we

14 won't just give you answers, but you will work

15 with us to come up with the answers, because

16 that is the way to do it, is for all of us to

17 work together to get to the answers.

18 I will note, for those keeping

19 track of the list of attendees, there is at

20 least one member who is online, Dave

21 Hungerford. So, I will turn it over to allow

22 him to introduce himself.
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1 MEMBER HUNGERFORD: Hello. This

2 is David.

3 Wait a minute. I'm getting

4 feedback. Can you guys hear me?

5 MR. EISNER: Barely. Can you

6 speak up a little bit?

7 MEMBER HUNGERFORD: Okay. I'm

8 David Hungerford. I'm with the California

9 Energy Commission and also with Astra. I have

10 one background with appliance standards, and

11 I am currently responsible for the building

12 efficiency in the Research and Development

13 Division.

14 I'm glad to be here.

15 MR. EISNER: Thank you, Dave.

16 Let's start in the back of the

17 room with the first row.

18 MR. RAWALD: This is Doug Rawald. 

19 I'm going to jump in real quick.

20 For those keeping track, we have

21 one last member of the Committee who is not

22 here, nor on line. That is Charlie Harak from
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1 the National Consumer Law Center. He is on

2 vacation right now. And so, he didn't want to

3 interrupt that to talk to us right now,

4 understandably. So, he will be at the next

5 meeting of the group and he will be part of

6 future discussions.

7 MR. HURST: Hi, Neil.

8 I'm John Hurst with Lennox

9 International. I was on the Working Group

10 last year. This is a good process. A lot of

11 people have talked about confusion in the

12 marketplace. I hope we can work together on

13 simple solutions because I think that is going

14 to drive compliance.

15 So, I look forward to the process. 

16 It is good to be back.

17 MR. CALABRESE: I'm Dave Calabrese

18 with Daikin Corporation. And I have been

19 involved, of course, in this process and the

20 negotiations that led up to the regional

21 standards.

22 MR. McCRUDDEN: I'm Charlie
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1 McCrudden with the Air Conditioning

2 Contractors of America.

3 Mr. Lapato: Is this on now

4 (referring to microphone)?

5 My name is Dan Lapato, American

6 Public Gas Association. And I'm just here to

7 kind of observe the process itself.

8 Thank you.

9 MR. MELCHI: John Melchi with

10 Heating, Air-Conditioning & Refrigeration

11 Distributors, International, HARDI. I look

12 forward to participating in the process and

13 listening.

14 MR. SURRENA: I'm Don Surrena. 

15 I'm with the National Association of

16 Homebuilders. We are a Washington-based trade

17 association, representing more than 140,000

18 members involved in homebuilding, remodeling,

19 multi-family construction, property

20 management, subcontracting, design, housing

21 finance, building product manufacturing, and

22 all other aspects of residential light
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1 commercial construction.

2 Known as "the voice" of the

3 housing industry, NAHB is affiliated with more

4 than 800 state and local homebuilder

5 associations located in all 50 states and

6 Puerto Rico. NAHB's broader members construct

7 80 percent of the new housing units that are

8 projected to be built.

9 NAHB's Leading Home Suppliers

10 Council represents the nation's top

11 manufacturers who will be affected by all DOE

12 suggested approaches.

13 More than 14,000 firms that belong

14 NAHB Remodelers comprise one-fifth of all

15 firms that specify remodeling as a primary or

16 secondary business activity.

17 NAHB Multi-Family Council is

18 comprised of more than 1,000 builders,

19 developers, owners, and property managers of

20 all sizes and types of condominiums and rental

21 apartments.

22 Thus, NAHB's members clearly
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1 represent all aspects of the housing industry. 

2 Enforcement of the regional standard will

3 impact our members and potentially, through

4 reporting and/or recordkeeping requirements,

5 therefore, affecting housing affordability.

6 I look forward to this process.

7 MR. ROSENSTOCK: Good morning.

8 I'm Steve Rosenstock with the

9 Edison Electric Institute.

10 One quick question. In the July

11 16th notice, it said that Greg Olson of Xcel

12 Energy is on this committee, and I don't see

13 him here today and I didn't hear if he was

14 going to be on the call. So, he is still on

15 the committee?

16 MR. RAWALD: And this is Doug

17 Rawald.

18 That's my fault for not noting

19 that. So, Greg Olson the Department that he

20 has withdrawn his membership on the committee. 

21 So, he is not part of this.

22 MR. ROSENSTOCK: Okay. Again, as
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1 he represents the investment in utilities,

2 does that mean that you are looking for a

3 replacement for Mr. Olson?

4 MR. RAWALD: What the program has

5 told me -- and this is Doug Rawald again -- is

6 that they are not going to replace Mr. Olson,

7 but I can go back to them and discuss that

8 matter with them further before I give you a

9 definitive answer there.

10 MR. ROSENSTOCK: Okay. Thank you

11 very much.

12 And again, as an aside, because of

13 the short notice, I won't be able to attend

14 tomorrow's meeting and I have to leave early

15 today.

16 So, again, I look forward to the

17 proceedings as it will affect our member

18 companies, and I appreciate Gary's --

19 MR. EISNER: Do you want to make

20 any more comments on why you think it is or is

21 not important to replace him and who --

22 MR. ROSENSTOCK: I'm sorry?
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1 MR. EISNER: Do you want to make

2 any comments on why it would be good to

3 replace him or not to replace him? And do you

4 want to suggest anybody?

5 MR. ROSENSTOCK: Steve Rosenstock.

6 Yes. Since I was not aware of it

7 until just now, I don't have any replacements. 

8 Again, it is just a matter of, especially when

9 it comes to in terms of consensus, you know,

10 the number of people on the committee, it

11 could make a difference in terms of possible

12 consensus.

13 Gary will do an excellent job. 

14 But, again, just in case you need any sort of

15 balance, et cetera. You know, you had three

16 utility representatives; now you have two. It

17 is up to you in terms of the numbers.

18 Thank you.

19 MEMBER SACHS: Neil, this is

20 Harvey.

21 And while it may not be in my

22 interest group's narrow interest, one of the
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1 points to note would be that Gary is a great

2 guy, but he is not affected deeply in his

3 service territory by the regional issues, as

4 opposed to people in the Southwest and

5 Southeast.

6 MR. EISNER: Let me suggest this,

7 because it is brand-new information: we have

8 got a few hours to go before the end of the

9 day. I would just like to make sure Doug has

10 all the information he needs to bring back to

11 the program people. Give some thought to it. 

12 We can have this issue raised and discussed

13 again this afternoon, if necessary.

14 MEMBER FERNSTROM: So, this is

15 Gary Fernstrom, representing the California

16 views.

17 I would support replacing this

18 individual to the extent that perspective in

19 our negotiation.

20 MR. LIN: Paul Lin with the Regal21 Beloit Corporation. We are a manufacturer of

22 electric motors, just interested in seeing
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1 where this enforcement is going and how we can

2 support our customers.

3 MR. DENNIS: Keith Dennis with the

4 National Rural Electric Cooperative

5 Association. We represent 900 nonprofit

6 utilities, again, to cover 75 percent of the

7 land mass. We want to make sure that the

8 standards make sense for both rural

9 communities as well as the urban communities

10 that are probably more well-represented in the

11 group.

12 Thanks.

13 MR. EISNER: Did we get everybody

14 in the back?

15 MR. RAWALD: And just one more

16 bookkeeping note. So, for those of you that

17 read the actual notice, Goodman nominated Gary

18 Clark, and he is the official member of the

19 group. Anirrudh Roy is his nominated

20 alternate, and we will discuss alternates when

21 we get to the ground rules. But, for the

22 record, he is alternate here, voting on behalf
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1 of Gary Clark, if we take any votes.

2 MR. EISNER: And I would mention

3 for the people in the back is the public

4 notices that the Department put out states you

5 do have a right to participate. We have time

6 that we can set aside. But, as we talk about

7 the ground rules, the next item on our agenda,

8 we will also discuss whether we want to do

9 this more informally and how we might want to

10 do that. For example, letting you just raise

11 your hand if you would like to speak at a

12 particular time.

13 Okay. The people on the side here

14 I think are probably all guilty of working for

15 the Department of Energy in some way,

16 indirectly or directly.

17 MS. HARIHARAN: My name is Johanna

18 Hariharan. That's H-A-R-I-H-A-R-A-N. I am an

19 attorney with the General Counsel Office, and

20 I work on the appliance standards. So, I am

21 just here to observe today.

22 MR. STAS: Eric Stas, the DOE
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1 General Counsel's Office. I work on appliance

2 standards rulemakings, including the furnaces

3 CAC rule that has brought us here today. And

4 I am also observing.

5 MR. COHEN: Dan Cohen, General

6 Counsel's Office for DOE as well. And I can

7 say, although I have not worked in the

8 industry, when I showed up in this building in

9 2007, the very first day I was here one hour

10 when I had my first HVAC question come to me. 

11 And it was actually on the rulemaking in 2007

12 that was, then, remanded, which led to the

13 consensus agreement and the rulemaking that we

14 are now discussing today. So, this has been

15 my history.

16 MS. DEGITZ: I'm Laura Degitz. I

17 work for Navigant Consulting and support DOE

18 in certification, compliance, and rulemaking

19 issues.

20 MR. EISNER: Do you want to

21 introduce yourself, please?

22 MR. KRALKA: Alex Kralka.
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1 MR. FREEMAN: Jeremiah Freeman.

2 MR. EISNER: Court Reporter, do

3 you want to today? No? Okay.

4 I will say, on behalf of the court

5 reporter, you have got to be clear and make

6 sure your microphones are on when you are

7 speaking. Otherwise, he is going to be

8 intervening and raising his hand all the time.

9 And the other thing I would stress

10 is not having multiple people speak at the

11 same time. That will drive the court reporter

12 crazy, and we may be stuck here without a

13 court reporter.

14 And especially when people are

15 trying to participate via phone, we have got

16 to make sure we let that person get in, so all

17 the people on the phone can be heard.

18 I do want to note that I have been

19 told there are 12 others on the line who are

20 not members of the group. We will have a list

21 later on, rather than spending more time in

22 going through each of those. And as some of
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1 you know, that is going to change on and off

2 if people join us and people leave the line.

3 The other thing I want to mention

4 before we go on to our next topic is, if there

5 is any area in which you would like to have a

6 briefing before we start getting into the

7 substance of the rulemaking, it is not

8 inappropriate for you to ask for such a

9 briefing.

10 For example, if you need a

11 briefing on how FOIA works, the Freedom of

12 Information Act, with respect to information

13 that may be gathered under these rules, so

14 that you can participate more effectively, you

15 could decide now or you could decide later you

16 need it, as we get into the discussion.

17 And I raise this because I noted

18 it in the transcript of the public meeting

19 that was held a couple of years ago. Ask for

20 it. If you want something, if it is something

21 that you are willing to have DOE provide, they

22 can bring in an attorney who can talk about
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1 FOIA questions. If you want someone more

2 neutral, we can talk about who you might want

3 to have come in and talk about it.

4 This is true for other areas. If

5 you need briefings, for example, if you want

6 briefings from industry on how certain things

7 are done, we can ask who can effectively bring

8 people in to do a brief on how records are

9 kept, for example, or how information is

10 passed on through the chain that the product

11 passes before it is installed in someone's

12 house.

13 So, it is not inappropriate to

14 say, "Hey, before we even get into it, can we

15 get a briefing on how this works or how the

16 statute works or what we are required to do?"

17 So, again, any questions before we

18 move on?

19 (No response.)

20 Okay. And I teach part-time as an

21 adjunct professor. Fifty percent of the final

22 grade I give is based on the quantity and
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1 quality of the questions you ask. You cannot

2 possibly understand everything. So, don't

3 hesitate to let me know if you have a problem.

4 And by the way, mainly for

5 Harvey's benefit, I realize that I wasn't

6 introduced in terms of my background. I am an

7 attorney. And one of my jobs was to try to

8 help solve --

9 MEMBER HARRIS: Harvey is way

10 outnumbered.

11 (Laughter.)

12 MR. EISNER: Yes. No, I've

13 noticed that. And that is why I wanted to

14 make sure it was clear on the record, there is

15 one area where I can't be neutral.

16 And I also want to mention that I

17 was an attorney with the Department of

18 Transportation for many years in a position

19 similar to Dan's, where I oversaw the

20 regulatory activity of the Department. And

21 that is where my experience came from, working

22 inside the Department on negotiated
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1 rulemakings, but also constantly working on

2 other big issues, like the ones you are

3 facing. And I hope that my experience there

4 helps me to do a little bit better job, be a

5 little bit more understanding of how complex

6 these issues can be.

7 I will at times probably interrupt

8 and say, "Can somebody tell me what this is

9 all about?" For example, on the last

10 negotiated rulemaking I came to appreciate it. 

11 In fact, I like to point out to people when I

12 go into a 7-11-type store and want to get a

13 cold pack I have much more appreciation than

14 I had before for what goes into making one of

15 those units, how complex they are, and how

16 difficult it is to determine what the energy

17 efficiency is and when you measure it and what

18 equipment is installed on it. It doesn't mean

19 I want to pay more for the beer, but I

20 understand what is behind the technology.

21 (Laughter.)

22 So, let's start off, take a break
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1 in about a half-hour to 45 minutes. Let's

2 start off with the ground rules.

3 What we did, prior to this

4 meeting, is I asked Doug to circulate to you

5 the ground rules that were used in the last

6 negotiations. We don't have to use them. We

7 can do it in a different way. But, if we are

8 going to start off with something, I thought

9 that would be most appropriate because some of

10 you were members of that committee and agreed

11 to these, and you will be familiar with why or

12 why not they may be issues.

13 These ground rules, as I said

14 earlier, are going to establish the way we

15 will run the meeting, each of the meetings. 

16 It doesn't mean we can't change them. It

17 doesn't mean we can't adapt as we go along. 

18 But, going in, especially on issues like

19 consensus, we want to make sure there is full

20 understanding.

21 So, unless anybody has any

22 objection, I suggest if we can put a copy
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1 up -- we have a copy up already -- we can

2 start talking about these. If we want to

3 change things, obviously, the title of the

4 group and the first one and what the goal of

5 this particular group is, it is going to be

6 different from the commercial HVAC, et cetera,

7 rulemaking. But let's start off with that

8 one, unless someone wants to do it in a

9 different way, and talk about what the goal of

10 this group should be.

11 And what we will do, as there is

12 talk, I will get up, if necessary, and point

13 to words and things like that. If there is

14 any disagreement on the wording that is in the

15 document as it exists, we can work out that

16 wording now and make sure everybody is happy

17 with it.

18 So, what I would like to do, just

19 as I will do as we start talking about

20 substantive issues, is I don't want to

21 necessarily take a vote each time. When we

22 decide on what consensus is, I will simply
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1 say, "Does anybody object?", and see whether

2 we have to discuss it further.

3 MR. RAWALD: And this is Doug

4 Rawald.

5 Since we are talking about

6 something that is displayed on the wall, just

7 please be very careful and be as descriptive

8 as you can, because there will be a record,

9 and it is impossible to read and understand

10 what we talked about here unless we can

11 actually understand what we are talking about.

12 And what I mean is, if you are

13 going to talk about a word, say, "I want to

14 replace the word `and' with the word `the'." 

15 Like please be descriptive, so we can

16 understand and a person reading the record can

17 really know what happened here. This helps

18 with public transparency and also helps us

19 later on with understanding exactly what we

20 did in the course of this negotiation.

21 Thank you.

22 MR. EISNER: Again, do we simply
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1 want to change the name that is used or do we

2 want to do more? Do we want to add something

3 else?

4 MEMBER MEYERS: So, this is Karen

5 Meyers with Rheem.

6 First of all, we should change the

7 title to "Residential Regional Air8 Conditioning Enforcement Standards". Let's

9 say "Central Air-Conditioning," "Regional

10 Central Air-Conditioning Enforcement Standards

11 Working Group," and remove the word

12 "certification".

13 MR. RAWALD: And this is Doug

14 Rawald.

15 Putting actually "Standards

16 Enforcement" as opposed to "Enforcement

17 Standards".

18 MEMBER MEYERS: Okay.

19 MR. EISNER: Any comments?

20 Yes?

21 MR. McCRUDDEN: Charlie McCrudden

22 with the Air Conditioning Contractors of
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1 America.

2 Two comments. One is I don't know

3 if you can move your microphone up a bit,

4 because in the back it is kind of hard to hear

5 you.

6 MR. EISNER: I'll try and see if

7 that helps. Is that better?

8 MR. McCRUDDEN: Yes, that is.

9 And then, the second one is I

10 think we should make sure that it is clear

11 that this is for split-system central air12 conditioners and single-package air13 conditioners, because those are the only two

14 products that we are talking about here.

15 Yes, just put in

16 parentheses -- somewhere it should just

17 reference "split-system" and "single-package

18 central air-conditioners".

19 MEMBER LATTANZI: Charlie, this is

20 Matt Lattanzi at NORDYNE.

21 Is "single-package" on a national

22 standard, not a regional standard?
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1 MR. McCRUDDEN: No. It is the two

2 products that are subject to regional

3 standards are --

4 MEMBER LATTANZI: Oh, the

5 Southwest?

6 MR. McCRUDDEN: -- split-system --

7 yes.

8 MEMBER LATTANZI: I'm sorry. In

9 the Southwest?

10 MR. McCRUDDEN: Yes.

11 MEMBER LATTANZI: My mistake. I

12 had forgotten the Southwest.

13 MR. McCRUDDEN: It is easy. It is

14 only California, Arizona, Nevada, and New

15 Mexico.

16 MR. RAWALD: Right. This is Doug

17 Rawald.

18 This is for everyone following

19 along who don't understand. So, the regional

20 standards that we are talking about apply to

21 split-system air-conditioning, both in the

22 Southeast regions of America, where there are
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1 a number of states that are enumerated in the

2 CFR, as well as the Southwest region must have

3 a higher SEER level.

4 And there is an EER value required

5 for the Southwest region for single-package

6 air-conditioners. So, a slightly different

7 issue, but of importance as well for our

8 negotiations.

9 MR. EISNER: Any other comments?

10 (No response.)

11 Anybody disagree with this as a

12 title?

13 MR. RAWALD: When I see that

14 there, I see split-systems and single-package. 

15 I think "single-package" is probably the

16 industry term that people are familiar with.

17 And also, just remember, from a

18 regulatory point of view, we call them

19 "central air-conditioners" as opposed to "air20 conditioning". It is "air-conditioning

21 systems". So, I would prefer the word "air22 conditioners" because of our regulations.
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1 MR. EISNER: Does that title work

2 for everybody?

3 Okay. So, we have consensus on

4 that. We want to, then, put it in down here. 

5 Do we want to come up with a short title for

6 any purpose that everybody could agree to? Or

7 do we want to just use this?

8 Okay. We'll stick with this.

9 MR. RAWALD: I would be content

10 with calling this "The Regional Standard

11 Enforcement Working Group," if that works for

12 everybody. It is more of a mouthful, what we

13 have up there.

14 This is Doug Rawald.

15 MR. EISNER: Put that in

16 parentheses, and we will use it, and probably

17 do it down here. Is that okay with everybody? 

18 All right.

19 MEMBER MEYERS: Just one other

20 point. This is Karen Meyers with Rheem.

21 It is actually "package," not

22 "packaged," just to be clear. Thank you.
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1 MR. EISNER: Okay. Then, in No. 1

2 we can use the parenthetical heading.

3 The goal --

4 MR. RAWALD: And just to be clear

5 -- this is Doug Rawald -- so, "Residential

6 Regional Standards Enforcement Working Group"

7 because that's what we are. We are not

8 focused on the standards. We have no impact

9 on the actual standards, just the enforcement

10 of those standards.

11 MR. EISNER: Okay. Goal: in

12 good-faith, reach consensus. This is No. 1. 

13 Recommended DOE-regulated performance -- no,

14 we have to change there.

15 Okay. The final sentence. Any

16 comments, any suggestions for changing that?

17 MR. RAWALD: This is Doug Rawald.

18 I hate to jump into the statute

19 initially, as a lawyer, right? But our

20 statutory mandate from the Department's point

21 of view is that to initiate a rulemaking to

22 develop and implement an effective enforcement
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1 plan for regional standards. So, I would say

2 our objective here is to develop that

3 effective enforcement plan for regional

4 standards.

5 MEMBER DORIA: This is Jordan

6 Doria with Ingersoll Rand.

7 Maybe to ask a clarifying

8 question, we say "effective plan". My

9 interpretation of that is that a plan could

10 include both, I'll call them regulatory

11 elements as well as non-regulatory elements. 

12 Is that a correct interpretation?

13 MR. RAWALD: So, this is Doug

14 Rawald.

15 I guess it is open for us to

16 discuss. I mean, I think that there's lots of

17 room to discuss on what will make something an

18 effective enforcement plan, and there's a lot

19 of pieces in that.

20 MR. EISNER: Yes?

21 MR. McCRUDDEN: Charlie McCrudden

22 with Air Conditioning Contractors of America.
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1 And maybe this question is to

2 scope, which I think we are getting to later,

3 but what would potentially be outside of the

4 regulatory that would include plan or --

5 MR. RAWALD: Right. So, Charlie,

6 you are definitely putting the cart before the

7 horse.

8 MR. McCRUDDEN: Okay.

9 MR. RAWALD: So, we want to

10 establish the ground rules, which I think at

11 this point should be only open to the Working

12 Group members and not for the public comment,

13 while we are establishing the ground rules. 

14 And then, once they are established, we will

15 definitely get into scope and we will have

16 folks' opinions on that.

17 But, as far as establishing the

18 baseline objective for the ground rules, it

19 seems to be as broad as possible, so we all

20 know what we are looking at. And then, we can

21 get into kind of defining what our objectives

22 are later on in the discussion, if that works
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1 for Neil.

2 MR. EISNER: Well, it is what

3 works for you guys. What works for what ASRAC

4 has asked? Have they asked for a plan or have

5 they asked just for a proposed rule? And does

6 it matter?

7 MEMBER SACHS: Neil, this is

8 Harvey Sachs.

9 And I think it does matter. What

10 ASRAC has asked for, we may answer somewhat

11 different, but I think we are obligated to be

12 conscious.

13 MR. EISNER: Let's have some

14 comment, then, on a plan which could be

15 broader than a proposed rule. What would you,

16 the Working Group, like? Do you feel you can

17 get consensus on a rule without talking about

18 the plan that would envelope it? Or do you

19 think it would be easier to just work toward

20 developing a proposed rule?

21 MEMBER HARRIS: This is Scott

22 Harris.
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1 I think working towards a proposed

2 rule encompasses all the other things that

3 would lead to that rule. And the outcome here

4 should be, I think, advice to the Department

5 on its rulemaking. And so, we will discuss,

6 of necessity, how that enforcement would take

7 place, the plans, whatever else, but I think

8 the outcome here has to be a recommendation on

9 what the rules should be that the Department

10 should adopt.

11 MR. EISNER: That a very good

12 point, because from my perspective what you

13 might want to recommend that the agency do

14 that is not technically part of the rule of

15 text, the Group could agree, explain in the

16 preamble this or add this language to the

17 preamble.

18 And correct me if I'm wrong, but I

19 think in the last Working Group that some of

20 us worked on we did some of that. We did make

21 some suggestions for what should go in the

22 preamble. So that, doing a proposed rule
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1 would encompass that within its scope.

2 MR. RAWALD: Right. And this is

3 Doug Rawald.

4 So, the authority for ASRAC, as

5 negotiated in the meeting for ASRAC from June

6 6th, 2014, was that ASRAC would establish a

7 Working Group to come up with a regional

8 standard enforcement process for those

9 cooling-based regional standards coming

10 effective as of January 1st, 2015. So, that

11 is the language from ASRAC.

12 MEMBER SACHS: This is Harvey.

13 And just to keep things moving, I

14 think if we substitute the word "process," it

15 shows that we are honoring what they have

16 asked for and allows us to do a rule,

17 preamble, and anything else we darned well

18 please.

19 MR. EISNER: Everybody got that? 

20 That is in the second line of the sentence

21 starting off, "The goal of the Working Group

22 is...." Substitute "process" there.
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1 Can anybody online follow us in

2 this discussion?

3 MEMBER FERNSTROM: This is Gary,

4 representing the California IOUs with a

5 question. Am I correct in assuming that DOE

6 has a statutory requirement to achieve

7 enforcement? So, what this group is trying to

8 come up with is an amenable way for DOE to

9 achieve this required outcome?

10 MR. RAWALD: This is Doug Rawald.

11 The Department has a statutory

12 requirement after the promulgation of regional

13 standards to develop and enforce an effective

14 enforcement plan, as I just read. So, we were

15 supposed to do that quite a bit ago. But this

16 was, obviously, put on hold by other events.

17 So, we are having this negotiation

18 for the purpose of fulfilling that statutory

19 mandate. So, if this group comes with a rule,

20 a proposed rule, that's great. If it does

21 not, the Department will have to proceed with

22 a rule to meet our statutory requirement, if
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1 that answers your question.

2 MEMBER FERNSTROM: Thank you. It

3 does.

4 MR. EISNER: Any comments,

5 questions?

6 Yes?

7 MEMBER HOURAHAN: This is Glenn

8 Hourahan with ACCA.

9 I am concerned with the word

10 "process" and "plan" because, if there is a

11 rulemaking, that is very specific as to what

12 we are trying to come up with. And we in

13 industry could have multiple processes or

14 multiple plans on how we satisfy that

15 rulemaking, but try to identify using

16 "process" and "plan" in this definition might

17 be entailing that we are only looking and

18 moving toward one approach.

19 MR. EISNER: Other comments on

20 that?

21 MR. RAWALD: Yes. Glenn, this is

22 Doug Rawald.
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1 I am a little bit confused. So,

2 maybe you can give me a little more specific

3 examples of exactly what you are describing,

4 what the concern would be for the industry

5 about us. If we were to come up with an

6 effective enforcement process, this is meant

7 to be from the viewpoint of what can we do,

8 what kind of rule can the Department

9 promulgate that will make an effective

10 enforcement process. What would be the

11 concern from industry's point of view that we

12 would be now stopping other processes from

13 being put in place?

14 MEMBER FERNSTROM: Words have

15 meaning, and we are picking the words now. If

16 we are coming up with a recommended effective

17 process -- you didn't say "processes"; you

18 just said "process". So, to me, that means a

19 singular path, as opposed to I am more

20 comfortable if we were coming up with the

21 rulemaking.

22 MEMBER ROCKY: Bryan Rocky from
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1 Johnson Controls.

2 Glenn, not to disagree with you,

3 but I think, as a committee, we can present

4 and discuss multiple approaches. But I think

5 for what the ASRAC committee will be expecting

6 from us, it is one recommendation for their

7 consideration that can move forward to the

8 Department.

9 So, having a process doesn't

10 eliminate us from considering multiple

11 approaches, but I don't think we are going to

12 be able to present multiple things to the

13 ASRAC committee and have them pick one that we

14 think is the best or that they think is the

15 best.

16 MEMBER HARRIS: This is Scott

17 Harris.

18 Can I make a suggestion? Suppose

19 it read, "reach consensus on recommended rules

20 for effective enforcement of regional

21 standards". That is the outcome here. It is

22 rules. And any preamble and stuff, it is
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1 actually part of the rules. And so, I would

2 just say we are trying to come up with rules

3 for effective enforcement of the standards.

4 MR. EISNER: Discussion on rules?

5 MR. RAWALD: Glenn, how does that

6 address your issue?

7 MEMBER HOURAHAN: Fine with me.

8 MR. RAWALD: Okay.

9 MEMBER HOURAHAN: Thank you.

10 MR. RAWALD: From my point of

11 view, that seems to be okay, too.

12 Let me just confer with Dan to

13 make sure that, from his point of view, that

14 doesn't handicap them.

15 MR. COHEN: I would never disagree

16 with Scott when he was doing my performance

17 reviews.

18 (Laughter.)

19 But, as usual, he is prescient

20 because, in fact, actually, just before he

21 said that, I was going to chime-in and say the

22 statutory obligation is for us to issue a
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1 rule, right? Using that word seems to me to

2 be the key. That is the job we have to

3 accomplish.

4 MEMBER HARRIS: I would like to

5 note for the record you always disagreed with

6 me when I was doing your performance reviews.

7 (Laughter.)

8 And the fact you agree with me now

9 is rather stunning and I totally love it.

10 MR. RAWALD: So, I would note

11 that, from DOE's point of view, both the

12 lawyer and the lawyer's lawyer agree that that

13 would be good language.

14 MR. EISNER: Any objections to the

15 "rule"?

16 Tim?

17 MEMBER BALLO: Not necessarily an

18 objection. I just want to be clear that I

19 think rules encompasses also guidelines, which

20 I think we used in the Certification for

21 Commercial Equipment Work Group.

22 For example, that DOE wouldn't
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1 take certain actions within a certain time

2 period. Those weren't put into rules, but

3 they were sort of more informal guidance that

4 the agency agreed to adopt.

5 MR. EISNER: Okay. Does anybody

6 object to the use of the word "rule"?

7 Yes?

8 MEMBER ROY: My name is Roy,

9 Goodman.

10 Just an editorial comment. Maybe

11 you might want to add an "S" after "standard".

12 MR. EISNER: Which line? Where

13 are we?

14 MEMBER ROY: In the second line.

15 MR. EISNER: In the second line,

16 No. 1. That is consistent with up above.

17 Any objections to No. 1 as it is

18 worded?

19 MEMBER SHEPHERD: This is Amy

20 Shepherd from AHRI.

21 I just want to clarify that, if we

22 set the goal of this as a rule, I think there
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1 is going to be a lot of discussion about

2 things that the industry, that different

3 parties will do in a compliance aspect that

4 may not be articulated in the rule, but it can

5 enhance the process. And I don't want to do

6 anything that forecloses that discussion.

7 And then, my second point was,

8 because there is a statutory definition of

9 central air-conditioners, I just want to make

10 sure that, since we changed the title to be

11 the two specific product types, that we are

12 not creating any confusion through that, by

13 using that short reference there. I just want

14 to tee it up for discussion.

15 MR. RAWALD: So, Amy, is your

16 concern that using the shorthand "Residential

17 Regional Standards Enforcement" might be

18 confusing because of the --

19 MEMBER SHEPHERD: I just didn't

20 want to create any conflict between what we

21 did in the title which was discussed by those

22 two products. And so, as long as everybody
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1 agrees that we are consistent there in that,

2 we don't see any issues there, then that is

3 fine.

4 MR. EISNER: Do we want to add

5 "hereinafter," and then, we can use the short

6 title throughout if we want to? Will that --

7 MR. RAWALD: Right. That would be

8 very loyalty of us, if we were to put a

9 parenthetical with quotation marks around the

10 short term that we are using, and then,

11 everybody would assume -- that is quite fine.

12 MR. EISNER: If HARDI doesn't

13 object, it can't be a problem, can it?

14 MR. RAWALD: Right.

15 (Laughter.)

16 MEMBER GIBBONS: This is John

17 Gibbons from Carrier.

18 Before Scott made the

19 recommendation on the word "rules," I was

20 going to suggest "approach" or "framework". 

21 So, I guess my question for everybody is, are

22 we really developing a rule or are we
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1 suggesting a framework or an approach that

2 would become a rule?

3 MEMBER HARRIS: My understanding

4 of what the ASRAC expects is a proposed rule

5 that we would all agree to or have a consensus

6 to agree to and to suggest to the Department.

7 And as to the point about there

8 would be lots of ways to comply with the rule,

9 and you will actually have to discuss, you

10 certainly will have to discuss all of those

11 things to understand what rule makes sense, I

12 would say all of those discussions about how

13 you would manage to comply with any rule is

14 inherent in a discussion of what kind of a

15 rule makes sense.

16 MR. COHEN: A slightly final point

17 on that, and not to disagree with Scott, so I

18 don't think ASRAC or the Department expects

19 this committee to actually draft the rule. It

20 was referred to later, you will see -- and

21 they did this in the commercial certification

22 ground rules as well -- to come up with a term
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1 sheet basically of what a rule would look

2 like. And that would be sent to the

3 Department for the actual drafting of the rule

4 document.

5 So, the terms of what would be in

6 the rule I think gets to what you are

7 suggesting. But it is to inform the

8 Department's issuance of a rule, which is the

9 legal obligation.

10 MEMBER GIBBONS: Okay. This is

11 John, and I'm good with that.

12 MR. EISNER: Comment or question

13 in the back?

14 This should be "hereinafter". 

15 That is one word.

16 Everybody comfortable with No. 1

17 as written now?

18 MEMBER DORIA: Jordan Doria with

19 Ingersoll Rand.

20 Just a question. I think I am

21 fine with "rules," but we are saying that all

22 these rules would ultimately, then, be
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1 promulgated in a single actual rule, correct? 

2 There will not be multiple rulemakings to,

3 then, carry forward the rules?

4 MR. EISNER: Well, again, this

5 group has the authority to decide what it

6 wants to do. If you want one rule and you

7 want language in the preamble, you can make

8 recommendations on that.

9 If you want, as Dan said, you can

10 do the drafting of terms and the agency can

11 put it into rule language or you can draft the

12 rule language, if you think that is what you

13 need for consensus. I assume DOE would not

14 object.

15 MEMBER DORIA: Okay.

16 MR. RAWALD: Right. And, Jordan

17 -- this is Doug Rawald -- from DOE's point of

18 view, we would anticipate doing one rulemaking

19 to make the outputs out there.

20 MR. EISNER: No objections to No.

21 1?

22 (No response.)
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1 Let's go on to No. 2,

2 "participants". The first one is interests

3 represented.

4 Comments? Questions?

5 MR. RAWALD: And this is Doug

6 Rawald.

7 I know we have been going for

8 about an hour and a half now. I don't know if

9 it would be possible to take a break. Maybe

10 folks can sit down and look through the rules

11 real quick, make sure how they feel about

12 them. We might have a better discussion if

13 people can get a chance to read them for a few

14 minutes before we talk a little more.

15 MR. EISNER: That would be fine. 

16 Why don't we take a 15-minute break? Be back

17 at a quarter of.

18 (Whereupon, the foregoing matter

19 went off the record at 10:30 A.m. and went

20 back on the record at 10:45 a.m.)

21 MR. EISNER: Okay. Can we get

22 started again?
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1 All right. We are up to some of

2 the basic requirements about participation in

3 the process, who the participants are, when

4 you can have alternates, that sort of thing. 

5 There may be some issues in here. So, don't

6 go through them too quickly.

7 But let's start with the first

8 one, "interests represented". Anybody have

9 any objections to that?

10 (No response.)

11 All right. Do we want to vote on

12 this paragraph-by-paragraph or section-by13 section?

14 Yes, I would suggest we get

15 consensus on each subsection, and then, we can

16 go back and look at the whole thing and see if

17 our opinion has changed.

18 So, 2a, nobody has got a problem

19 with that?

20 (No response.)

21 All right, let's go to 2b,

22 "parties to the negotiations".
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1 Anybody have a problem?

2 (No response.)

3 Okay, c, "Working Group members".

4 MEMBER HOURAHAN: This is Glenn

5 Hourahan.

6 I didn't see in the document what

7 the representational requirements were,

8 because the last line says, "or ceases to

9 maintain the representational requirements".

10 MR. EISNER: I think the

11 representational requirements may refer partly

12 to g. You are expected to represent the

13 concerns of your interest group. Does

14 somebody see anything else in there besides

15 that?

16 So, if you go down to g. "Only

17 Working Group members or alternates have the

18 privilege of sitting at the negotiating table. 

19 Any party may speak from the floor during the

20 negotiations."

21 Whoops, I'm sorry, g. I am

22 reading the wrong thing.
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1 "Working Group members are

2 expected to represent the concerns of their

3 interest group."

4 Okay. So, if we can go back to

5 paragraph b? Okay, I'm sorry, it is c we were

6 on. "Ceases to maintain the representational

7 requirement". I assume that would mean if you

8 change jobs or no longer could represent the

9 people who are in the interest group.

10 Any problems?

11 (No response.)

12 Okay, d, "Alternates for Working

13 Group members".

14 MR. RAWALD: And, Neil, this is

15 Doug Rawald.

16 I will note that during the break

17 the folks from HARDI and also from ACCA came

18 to me and wanted to know, given a recent

19 presidential statement regarding the

20 possibility of a lobbyist being involved in

21 such subcommittees as this, whether they could

22 actually be, as a lobbyist, nominated as an
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1 alternate to a current member on the panel.

2 I told them that we will confer

3 with our general law colleagues, actually, the

4 woman who gave us the briefing this morning. 

5 And so, I have asked the question, and when we

6 have an answer, I will let the group know, so

7 we can take a stand on that.

8 MR. EISNER: All right. We can

9 always come back to this later when we find

10 out about that. But, as of right now, does

11 anybody have a problem with d?

12 (No response.)

13 Okay, e, "Additional interests". 

14 Any concerns?

15 (No response.)

16 All right, f, "Attendance and

17 participation at meetings".

18 MR. RAWALD: And, Neil, this is

19 Doug Rawald again.

20 If I could jump in, so there have

21 been at least two folks who have asked for a

22 replacement for Greg Olson from Xcel Energy,
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1 which, obviously, is part of an interest

2 represented in the group.

3 At this point the program has not

4 put someone forward. But, if we were to put

5 someone forward, I would view them as falling

6 under that category of someone that the group

7 would, then, approve of that person being

8 added to the group. So, that is the way I

9 would think it would make to proceed.

10 Does anyone have any opinion on

11 that? Does anyone agree with that?

12 So, technically, if we were to

13 find someone and we were agree that we would

14 replace Greg Olson, we would bring that person

15 to the group, and the group would, then, vote

16 and have reached consensus on, yes, allowing

17 that person to intervene at this point, given

18 the fact that we have started negotiations.

19 MR. EISNER: Does that also have

20 to be approved by the Secretary?

21 MR. RAWALD: So, I will talk to

22 Dan about that as well, and we will coordinate
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1 how we would put that person added.

2 MR. COHEN: This is Dan Cohen.

3 I had checked with the ethics

4 lawyers and the FACA lawyers about this. So,

5 technically, we don't even need the

6 committee's approval to do that because the

7 Secretary can put someone on the committee to

8 fill that role. But, I think, I mean, we

9 would ask, obviously.

10 MR. RAWALD: Right. So, my

11 question to the group would be, these ground

12 rules as written, because it is an interest

13 already represented, would not require that

14 person to come to be approved by us.

15 Would the group want that to be

16 part of these ground rules or would they not? 

17 Would they be okay with the fact that the

18 Secretary may add this person to replace Greg

19 Olson, and that is the way things would go

20 forward?

21 (No response.)

22 Okay. So, what we are saying we
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1 are comfortable with it as drafted, which is,

2 because an organizational interest is already

3 represented, we wouldn't have to have the

4 Working Group's approval to put him forward. 

5 And if the Secretary does decide to put

6 someone on the panel to replace Greg Olson, we

7 will do that, and that person would, then, be

8 caught up in what we have talked about.

9 MR. EISNER: I suspect one of the

10 reasons this is in the document is because, as

11 you are going through the negotiations, you

12 may identify an interest group that should be

13 at the table that nobody realized at the

14 beginning of the negotiations should be at the

15 table. I don't think that is necessarily the

16 issue here, but you want to be able to say we

17 really can't negotiate any further unless we

18 can bring in somebody who can speak for those

19 interest groups.

20 Okay, that brings us up to f(1),

21 "Attendance". Anybody have a problem with

22 (1)?
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1 (No response.)

2 Okay, (2), "Participation". "Only

3 Working Group members" -- this is one you have

4 got to think about -- "have the privilege of

5 sitting at the table. Any party may speak

6 from the floor during the negotiations. The

7 Working Group may limit discussion as needed."

8 We are basically saying that

9 people sitting in the back, we either want to

10 control it and say only at limited times

11 during the day or we want to let them come up

12 to the microphone and ask for permission to

13 speak every time they want to, or something in

14 between.

15 And again, we can change. If too

16 many people interrupt too often, we can do

17 something about it. My experience with the

18 last one -- it doesn't mean it should govern

19 here -- was it worked very well. We got lots

20 of very, very good information from people

21 during the discussions.

22 MEMBER SACHS: This is Harvey.
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1 I would just like to second that. 

2 I felt that the contributions from all in the

3 room were extremely important. I didn't think

4 it ever got out of hand. I think it is part

5 of building some trust in the community to

6 allow that openness until we get to the vote.

7 MR. EISNER: And that is a

8 valuable point. If you can accommodate that

9 kind of representation -- everybody can't be

10 at the table. The agency does the best it can

11 to get representatives of all the interests. 

12 But when people know they can come to the

13 meeting or they can get on the phone and they

14 can be heard at anytime, it is very valuable.

15 MEMBER HARRIS: This is Scott

16 Harris.

17 I agree; the more open the

18 process, the better.

19 MR. EISNER: Okay. Any

20 objections?

21 MR. RAWALD: This is Doug Rawald.

22 So, I guess my question would be,
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1 do we want to create some sort of more

2 organization to the approach? In other words,

3 do we want to have initial discussion be among

4 the folks at the table, and then, open up to

5 public comment, or to consistently allow folks

6 to walk up to the microphone and be involved

7 in it?

8 And I don't have a preference

9 either way at the moment. I just want to put

10 out there some different ideas for folks to

11 consider.

12 MEMBER SACHS: This is Harvey.

13 And I am a strong believer in

14 creative ambiguity. I don't think this needs

15 to be addressed.

16 (Laughter.)

17 MR. EISNER: Again, I would say

18 from my past experience that the people who

19 sat in the back respected the fact that they

20 weren't at the table. They didn't just come

21 in and jump in whenever they wanted to. They

22 waited until they were recognized. It was
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1 done in a very orderly fashion and a very

2 positive thing.

3 Okay, nobody has a problem with

4 this?

5 (No response.)

6 The next one, g, "Constituents'

7 interest," also an important one. I think we

8 have talked about this. You are expected to

9 represent the concerns of the interest group,

10 to ensure any agreement developed is

11 acceptable.

12 Does anybody have problems with

13 the language as it is currently drafted?

14 (No response.)

15 Okay, hearing no objection, we

16 have gone through all of (2). Do we have

17 consensus on it? Anybody object to a

18 consensus, unanimous consensus?

19 (No response.)

20 Okay, now we get to the big one,

21 "Decisionmaking. The Working Group will

22 operate by consensus, which for these purposes
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1 means no more than two negative votes."

2 MEMBER DORIA: This is Jordan

3 Doria of Ingersoll Rand.

4 I think this gets to the point on

5 -- well, before we get into all the sort of

6 details of this, I think to answer it, we also

7 need to have some line of sight into how many

8 people are ultimately going to be on the

9 committee, which is a little bit in flux, at

10 least for this one question as to a

11 replacement for the representative of Xcel.

12 So, I just sort of put that out

13 there, that I think that may be relevant. I

14 don't know if we are in a position to handicap

15 the likelihood of a replacement at this time,

16 but it would be good to know that.

17 MR. RAWALD: Jordan, this is Doug

18 Rawald.

19 So, the program has previously

20 decided they would not replace that person. 

21 So, we have gone back and asked the question,

22 given the fact that there is at least one
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1 member of the public who has asked us to

2 consider it further. So, I guess right now we

3 would proceed with the idea that we are not

4 replacing that person, but if we do, then that

5 person will be added. That is the current

6 status of things.

7 So, it would be one extra person. 

8 That may change the numbers in someone's mind

9 about how they want to consider interests and

10 those kinds of things, when looking at the

11 numbers for consensus.

12 What I would say is this

13 particular provision is not meant to be in any

14 way recommended language from the Department

15 as far as how the voting will go. It is what

16 we have done in the last round that folks were

17 involved in.

18 So, we are open to a lot of

19 discussion on this. I think it is a very

20 important provision, and I think everyone

21 should really think about what they think is

22 the best way to go with requiring consensus in
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1 this particular context of this rulemaking.

2 MEMBER HARRIS: So, this is Scott.

3 I have done a lot of these things

4 out of the DOE context. And I don't believe

5 in defining consensus, because when you define

6 consensus, actually, you are then voting. And

7 then, that is not a consensus process. I

8 believe in ambiguity occasionally as well. 

9 And I think we just leave the word "consensus"

10 and we see what we think that means over time.

11 MR. EISNER: Other comments? 

12 Other thoughts?

13 MEMBER FERNSTROM: Well, this is

14 Gary.

15 I think being vague about it is

16 problematic because, then, it is hard to reach

17 agreement in the Working Group on

18 recommendations we would like to make.

19 From my prior experience on two of

20 these Working Groups, Transformers and

21 Commercial Industrial Pumps, we had two

22 different experiences.
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1 Transformers, consensus was deemed

2 to be 100 percent. And to the dismay of many

3 on the Working Group, one special interest

4 group blocked consensus, and we wound up with

5 less-than-a-satisfactory outcome.

6 On the Pumps Working Group, I

7 can't recall whether it was two or three, but

8 we chose a number such that one special

9 interest group could not block moving forward

10 with a recommendation, and it would take more

11 than that from any particular lobby area in

12 order to block agreement.

13 So, I think we should define that,

14 and I think the number ought to be three and

15 not two. But that is just my opinion from my

16 interest group.

17 MR. COHEN: This is Dan Cohen.

18 Just one quick thing. Silence in

19 this instance is not ambiguous because the

20 Negotiated Rulemaking Act defines consensus as

21 unanimity unless the committee agrees to

22 something different. So, yes.
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1 MEMBER HARRIS: Then, I go with

2 three, too.

3 (Laughter.)

4 MR. EISNER: Yes?

5 MEMBER FERNSTROM: Now this is

6 Gary.

7 That is, indeed, ambiguous,

8 "three, too".

9 (Laughter.)

10 MR. HURST: Are we permitted to

11 speak now?

12 MR. EISNER: Yes.

13 MR. HURST: Okay. Is there any

14 issue with the number changing from Working

15 Group to Working Group? I know last time

16 around or last summer for the Working Group

17 that we defined consensus as all but two, I

18 think. Does it matter Working Group to

19 Working Group that it is inconsistent?

20 John Hurst with Lennox. I'm

21 sorry.

22 MR. RAWALD: And this is Doug
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1 Rawald.

2 This is the fourth one we have

3 going on, and the three previous ones have all

4 had different decisions about consensus.

5 MR. HURST: Okay.

6 MR. RAWALD: So, there is no

7 precedent value about that. It is what will

8 work the most for this group in the context of

9 this rulemaking.

10 MR. HURST: Okay. Thanks for the

11 clarification.

12 MR. EISNER: Let me take a step

13 back, as the neutral part of the talk, of what

14 you get here. I don't experience it being

15 whether there are 24 or 25 people on the

16 Working Group, whether you get 24 votes, 23,

17 25. It is really who can stop something from

18 going through.

19 If you had, for example, one

20 public interest group here or you had four

21 public interest groups here, you want to know

22 whether you want to let them block something. 
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1 You may need to say it takes four negative

2 votes or it takes one negative vote or it

3 takes three negative votes. If you had three

4 people representing another part of the

5 industry, the same thing there.

6 People think of it in terms of

7 what you need to block. The other side of

8 whether you want to consider it from a block

9 perspective is whether you want unanimity on

10 every issue.

11 If you think that you are never

12 going to get unanimity on every issue, you

13 need to think about that at the beginning of

14 the process because it determines whether you

15 want to spend time going through negotiations

16 where you know you are always going to have

17 problems with one or two probably.

18 MEMBER SACHS: This is Harvey with

19 a question for Doug and the Department.

20 In The Federal Register, with the

21 list of representatives that selected members,

22 it doesn't say whether DOE representatives and
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1 the ASRAC representative are voting members or

2 not. And I think that, if we are going to

3 have something that is not unanimous, it

4 really actually matters whether these are

5 voting members.

6 MR. RAWALD: Right. So, my

7 understanding is that we are voting members. 

8 And I will have to go back and look at the

9 notice again and confer with Dan. But that is

10 my understanding, is that the two ASRAC

11 members, Dave Hungerford and Scott Harris, and

12 me as a member of DOE, are all voting members

13 in this.

14 And I think that is important

15 because, if the Department is not voting in

16 it, then, really, what would be the effect of

17 what we were advising and including the

18 Department's ideas as far as what the

19 Department is going to do?

20 MEMBER ROCKY: Bryan Rocky from

21 Johnson Controls.

22 So, Harvey, again, it says "other
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1 selected members" on The Federal Register

2 note. To me, that "other" means that we are

3 joining the three that are listed above.

4 MEMBER SACHS: Good, and thank

5 you. In that sense, although this group is a

6 little bit smaller, I think, than the

7 commercial group last summer, I think that

8 that consensus means all but two negative

9 votes was a good working model, and we might

10 start with that. It certainly forced me to

11 think real hard before I voted no.

12 MR. RAWALD: Harvey, so given your

13 past experience, it might be helpful. Was

14 there anything about having a two-member

15 requirement that you thought, "Oh, I really

16 wish we didn't have this." because of that

17 experience?

18 MEMBER SACHS: No.

19 MEMBER BALLO: This is Tim Ballo

20 with Earthjustice.

21 I just want to second Harvey's

22 support for retaining the two-member
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1 requirement from the last Working Group,

2 although I am not wedded to two. It could be

3 three.

4 And one of the reasons I think it

5 was really useful -- and this goes back to

6 Washington being kind of an ugly town and this

7 being a sausage-making process -- but, you

8 know, for someone to strenuously object to a

9 certain provision that they could never agree

10 to without derailing the entire process, and

11 with knowledge that will not derail the entire

12 process, it affords someone the luxury of

13 objecting on principle without screwing things

14 up for everybody else.

15 (Laughter.)

16 MEMBER SACHS: No, that is the way

17 I use it.

18 MEMBER HARRIS: My laughter does

19 not in any way signify that I disagree. It is

20 a comment on Washington, D.C.

21 MR. RAWALD: And that was Scott

22 Harris.
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1 This is Doug Rawald.

2 So, I would say that we appreciate

3 your candor. I mean, that is a very candid

4 comment.

5 So, there is some need for some

6 people to save face for their industry groups,

7 but they may want to have a resolution that

8 works and some clarity, even though the

9 clarity isn't what they want. And so, knowing

10 that their objection will be good for their

11 interests, but also will ultimately help

12 resolve the process, that may be something

13 that is important to them.

14 MEMBER HARRIS: This is Scott

15 Harris again.

16 The reason I had suggested or

17 agreed with Gary that three might be better

18 than two is that I think in a process like

19 this it is best if one very narrow point of

20 view can't derail the whole thing. And I

21 think, if you take a look around the table and

22 the various interests represented, many of us
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1 have views in common or interest in common. 

2 And I just think, if you have three rather

3 than two, while it doesn't sound like a big

4 difference, it requires at least I think two

5 different perspectives to stop the process

6 from moving forward or makes it more likely

7 you will have two different perspectives,

8 rather than two companies with perhaps exactly

9 the same interest and derail the whole

10 process, not to focus on companies or two

11 interest groups, or whatever.

12 And so, I think three gives you,

13 out of this group, gives you a better sense of

14 reaching what is truly the idea of consensus,

15 which I don't believe, statutes to the

16 contrary notwithstanding, I don't believe

17 consensus means unanimity. I believe

18 unanimity means unanimity.

19 MEMBER FERNSTROM: So, this is

20 Gary, representing the California IOUs.

21 And I strongly support Scott. To

22 go back to the Pumps Working Group, which I'm
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1 familiar with, one of the issues there was

2 whether or not circulator pumps should be in

3 the scope of regulations or not.

4 And for those of you that don't

5 know, circulator pumps are these little, tiny

6 pumps that circulate domestic hot water, so

7 you can have instant hot water at the tap or

8 circulate hot or cold water through the floor,

9 so you can have radiant heating systems.

10 And the energy-efficiency lobby

11 generally wanted to address circulator pumps

12 because it represented about two-thirds or

13 more than half of the energy use of pumps all

14 together. However, it would have been

15 possible, had a couple of circulator pump

16 manufacturers not wanted to deal with that,

17 for them to derail that with two votes. With

18 three votes, less likely because it is less

19 likely that that one special interest could

20 prevail.

21 So, I think three to derail is an

22 important number. And we have that same issue
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1 with the interests of people in this room.

2 MEMBER WHITE: This is Chuck

3 White.

4 Speaking as an interest group that

5 probably is only two members of the committee

6 -- the contractors I think are only two chairs

7 here -- I don't believe that we are talking

8 about unanimity in the consensus. I think

9 that is correct.

10 Two votes or three votes doesn't

11 really help the two-person representation. 

12 Personally, I think it is incumbent upon us,

13 if we feel strongly about something, to make

14 our position clear, and we have to be pretty

15 well-founded to be able to explain ourselves

16 and convince others of the need that we face. 

17 And if we can't do that, then it has to go

18 forward in its normal process.

19 Two or three votes either way

20 doesn't really make a difference to me. But

21 I don't think we are talking about unanimity. 

22 I don't think we want to go that route.
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1 MR. RAWALD: Chuck, this is Doug

2 Rawald.

3 So, what I hear you saying is that

4 you think there's more onus on the members to

5 be persuasive in their position if they have

6 the possibility of two votes causing there to

7 be or three votes causing the vote to not be

8 a consensus?

9 MEMBER WHITE: This is Chuck White

10 again.

11 Yes, and I think you could get to

12 the point where somebody just sits back

13 because I know I've got enough to block it. 

14 So, I don't have to share, come forth with all

15 the information, not saying that that would

16 happen, but it could.

17 And if I feel strongly that this

18 is a contractor issue, then I need to make you

19 aware, and I should have good reasons of why

20 that is, and not just be doing something

21 because I find it inconvenient or it is a way

22 to polish my badge, or whatever aspect of it
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1 it is. It has to be something that is truly

2 important and makes a difference to my

3 constituents.

4 MEMBER MEYERS: So, this is Karen

5 from Rheem.

6 The way this is worded, it says,

7 "means no more than two negative votes". So,

8 that means you have to have three votes, is

9 that right?

10 MR. EISNER: If you have three

11 votes, it doesn't pass.

12 MEMBER MEYERS: Right. So, it is

13 still the three that I think everyone wants,

14 or some of the committee members are

15 advocating for. So, you have to have three

16 votes for it not to go forward. Does that

17 address that? Or do you want it to be four

18 votes to not go forward?

19 MEMBER FERNSTROM: No. This is

20 Gary.

21 Thank you so much, Karen, for

22 pointing that out. What I wanted was three
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1 votes to block and two votes for consensus

2 means you need three votes to block. So, I am

3 in agreement, if I understand it right, with

4 the current wording.

5 MR. EISNER: The typical process

6 would be you would discuss a section. I would

7 say, "Do we have any objections?" If you say

8 it is three to block, three people have to

9 raise their hands. If you say it is two to

10 block, two have to raise their hands, and we

11 can't go forward until we resolve those

12 concerns.

13 Understand, and again, two worked

14 very well. I think a lot of people agree,

15 maybe everybody agreed that was in the last

16 negotiated rulemaking, two worked very well.

17 But two means that in every

18 instance at least one of those two may be

19 getting voted down. So, that could cause

20 problems. "Well, I keep losing this, and I'm

21 not getting anything I want." So, you have to

22 remember that.
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1 I think it worked very, very well

2 because everybody around the room didn't want

3 that to happen. Almost every vote -- and Dan

4 left; oh, no, Dan is still here. Dan may be

5 able to correct me. We had two as the number. 

6 We probably addressed in the neighborhood of

7 200-plus separate issues on which we took a

8 vote. Karen, you remember; you guys remember. 

9 I think we had only two or three in which we

10 didn't have unanimity, absolute consensus

11 around the table.

12 The process worked very well

13 because the people wanted it to work very

14 well. They didn't want to keep shutting out

15 one interest.

16 All right, I could be very candid

17 about it. The government is an interest by

18 itself. The government could say no to every

19 one of them, and you guys could keep passing

20 one after another. You don't want that. That

21 won't work for you in the end. Because if you

22 vote on 50 issues and they lose in every one
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1 of them, do you think they are going to go

2 back and recommend to the Secretary that the

3 Secretary approve the final rule, the proposed

4 rule?

5 So, just remember what it means. 

6 That is why I said it is not a matter of

7 whether you have 24 in favor or 25 in favor. 

8 It is how many people raise their hand and say

9 no and what they can block.

10 Like you said, there are two

11 people from your interest. Both of you could

12 say no. You will lose some. But, if you keep

13 losing every one, you may not want to stay at

14 the table.

15 So, there are arguments that are

16 very, very subtle. It really depends on what

17 your objective is.

18 People were worried in this last

19 negotiation. They wanted to make sure that

20 you needed more than two votes to block it,

21 and they never had a problem with it. In

22 fact, one of the issues was the kind of issue
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1 that Tim was talking about where the two

2 people wanted to make a point. They didn't

3 want to stop it from going forward. It was

4 the only time when you got two votes, and

5 then, there were a couple I think with one

6 vote.

7 MEMBER FERNSTROM: So, this is

8 Gary again.

9 Just kind of assessing where we

10 are, it seems like there is a high level of

11 agreement that consensus ought not to be 100

12 percent. It ought to be something less than

13 that.

14 And if I understood Karen right,

15 the recommendation that is on the screen now

16 is two does not prevent consensus; three would

17 block consensus. And I'm okay with that.

18 MR. EISNER: So, we would keep the

19 number at two?

20 MR. RAWALD: And this is Doug

21 Rawald.

22 Gary, a couple of things. One,
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1 what is on the board is not a recommendation. 

2 It was what was past practice. But it seems

3 to be recommended, at least from a couple of

4 folks we have heard from.

5 We have been hearing a lot from

6 people that are the usual suspects in these

7 meetings, including me, who is a big talker. 

8 And I do want to invite those people who have

9 not spoken or who are not typically

10 comfortable in this environment to at least

11 ask a question or voice your opinion, if you

12 have one. I don't want you to feel like

13 you're being pushed into this.

14 This is very important. And so,

15 you definitely can take some time to think

16 about it and talk about it some more. So,

17 yes.

18 MEMBER PORTER: Steve Porter,

19 representing HARDI.

20 Since I am the only one

21 representing the distribution, I would like

22 three votes.
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1 Thank you.

2 (Laughter.)

3 MR. RAWALD: You are saying you

4 would like your vote to count three times? Is

5 that what you are saying?

6 MEMBER NOLL: This is Elizabeth

7 with NRDC.

8 So, this is my first energy

9 rulemaking, and I guess a question. To what

10 extent would the dissenting opinions be

11 recorded? I appreciate that the Department is

12 here. So, you would at least be heard.

13 And maybe this comes later on what

14 are you agreeing to in terms of, well, to two

15 dissenting opinions are recorded and we still

16 move forward. Then, you are all committing to

17 that. Is it at least on record what that

18 perspective is?

19 MR. EISNER: The court reporter is

20 keeping a complete record.

21 MEMBER NOLL: Okay.

22 MR. EISNER: What we did in the
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1 last one -- and I would assume, unless people

2 wanted to do it in a different way. This may

3 be a little different. We may not have the

4 breakdown into the number of issues we had

5 where we were voting on details for each rule,

6 like whether filters counted when you were

7 doing something.

8 But we recorded the votes. It

9 would say unanimous or it would say one

10 negative. And I cannot remember -- Dan, maybe

11 you remember or some of the others remember --

12 whether we recorded who was the negative, who

13 were the negative votes.

14 But I think the written document,

15 written record we kept beyond the court

16 reporter's transcript at least said there were

17 one or two negative votes.

18 MR. RAWALD: This is Doug Rawald.

19 So, the options are pretty open

20 here because we are making the rules. And so,

21 one thing you can keep in mind -- and we will

22 talk about this later -- is that Neil will
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1 present a report at the end of this. And so,

2 if there is a significant minority opinion

3 that has been voted down, we have a

4 requirement, a ground rule that that minority

5 be presented to ASRAC, in addition to the

6 majority that was what was passed. I mean,

7 that could be a ground rule.

8 MR. EISNER: As a matter of fact,

9 that is the way we recorded it.

10 MR. RAWALD: Yes.

11 MR. EISNER: The report to ASRAC

12 said there was one negative vote on this one

13 or there were two negative votes on this one,

14 but it passed. If there were three, it

15 wouldn't have been in --

16 MR. RAWALD: But what I hear

17 Elizabeth saying is --

18 MR. EISNER: We made that on the

19 part of the parties, but we did not give a

20 position because usually the position was

21 clear that they objected to the standard; they

22 objected to including filters in the measure
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1 or not including filters in the measure.

2 Yes?

3 MEMBER ROCKY: Bryan Rocky,

4 Johnson Controls.

5 So, one of the things that comes

6 to my mind on this is not so much the vote

7 process, but when we talk about Section (4),

8 Item d, agreement, no challenge, which we have

9 not talked about, the text in there talks

10 about individuals agreeing not to take a

11 position "unless they have previously

12 expressed dissenting views".

13 And so, we are going to get into

14 this discussion again relative to that. So,

15 I think it is going to be important that, if

16 you do have a dissenting view, that that needs

17 to be identified in the record, unless we

18 change the wording on Section (4)d as we come

19 up to it. It has to be identified who has

20 that dissenting view and what that view is.

21 MR. EISNER: And again, the court

22 reporter is getting it.
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1 MEMBER HOURAHAN: Are you saying,

2 Rocky, then that is forcing people to vote no

3 when they might have been willing to go along,

4 because they have to get their dissenting view

5 on record?

6 MEMBER ROCKY: I think, Glenn --

7 this is Bryan Rocky -- I think this is going

8 to be an important discussion at certain

9 points when someone has a very strong negative

10 view of what we have got, and it is overridden

11 by the community, by the group, with the two

12 negative votes. It doesn't block it, but it

13 is something that that individual feels very,

14 very strongly about.

15 The way Section (4)d states, you

16 have no recourse unless you have expressed

17 that in the committee as an individual later

18 on. So, it does become important to identify

19 that.

20 MEMBER WHITE: This is Chuck

21 White.

22 I think we are here in good faith. 
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1 And if you do have something you really feel

2 strongly about, you can't sit on it and, then,

3 come back later and say, "I didn't like that. 

4 I wanted chocolate ice cream, and they didn't

5 have any." You've got to speak up now. You

6 can't sit at this table and nod your head, and

7 then, go get on the phone and say, "We've got

8 to kill this." Now is the time to have that

9 discussion.

10 MEMBER SACHS: Rocky, this is

11 Harvey.

12 Bryan, your comment ties back to

13 Elizabeth's in the sense that I am not sure

14 that expressing a dissenting view is

15 necessarily equivalent to voting no. We have

16 these other mechanisms. So, I agree it is an

17 important point, but I think that is a subset

18 of what dissenting view means.

19 MEMBER ROCKY: This is Bryan.

20 So, I guess I read that is why we

21 are talking about ground rules now.

22 MEMBER SACHS: Yes.
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1 MEMBER ROCKY: Because if the view

2 is that -- and I actually agree with what

3 Chuck said. Bring it up. If you have got an

4 issue, we want to work together and not sit

5 back in the weeds and later on throw hand

6 grenades out on the table. We want to talk

7 about it and we want to bring it forward.

8 But we are going to have to talk

9 about Section (4)d and what that means coming

10 up.

11 MR. EISNER: You really want to

12 bring it up early, because everybody may be

13 able to fix it for you without harming their

14 position, either. You don't want to wait

15 until later to bring up, "I could have lived

16 with that. I didn't know that was a problem."

17 MEMBER ROCKY: So, again, this is

18 Bryan.

19 So, just relative to this, I am

20 all in favor of the discussion we have had. 

21 Two negative votes means the committee carries

22 on; three to block. That is 10 percent of our
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1 voting members right now. That allows you to

2 take a position and move forward, but you are

3 still working within the group.

4 MR. HURST: I'm John Hurst with

5 Lennox.

6 I was just going to say I don't

7 think the votes were actually recorded by name

8 and by entity last time, but it is very clear,

9 if you go back and read the transcript, who

10 had a dissenting view. So, you know, the way

11 I look at it is you don't necessarily have to,

12 because if you read the transcript, it was

13 very apparent and people weren't shy.

14 MR. EISNER: Yes?

15 MR. SURRENA: Don Surrena,

16 National Association of Homebuilders.

17 In reading this paragraph, it

18 states that these are votes by the members at

19 the meeting. So, if you don't have all of

20 your members at the meeting, are they

21 considered at the meeting if they are on the

22 phone?
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1 MR. EISNER: Yes.

2 MR. RAWALD: Yes.

3 MR. SURRENA: So, if there are

4 three or four members who don't make the call

5 or can't be at the meeting, the number stays

6 the same, but your percentages change

7 dramatically.

8 MR. EISNER: Yes, but people can

9 send alternates.

10 Other discussion?

11 (No response.)

12 All right. We seem to have some

13 thought about two.

14 Anybody object to two? So, in

15 other words, leaving it as it is now?

16 (No response.)

17 No objection? Okay, let's go on

18 to the next section.

19 MEMBER HOURAHAN: Before we go to

20 the next section -- this is Glenn Hourahan --

21 the gentleman who was just up brought up a

22 question, an inquiry that came to my mind. 
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1 So, we can have alternates. Can we also have

2 proxies? That is not addressed in this

3 document. Am I able to assign my -- I am not

4 able to make the meeting. I don't have an

5 alternate, say. Am I able to assign someone

6 on the committee to vote for me?

7 MR. EISNER: Why would you not

8 send an alternate? Your alternate is also

9 unavailable?

10 MEMBER HOURAHAN: Perhaps.

11 MR. EISNER: I don't know how you

12 -- I have never heard of that because of the

13 alternates.

14 MR. COHEN: So, we haven't

15 permitted proxies in the past, in part,

16 because of that grouping issue. I can go

17 around and gather up proxies and kind of vote

18 four, five, or six votes at one time.

19 MR. RAWALD: This is Doug Rawald.

20 I was trying to think. I thought,

21 Gary, at some point in the pumps there was a

22 proxy given to the facilitator. That didn't
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1 happen? I thought that did happen, actually,

2 for some reason. I thought possibly Steve

3 Rosenstock had given a proxy to Doug Brookman,

4 and he is not here anymore.

5 MR. EISNER: Technically, a proxy

6 is someone else who is there who has got a

7 vote. You are representing slightly different

8 interests. You can't necessarily respond

9 effectively to the information that is brought

10 out in the debate. So, for that reason, I

11 suspect that is why they didn't want one

12 person to be able to collect proxies as

13 opposed to having alternates come in by phone.

14 MEMBER HOURAHAN: Thank you.

15 MR. EISNER: There are ways to

16 handle this. We generally -- and we are going

17 to talk about it this afternoon -- are going

18 to identify what we are going to discuss and

19 when we are going to discuss it. So, if you

20 can't make a meeting and you know you can't

21 make a meeting, and your alternate can't make

22 a meeting, there is always the possibility of
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1 asking the group to postpone discussion of

2 that particular issue until you can be at the

3 meeting.

4 MR. RAWALD: And this is Doug from

5 DOE.

6 The voting is important, but also

7 the discussion is extremely important for our

8 purposes of making the rule. And so, having

9 a proxy, that eliminates that ability to

10 actually have a discussion about why you want

11 to vote a particular way.

12 And so, that is why I think, from

13 my point of view, without having talked to the

14 Department or conferred, I would recommend

15 against having a proxy process, because I

16 think having that discussion is so important

17 to what we do when we make rules.

18 MEMBER DORIA: This is Jordan

19 Doria with Ingersoll Rand.

20 I support the two as it is worded

21 currently. The question I would have is I

22 think all of us here are charged, obviously,
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1 with making decisions for our respective

2 organizations. But I think there could

3 certainly be instances where we might need to

4 go back and confer with various

5 constituencies. So, that gets you to the

6 question of, do you need a vote to have a

7 vote, right? And would you need to, then,

8 apply the same strictures to saying, well, we

9 know we need time to go back and readdress

10 certain issues, and then come back? 

11 Essentially, would it follow the same process,

12 is my question.

13 MR. EISNER: These things are

14 completely open. You can say, "I need more

15 time to be able to vote" --

16 MEMBER DORIA: Okay.

17 MR. EISNER: -- or "We need to

18 take a break so I can go communicate with

19 others in the room, call back and talk to some

20 people who are not here, get whatever advice." 

21 This is common.

22 In fact, my experience in the last
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1 one is that it happened less than what I saw

2 based on my years when I was in the government

3 and people would take two-hour breaks to sit

4 around a room and try to work out things with

5 other people.

6 MEMBER DORIA: Okay. Thank you.

7 MR. EISNER: So, again, back to

8 this. We are talking (3)a. We are okay with

9 leaving it exactly as worded? Anybody object?

10 MR. RAWALD: So, (3)a, the first

11 sentence. We haven't discussed the second

12 sentence, which is abstention shall not be

13 construed as a negative vote. So, I think

14 that is worth at least some discussion as

15 well.

16 MR. EISNER: Right. That is a

17 good point.

18 Anybody have any comments on that?

19 Some people don't want to take a

20 position. So, they just want to say, "I

21 abstain."

22 MEMBER SACHS: This is Harvey.
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1 I liked having that freedom in the

2 process. I think I only used it once or maybe

3 twice, but it certainly was some flexibility

4 that sent a signal without affecting the

5 outcome.

6 MEMBER FERNSTROM: This is Gary.

7 Me, too. I support that.

8 MR. EISNER: Anybody want to speak

9 against it?

10 (No response.)

11 Any problem with leaving sentence

12 two as it is?

13 (No response.)

14 All right. So, we are okay with

15 no objections to (3)a.

16 All right. Let's talk about

17 subgroups, e(1). As I said, you may want to

18 break into caucuses. You may want to take

19 time to just go talk to people in the room as

20 individuals. Or you may want to make phone

21 calls to people. You also may want to form a

22 subgroup to work on a particular issue that
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1 you don't think everybody has to be at.

2 As an example, in the last

3 negotiations we broke down into some groups,

4 subgroups, based on products. So, people

5 could work out what they thought we ought to

6 do with particular products, and then, come

7 back and talk about that.

8 Yes, in the back of the room?

9 MR. McCRUDDEN: This is Charlie

10 with ACCA.

11 There is a third sentence to a,

12 3(a). I just wanted some clarification of

13 what it means.

14 MR. EISNER: Am I missing it?

15 MR. RAWALD: It is the "All

16 agreements reached during the negotiations are 

17 tentative and being made by members present at

18 the meeting or their alternates who attend the

19 meeting in their stead until the Working Group

20 reaches an agreement that is binding on the

21 parties."

22 MR. EISNER: Okay. I'm sorry I
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1 missed that.

2 Any discussion on that?

3 MR. RAWALD: Well, yes, maybe. 

4 So, I guess the question from Charlie was,

5 what does that mean? And maybe you can give

6 us some clarity on that, because I wasn't part

7 of that Working Group, what you meant by that.

8 MR. EISNER: I just bring people

9 to consensus.

10 (Laughter.)

11 MR. RAWALD: Yes. So, what did

12 you do, as a member of that Working Group?

13 MEMBER SACHS: This is Harvey, and

14 I would like to defer to Tim.

15 MEMBER BALLO: This is Tim.

16 My recollection is that we had

17 approached that we worked through distinct

18 issues and took a vote on each distinct issue. 

19 That, however, just sort of set the tentative

20 position for the Working Group. At the end of

21 the process, we went through the whole list of

22 issues and re-voted to make sure that everyone
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1 was onboard with the entire agreement. So, I

2 think everything is tentative until we get

3 complete agreement on the whole enchilada.

4 MR. RAWALD: Right. So, this is

5 Doug Rawald.

6 So, there is a final term sheet

7 that we will all vote on in toto about whether

8 we agree to that. That will be made up of all

9 the individual votes we have said. So,

10 everything is tentative until we get to that

11 final million-dollar kind of term sheet that

12 is going to go ASRAC. Is that what you are

13 saying?

14 MR. EISNER: Much of what you talk

15 about interacts with other things. And people

16 said, "Well, I've got to see how we come out

17 on something later on."

18 Generally speaking, I am not aware

19 of anybody changing a position. You are

20 making a commitment and negotiations are

21 proceeding on that. But you still have the

22 right to say, "Now that I see how this fits in
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1 with that, it is not going to work."

2 MEMBER HARRIS: Yes, I think there

3 is nothing at all unusual about this, right? 

4 In any negotiation, you go point-by-point, but

5 it is not a deal until you see how it all

6 comes together. And maybe you end up losing

7 on some point that was critical to you further

8 down the line, which blows the whole thing up

9 for you. So, that way, people can agree to

10 something, knowing that dependent upon if

11 something else works out, they will be okay. 

12 And if not, they can still back out. And that

13 moves the process along. It is a failsafe.

14 MR. EISNER: Right. Some people

15 will specifically state, "I am in favor of

16 this, but it is partly dependent on what we're

17 going to talk about," just as somebody

18 mentioned --

19 MEMBER HARRIS: But the point is,

20 you don't have to do that on everything --

21 MR. EISNER: Right.

22 MEMBER HARRIS: -- because people
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1 are going to be doing that constantly. You

2 just get a failsafe vote at the end, and it is

3 not a deal until it is a deal. And I think

4 that makes a lot of sense.

5 MR. EISNER: But people sitting

6 around the room don't want to come back four

7 weeks later, after a couple of intervening

8 meetings, and have somebody say, "No. I have

9 rethought my position on seven of these issues

10 and I would like to say no." That is the kind

11 of thing you want to avoid doing. You are

12 here in good faith. If you miss something or

13 if you see now that it is not going to work

14 the way you thought it was going to work,

15 people aren't going to have a problem with you

16 saying that.

17 MR. RAWALD: This is Doug Rawald.

18 I am really glad Charlie raised

19 this point, now that I think about it, because

20 I certainly didn't think about it a lot a

21 moment ago.

22 But the concern would be that
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1 sometimes you do the vote as a closing issue

2 and it is over. And then, suddenly, two

3 meetings later it is back up again. You're

4 like, why is this issue back up again, and how

5 has their position changed?

6 So, what I would ask is that we

7 consider possibly adding the language that, if

8 somebody is going to change their tentative

9 position, if they voted one way and they are

10 going to vote differently, that they explain

11 why. I think that that is important, to know

12 why someone's position has changed or

13 something like that, so we can understand,

14 okay, what has changed here. Was it because

15 of this vote three days later I changed my

16 position on what I said to you earlier?

17 Because it would be difficult for

18 the group of people to just, by their

19 druthers, change their mind on what they voted

20 on previously. So, I think it is helpful to

21 have them articulate a reason.

22 MEMBER HARRIS: You know, you
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1 don't need to put everything in writing. I

2 mean, we are all going to be sitting around

3 this table for a lot of time.

4 MR. RAWALD: Uh-hum.

5 MEMBER HARRIS: And I just can't

6 imagine a situation where someone is going to

7 agree to something, come back two weeks later,

8 and say, "Never mind," without explaining it. 

9 It is a constitution we are drafting. We

10 don't have to draft the regulations here.

11 I just think you can leave some

12 things to the good faith of the group to

13 resolve this.

14 MR. RAWALD: Okay.

15 MEMBER HARRIS: Other than that,

16 we will be fly-specking this thing until our

17 time runs out.

18 MR. EISNER: Anybody in favor of

19 adding language? Anybody want to speak about

20 that?

21 MR. RAWALD: I have in favor of

22 adding language. I will put forward that I
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1 think it is helpful to have some language.

2 MEMBER HARRIS: Yes, lawyers, you

3 can't trust them.

4 (Laughter.)

5 MR. EISNER: Yes?

6 MR. McCRUDDEN: Charlie with ACCA

7 again.

8 You laid out a situation where

9 there would be a number of votes, and then,

10 later potentially another vote. So, let's say

11 there were 20 votes, and then, later you

12 talked about a term sheet. Would the term

13 sheet be the 20 votes again or just a final

14 approval of the whole package under this

15 language?

16 MR. RAWALD: This is Doug Rawald.

17 Charlie, I know you are directing

18 that at me, but I wasn't part of that past

19 experience. So, I will have to defer to the

20 folks that were part of the Commercial Working

21 Group, where this came from, and see how they

22 dealt with it there.
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1 MEMBER BALLO: So, yes, we did go 

2 through the term sheet point-by-point,

3 although for most of those that was a very

4 quick process because there was very little

5 change from the initial votes that were taken.

6 MR. McCRUDDEN: Thanks. That is

7 very helpful.

8 To follow up, I don't know if

9 there is a need to put on record why you are

10 voting, whether you are changing your vote or

11 voting. I think that is just the vote. But

12 I think I agree with Scott. I think this is

13 sort of a deliberative process. No one is

14 just going to, I don't think anyone is going

15 to up and say, "I am voting no after I voted

16 yes." I think they would probably give some

17 reason. I think we all would know what that

18 is.

19 So, I am okay with the language. 

20 I think the language looks good as it is. I

21 will leave it at that.

22 MR. EISNER: Anybody else want to
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1 speak on this?

2 MEMBER SHEPHERD: This is Amy

3 Shepherd from AHRI.

4 I agree, and we can always just

5 ask them. I mean, it is a dialog that we are

6 having.

7 MR. EISNER: Okay. Others besides

8 Doug disagree?

9 (No response.)

10 Do you still want the record to

11 reflect that you object?

12 MR. RAWALD: No, I just want to

13 make sure we have a discussion of it. So,

14 everyone else is comfortable with that, then

15 let's go forward.

16 MR. EISNER: Subgroups. Any

17 comments on that?

18 One of the things to think about

19 is, if you form a subgroup, whether you want

20 to let the people who are sitting in the back

21 of the room or other people who are similarly

22 situated participate by phone or otherwise in
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1 a meeting. As worded, I think that this says

2 that they can.

3 MEMBER SACHS: This is Harvey.

4 The subgroups in that Commercial

5 Equipment, in general, were by type of

6 commercial equipment. As I am thinking about

7 the list of other selected representatives, I

8 can see some caucuses with some ambiguous

9 edges. We have at least one manufacturer who

10 is actively involved in a large scale in

11 distribution, for example.

12 So, if we saw a need for the

13 distributors, or let's call them the

14 downstream people, to get together and talk,

15 there could be some membership issues that

16 those people would have to resolve, but I

17 don't see any reason to change the language,

18 but just to be thinking about the fact that

19 here subgroups are likely to be somewhat

20 different from what we saw in the equipment

21 types in that last process.

22 MR. EISNER: Other comments? 
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1 Anybody object to this language staying in,

2 paragraph (1)?

3 (No response.)

4 So, let's go on to paragraph (2),

5 "Appropriate support". It is always easy to

6 require DOE to give appropriate support. It

7 shouldn't be a burden for you, right, Doug?

8 Anybody have a problem with that?

9 (No response.)

10 Okay, subparagraph (2) is okay.

11 Subparagraph (3)? They basically

12 can't make decisions. Okay, anybody have a

13 problem? Anybody object?

14 (No response.)

15 All right, subparagraph (4). Just

16 a technical thing about when they can be

17 scheduled. Anybody have a problem with (4)?

18 MEMBER WHITE: This is Chuck

19 White.

20 Those could very well be on the

21 phone, a conference call, not necessarily --

22 when we say "meet in the same location," it
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1 doesn't mean this room.

2 MR. EISNER: No.

3 MEMBER WHITE: It could be my desk

4 telephone.

5 MR. EISNER: This I think almost

6 anticipates some kind of regular meetings of

7 a subgroup whenever possible.

8 MR. HURST: John Hurst from

9 Lennox.

10 That doesn't preclude us from

11 taking a timeout and walking out in the

12 hallway as a subgroup and talking about

13 issues, correct?

14 MR. EISNER: No.

15 MR. HURST: Okay.

16 MR. EISNER: I don't read it that

17 way. Does anybody else read it that way?

18 (No response.)

19 Okay, anybody have a problem with

20 (4)?

21 (No response.)

22 All right, c, just to --
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1 MEMBER NOLL: I have a quick

2 question.

3 Sorry. Elizabeth at NRDC.

4 The subgroup as a whole, is that

5 going to be directed by the Working Group? 

6 Like we decide as a group what subgroups will

7 -- or is that an informal process ad hoc?

8 MR. EISNER: I believe this

9 envisions something that this group sets up. 

10 We want you to go off and look at this issue

11 and come back to us with some recommendations

12 on how to handle it.

13 There are other ways where you can

14 break out and caucus in the hallway or you can

15 say, "Hey, I want to phone three or four of

16 the people who are at the meeting with me and

17 see if we can work out our differences over

18 the phone between meetings."

19 MEMBER NOLL: Okay.

20 MR. EISNER: Those are all things

21 you can do more formally. Those are things

22 that I can join, if you think I can help get
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1 you to consensus on something like that. 

2 There are also things you can do completely on

3 your own.

4 MR. RAWALD: Right. And this is

5 Doug Rawald.

6 So, just to give you an idea of

7 how it worked, there were a couple of

8 subgroups, as they discussed, with this

9 Commercial Certification Work Group. And they

10 actually had a court reporter. They had a

11 webinar. They had people attending by phone. 

12 So, it was very much like this meeting, only

13 it had less attendees who were directed on a

14 very specific task to bring back to the bigger

15 group and say, "Okay, here's what we think

16 about it."

17 So, we are not talking about the

18 informal caucuses you do among your own. That

19 is not recorded and not part of the official

20 record.

21 MR. EISNER: Okay, c, "Discontinue

22 if unproductive." Basically, this is saying,
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1 if we are not making progress, we shouldn't

2 waste our time and continue trying to

3 negotiate. That is going to be something you

4 are going to generally do by consensus: does

5 anybody think it is worth proceeding?

6 Does anybody have a problem with

7 that?

8 (No response.)

9 Okay, let's leave that and go on

10 to (4), "Agreement, term sheet, and supporting

11 analysis". Doug has mentioned the term sheet

12 a few times.

13 Oh, I'm sorry, "Deadline for

14 negotiations". October 30th is the date that

15 ASRAC or at least that the agency put in its

16 notice. ASRAC I think said the end of October.

17 MR. RAWALD: And this is Doug

18 Rawald.

19 For just anyone following the

20 record, the example we have was August 30th,

21 2013, which was the date applicable to the old

22 group. We are going to change it to one that
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1 is applicable to our group here.

2 MR. EISNER: Okay. As I mentioned

3 earlier, if we are making very good progress,

4 we all agree we should ask for more time. It

5 is not uncommon for the group to do that,

6 establish a new deadline. Indeed, the group

7 would probably say, "We're close, but we're

8 not there. We're not going to make it by

9 October 30th. We think the date should be

10 extended to December 15th." We can do that.

11 That doesn't mean ASRAC will accept it, but we

12 can ask for more time.

13 And we are going to talk about the

14 schedule this afternoon. We are going to talk

15 about what we can get done, meeting on what

16 would be a normal schedule for these types of

17 proceedings. And I want to hear from you on

18 whether you think that is reasonable, whether

19 there is enough time.

20 MEMBER SACHS: This is Harvey.

21 We don't have to resolve it right

22 now, but that particular date is one when I
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1 expect to be out of country. And I would a

2 whole lot be happier if it were October 15th

3 or November 15th. Well, this is the date that

4 it is actually submitted to ASRAC.

5 MR. EISNER: I understand, but

6 that is sometime before that to make the final

7 decision.

8 MEMBER SACHS: Aha. Oh, so that

9 is not our vote on the term sheet?

10 MR. EISNER: You are going to vote

11 on the term sheet before October 30th, yes.

12 MEMBER SACHS: Thank you.

13 MR. EISNER: I forget the dates

14 last time, but I think it was half a month

15 before it was actually typed-up and submitted.

16 MEMBER SACHS: Thank you. I will

17 read more carefully next time.

18 MR. EISNER: Okay. So, anybody

19 have a problem, want to raise any objection to

20 this?

21 (No response.)

22 Again, as I said, we may want to
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1 come back to this after we talk about the

2 schedule this afternoon.

3 Okay, the agreement, the term

4 sheet, and supporting analysis comes up first.

5 MEMBER HOURAHAN: This is Glenn

6 Hourahan.

7 It looks like that second sentence

8 could just be struck in its entirety. I don't

9 think it applies to the situation.

10 MR. EISNER: Anybody have an

11 objection with deleting that?

12 MEMBER SACHS: The only objection

13 is that maybe we want make it parenthetical or

14 something. But, if this one winds up being

15 the template for the next one, where it is

16 relevant, we will have lost it.

17 MR. EISNER: Do you have any

18 resolution of that, any way you retain these

19 things for the future?

20 (No response.)

21 I think, if nothing else,

22 somebody, hopefully, will keep a copy of this
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1 version.

2 Anything else?

3 MEMBER DORIA: This is Jordan

4 Doria with Ingersoll Rand.

5 With regard to the first sentence,

6 "an agreement reached by the Working Group on

7 recommended regulations," as I understood it

8 from our earlier discussion, we talked about

9 the difference between a process plan and

10 regulation, that what we could be recommending

11 here could be broader than just regulations. 

12 So, do we want to readdress that first

13 sentence?

14 MR. EISNER: Suggestions for

15 changes?

16 MEMBER HOURAHAN: Perhaps a broad

17 enough term, replacing "regulations" with the

18 word "input". So, "Recommended input will

19 take the form of...."

20 MR. EISNER: Comments on that?

21 MEMBER MEYERS: This is Karen with

22 Rheem.
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1 Didn't we say "rule" in the

2 original, the goal?

3 MEMBER DORIA: So, it would be

4 "recommended rules"?

5 MR. RAWALD: So, Laura, in (3)a,

6 the recommendation, let's change it to "any

7 agreement reached by the Working Group on

8 recommended rules". There you go.

9 We have been using "rules" as a

10 plural.

11 MR. EISNER: Okay. Anything else

12 in this paragraph?

13 MEMBER WINNINGHAM: This is Dave

14 with Allied Air.

15 You use the word "rule" in several

16 places, and we have said "rules" up above. 

17 Should we make that correction throughout the

18 paragraph?

19 MR. EISNER: Here we are using

20 "proposed rule". We are using "proposed rule"

21 there.

22 Do you want to go with the Notice
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1 of Proposed Rulemaking throughout?

2 MEMBER WHITE: Can you go one more

3 level of magnification?

4 MR. EISNER: Can you read that

5 now?

6 We have got "recommended rules"

7 here. And then, we have got "proposed rule"

8 and "proposed rule", and then, "Notice of

9 Proposed Rulemaking".

10 Would you be more comfortable if

11 it said "Notice of Proposed Rulemaking" in

12 each place?

13 MEMBER MEYERS: So, this is Karen

14 with Rheem.

15 I actually like the way it is

16 written because we are going to be divining

17 specific rules that will be incorporated into

18 the final rule. So, I actually like the

19 difference between the two. I mean, it is a

20 Notice of Proposed Rule," but we are coming

21 up, in this negotiation we are going to be

22 negotiating several different items that will
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1 end up going into the proposed rule. So,

2 there will be several rules that will end up

3 in the final rule. So, I like the

4 differentiation.

5 MR. EISNER: Okay. Does anybody

6 disagree with that? Anybody want to change

7 it?

8 (No response.)

9 Okay, let's go on to b, "Statement

10 is basis for the Notice of Proposed

11 Rulemaking".

12 This gets at the issue we were

13 talking about earlier with consensus. That

14 doesn't include, for example, DOE and what

15 they will put in the document. So, you could

16 have DOE being one of two negative votes and

17 still have consensus on something they didn't

18 vote for. This is talking about how they can

19 handle it, if they want.

20 MEMBER SACHS: This is Harvey.

21 It seems to me the critical issue

22 is in line 1, the use of the term "unanimous
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1 vote" instead of "consensus vote".

2 MR. EISNER: I think a "consensus

3 vote" may mean DOE doesn't agree with it.

4 MR. RAWALD: Right. Harvey, as I

5 recall from the negotiation you were part of

6 last time, that was by design. Because the

7 concern was, well, if DOE is the dissenter,

8 what will DOE do with that recommendation? 

9 So, folks really wanted to have some clarity

10 about whether DOE would be forced, over their

11 objection, to adopt a rule they didn't want to

12 adopt. And so, this was the agreed-upon

13 solution by the group, which was used, which

14 was how folks -- that is the rule that we

15 could issue resulting from that negotiation.

16 MEMBER SACHS: Yes, if it works,

17 that's new.

18 MR. RAWALD: It did work last

19 time. I will say that much.

20 MEMBER MEYERS: So, actually, I

21 got really hung up on this one at the last

22 one. So, I remember there being a lot of
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1 discussion on this one. And it gives me

2 heartburn that the whole committee can agree

3 and DOE can disagree. And they have kind of

4 free rein on this.

5 So, I think where we left it last

6 time is that, or what the understanding was,

7 that DOE was pretty much forced to use, unless

8 there was a legal reason where they could not

9 use it, they had to go with what the consensus

10 was of the group. Because, otherwise, you

11 know, they pretty much have full veto power

12 over everything.

13 And so, I remember there was a lot

14 of discussion on that. And so, we finally

15 agreed -- I mean, you guys correct me if you

16 recall differently -- but they pretty much

17 couldn't veto something unless there was a

18 legal reason why they could not adopt it.

19 MEMBER HARRIS: Gee, that seems to

20 me to change the nature of this from an

21 advisory committee into a decisionmaking

22 committee, and I am not sure that is legal,
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1 actually.

2 We operate under the Federal

3 Advisory Committee Act. We are advisory. We

4 don't get to tell the government what it has

5 to do. The government represents everybody;

6 we represent our specialized interests. We

7 are advisory. That is the nature of this.

8 The fact that DOE is at the table

9 is critical, because, then, we get their

10 concerns out with us. But I don't see how you

11 can possibly turn this group of interested

12 parties into a decisionmaking body for the

13 federal government.

14 MR. RAWALD: Right, Scott Harris,

15 and I will follow up with this.

16 Doug Rawald.

17 So, there are a lot of things that

18 have to be considered in making a rule and a

19 rulemaking. And Dan could talk about this a

20 lot. But there are things regarding the Small

21 Business Administration that we need to think

22 about. There are concerns regarding our
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1 different regulatory requirements and

2 different things that Congress looks for that

3 we have to consider in every rule.

4 And so, it may be that, when

5 looking at that analysis at the end of the

6 day, even though we have the recommendation

7 from you folks, DOE can't support it. And so,

8 we would have to look at all of those things.

9 So, I understand you probably

10 think that is all in the legal area. That is

11 what you are talking about. But I think the

12 way this is drafted is to explain, hey, DOE is

13 going to make sure that whatever this

14 recommendation of this committee is, we are

15 going to put it out in the rule we have. And

16 if we can't do it or we feel like we can't

17 agree with it, then we are going to go a

18 different course. We are going to make sure

19 the public knows what we are thinking or what

20 was discussed here, so at least it puts it out

21 there and makes us at least have some sort of

22 reason for it.
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1 What I can assure you is that I am

2 here to negotiate in good faith, like everyone

3 else. I mean, I don't want to be here just to

4 waste everyone's time. I am investing my own

5 time to be here, and the Department has asked

6 me to be here in order to come to a conclusion

7 that works for the industry and for the

8 stakeholders and everybody involved here.

9 And so, we are not viewing it as

10 our ability to kind of just hold say over

11 everyone and say, "Well, DOE is not going to

12 do that. So, we can't agree to that." That

13 is not the intent at all.

14 But we do have at least a

15 requirement to make sure that everyone

16 understands how DOE would view things, if we

17 were dissenting. And there is also reason why

18 we would dissent. So, we want to make sure

19 that that is clearly articulated here.

20 And I think this is a really fair

21 articulation of what our position would have

22 to be. And I think it is kind of where we
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1 would rest in this negotiation. I think it

2 worked last time, and I think it makes a whole

3 lot of sense in how it is drafted currently.

4 But I understand your concerns,

5 Karen. I really do. And I want to assure you

6 that I will do everything I can to dissuade

7 any concerns you have over the course of this

8 rulemaking or this negotiation.

9 MEMBER MEYERS: Well, let me be

10 clear.

11 MR. RAWALD: Uh-hum.

12 MEMBER MEYERS: I mean, this is

13 how we got to a point I think where, I think

14 at least me personally, I got comfortable with

15 the process.

16 MR. RAWALD: Uh-hum.

17 MEMBER MEYERS: Because it took us

18 a long time to get to this paragraph. I

19 remember that. Because there was just this

20 fear that everyone else could agree and DOE

21 could just not, and so much for the

22 negotiation and the hours spent getting to the
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1 point of view.

2 So, I was not very clear. I do

3 support this paragraph --

4 MR. RAWALD: Okay.

5 MEMBER MEYERS: -- as written

6 because I think it takes into account a lot of

7 the concerns I had when we were drafting this

8 language originally.

9 MR. EISNER: Other questions or

10 comments, concerns?

11 MEMBER WHITE: I think it has to

12 be that way.

13 This is Chuck White.

14 If we all agreed that there was no

15 point in enforcing this and we should have DOE

16 ignore it, then we all put forth that and we

17 all agreed to it, DOE would have to ignore

18 that. That is not their mandate.

19 And it is not that they are not

20 here in good faith. They have to do what they

21 have been ordered to do by the government. 

22 So, it has to be that way. I can support that
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1 paragraph.

2 MR. COHEN: This is Dan Cohen.

3 Just one quick sort of procedural

4 thing I should point out here, too. So, Doug

5 is, though a lawyer and a member of the Office

6 of General Counsel, he is here as the DOE

7 representative on this committee to negotiate

8 an agreement.

9 Those of us here who also are in

10 the General Counsel's Office, we are here to

11 give legal advice to the committee as a whole. 

12 So that Doug is not in the position of having

13 to give you legal advice, too.

14 Our job is to make sure that, as

15 you are negotiating, you understand what the

16 legal parameters are within which we are

17 operating. So that, we shouldn't actually

18 have a problem here. So that, whatever

19 agreement is reached, it something that we

20 can, as a legal matter, at least be okay with,

21 right? So, you understand the various sort of

22 outlines of where we can and cannot go, just
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1 as a matter of law.

2 Now Doug would, then, represent

3 the Department in sort of working out within

4 those parameters what we can do. So, truly,

5 this shouldn't really be a problem.

6 MR. EISNER: Does anybody else

7 have any comments?

8 (No response.)

9 Anybody object to the language as

10 it is currently in the document?

11 (No response.)

12 Okay, public comments?

13 Or, actually, b. So, we are on b,

14 "Statement of basis for an NOPR". Oh, no, I'm

15 sorry. I am going up and down. We are on c.

16 You are here to basically give

17 recommendations for what should be in a Notice

18 of Proposed Rulemaking. The agency, then, has

19 to put it out for public comment. They get

20 the comment back. The agency will prepare a

21 summary. The comments are in a public docket. 

22 You could read them. But they will prepare a
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1 summary and circulate it. And you, as a

2 Working Group, have the right under this

3 paragraph to tell them what they ought to do

4 as a result of the comments.

5 MR. RAWALD: So, this is Doug

6 Rawald.

7 Also, process-wise, so folks can

8 envision this happening. So, the negotiation

9 concludes. We give a report to ASRAC at the

10 end of October. There is a rule published at

11 some point after that. And then, after that,

12 so possibly late in the year or early in the

13 next year, you folks would be brought back in

14 or at least given, "Hey, here are the

15 comments." And then, if you want to, then

16 come together as a group and say, "Hey, we

17 want to make sure the Working Group's response

18 to these comments is heard." That gives you

19 the opportunity to do that, to kind of revoice

20 those comments.

21 So, it is an obligation beyond the

22 end of the negotiation that you need to be
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1 involved in what is going on with the fruit of

2 your labor. And I say "you," but I am

3 including me in that. I am also part of that

4 group.

5 MR. EISNER: Any comments,

6 questions?

7 Generally, when you do a

8 negotiated rulemaking and you do it well, you

9 will get fewer comments. They will be less

10 adverse. They may raise a technical issue

11 that everybody missed, and a simple fix may be

12 necessary before you issue the final rule. It

13 may raise some real important, substantive

14 issues. And you may say, "We need to meet

15 again to talk about how to respond to that."

16 But, generally speaking,

17 everything goes fairly well; there are no

18 significant concerns at the final rule stage.

19 Any objections to this paragraph

20 as it is written?

21 (No response.)

22 Okay, this one was brought up
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1 earlier. This one is important.

2 Anybody have any issues they want

3 to raise about the way it is written, about no

4 challenge?

5 Paragraph d, subparagraph d.

6 MEMBER ROCKY: This is Bryan

7 Rocky, Johnson Controls.

8 By the discussion, it says, "Each

9 party that is working within the framework of

10 this Working Group," it indicates that each of

11 us is representing the interests of all of our

12 organization. So, in other words, my vote, in

13 my discussion, in future activities, I am

14 representing all 155,000 Johnson Controls

15 employees. Is that the intent of this

16 statement from the Department's viewpoint?

17 Any dissenting views from anyone

18 in Johnson Controls would not be allowed

19 because I have accepted and participated in

20 this Working Group?

21 MR. EISNER: Dan?

22 MR. COHEN: This is Dan Cohen. 
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1 Yes, this is Dan.

2 So, that is correct. The

3 assumption is that you are here representing

4 an interest, not yourself. And that, once you

5 represent that interest, that interest is,

6 presumably, satisfied.

7 MR. RAWALD: And, Dan, this is

8 Doug, if I can give clarification.

9 So, for folks like Ray Ellis, who

10 is representing not only his company, but the

11 other companies that have the same interest he

12 does, that is all those companies as well.

13 MR. COHEN: So, this is Dan.

14 That is a little more difficult,

15 right, because it is hard to say Johnson

16 Controls can bind some other party that is a

17 different organization. But, theoretically,

18 they are representing -- that is more the case

19 for, say, sort of the trade groups who are,

20 presumably, representing their members.

21 MEMBER ROCKY: Yes. And again,

22 this is Bryan Rocky.
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1 So, I am not trying to belabor a

2 negative point. It is just it is something

3 that I have come across and have been thinking

4 of.

5 So, in this case Johnson Controls

6 and several of the other manufacturers

7 involved are members of AHRI. So, if Amy

8 represents AHRI, is she double-counted? Is my

9 vote even applicable in certain cases, because

10 I am a member of the organization she is

11 representing?

12 MR. COHEN: This is Dan Cohen

13 again.

14 So, AHRI is a different party in

15 this negotiation. You are here representing

16 your company. There may be times when your

17 company and AHRI may have different views, and

18 we would hope that that would, in fact, be

19 portrayed in the negotiation. It shouldn't

20 just have one sort of mindset towards it.

21 AHRI as an organization represents

22 all of its member companies. They do that as
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1 the organization. AHRI would, then,

2 presumably, if they vote in favor of

3 something, AHRI would be the party that that

4 provision would apply to.

5 MEMBER HOURAHAN: This is Glenn

6 Hourahan with ACCA.

7 I have two questions building on,

8 I guess, the legal side. So, as ACCA as an

9 organization representing contractors, we may

10 be in consensus with a vote. And

11 subsequently, one of our constituent members

12 is not in agreement. What is the recourse,

13 the legal recourse, from DOE back to us if one

14 of our members chooses to take some other

15 action?

16 MR. COHEN: Let's be clear. What

17 we are working on here essentially is a moral

18 obligation in this scenario, right? There is

19 nothing legally-binding. We can't prevent one

20 of your member companies from doing anything

21 pursuant to this provision, right?

22 So, the expectation is, though,
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1 that, as you come here as a representative of

2 a group of entities, the membership of your

3 organization, that you have been talking to

4 those people. Well, whatever committees you

5 have and what internal processes you have for

6 coming to some policy view for the

7 organization is working to lead to whatever

8 view you are expressing in this committee.

9 So, presumably, all the various

10 voices within your group have been vetted

11 before you come here and take a view, right? 

12 So, you are kind of presenting the views of

13 your membership.

14 MEMBER HOURAHAN: Well, thank you

15 very much for that, except for it is the

16 middle of summer. We are talking about a two17 month process. My members are focused on

18 doing other things than what we are doing here

19 in D.C.

20 So, we will do our canvasses and

21 caucuses and things of that nature within our

22 membership, but there will be a significant
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1 number of folks in the industry who will be

2 surprised by whatever rulemaking comes out in

3 January, no matter what we do here.

4 My second question -- thank you,

5 though -- my second question is -- this still

6 is Glenn Hourahan -- is the word "in any

7 forum". I don't know what that really means. 

8 I can interpret that as, if we were to vote

9 yes on an issue, and then, subsequently in a

10 meeting or one of our conferences, in our

11 forum, that is, disagree or make an

12 announcement that we were part of this

13 process, and now that we have looked at it

14 again, we are against it, I would take that to

15 mean precluded from doing such.

16 MR. COHEN: This is Dan Cohen.

17 So, to be perfectly honest, that

18 language was meant to really deal with

19 Congress. The expectation would be that, if

20 there is a consensus reached in this group,

21 that no party in this group would go running

22 off to the Hill and try to undercut it in some
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1 way.

2 MR. EISNER: If I could add here,

3 too, Dan has stressed this is not something

4 that is put in because somebody thinks there's

5 legal enforcement opportunity here. It is put

6 in to deliver a message that everybody is here

7 around the table in good faith to try to

8 negotiate. And when you do their job and you

9 say, "I like this rule," and the agency goes

10 ahead and they publish it, and everybody else

11 says, "We like it," and they adopt it, they

12 don't expect to hear criticism. They don't

13 expect someone going up to Congress to get the

14 rule reversed. They don't expect to have a

15 lawsuit.

16 That doesn't mean that you did

17 everything right and the head of the

18 organization changed or something else

19 changed, and you now want to bring a lawsuit

20 against the agency for it. What means is the

21 next time the agency is looking at, for

22 example, doing a negotiated rulemaking, it may
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1 decide, for whatever reason, the organization

2 that did this wouldn't be a good one to

3 represent that interest group because that

4 interest group didn't listen to what they were

5 saying or didn't join the phone conversation. 

6 They may say the interest group did a good

7 job, but we can't negotiate with that interest

8 again because they don't know how to negotiate

9 effectively.

10 It could be a lot of things. They

11 are trying to say we all work together. Just

12 like you want to be able to show a product --

13 that is what Karen was getting at -- after all

14 these meetings, you want to be able to have a

15 product to get out on the street, even if the

16 agency disagrees with it.

17 The agency said, "We'll do that."

18 The same way they want to say everybody has

19 agreed with it, we want to get to a final

20 rule. And if we can't, you may have all done

21 the best job you could have. They now know in

22 the future, "We got the message. We can't
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1 keep doing this and, then, going into court. 

2 We can't keep doing this and having

3 legislation passed overturning what we did."

4 So, if that happens, despite your

5 best efforts to represent your interests, we

6 just want to let you know we won't be able to

7 negotiate in these areas in the future.

8 Yes?

9 MR. DENNIS: Keith Dennis from

10 NRECA.

11 I just wanted to kind of add

12 something for the record as a group with a

13 member at the table. And I think that EEI

14 would agree in this same position, although

15 Steve is not here.

16 While we would like to give Ray

17 and Lincoln Electric all of the support that

18 we can, and we will act in good faith and try

19 to bring our perspective to help him, he is a

20 member of our organization, sort of like AHRI

21 has members. We are not actually at this. 

22 So, we wouldn't think that his particular
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1 interest would, then, bind other parties that

2 are members or our trade association, just

3 because we have a member on the association.

4 So, I intend to support Lincoln

5 and potentially act as an alternative. But,

6 as far as NRECA, we decided as a trade

7 association not to apply for the committee,

8 for that very reason.

9 So, I just want to make clear that

10 a member being on this doesn't, then, make

11 whatever group they are a member of party to

12 this kind of Work Group ground rules. Is that

13 the understanding?

14 MR. EISNER: The people around the

15 table --

16 MR. DENNIS: Right.

17 MR. EISNER: -- are the ones who

18 are signing the agreement.

19 MR. DENNIS: Right. I just had

20 heard something a little earlier, kind of it

21 wasn't clear on the record, saying that

22 potentially --
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1 MR. EISNER: Right.

2 MR. RAWALD: Right. This is Doug

3 Rawald.

4 So, I asked the question of Dan

5 because I wanted to understand the

6 ramifications of what we are agreeing to, for

7 folks that haven't thought it through here.

8 Because we talked about it in the

9 context of Johnson Controls, which is very

10 simple. It is a company. And so, you are

11 going to have folks like Lincoln Electric,

12 which is the example I used, which probably

13 caught your ear, who when Ray was introducing

14 himself recommended that, "Hey, I'm speaking

15 on behalf me, but also I have these other

16 companies that are similarly situated and I am

17 speaking on behalf of as well who I want to

18 talk to and I will caucus with."

19 MR. DENNIS: Right.

20 MR. RAWALD: And so, I wanted to

21 clarity from my lawyers about how they view

22 that interplaying with what is going on here.
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1 MEMBER SACHS: This is Harvey.

2 And I just want to emphasize that,

3 to me, the term "interested party" that we are

4 supposedly representing is incredibly

5 ambiguous. We have the example of Lincoln

6 Electric, quote, "representing" the 2300 or so

7 rural cooperatives. And Glenn is

8 representing, and for that matter Chuck, not

9 just ACCA and PHCC, respectively, but my

10 understanding is that your two organizations

11 are a minority of all the contractors in the

12 industry, and you generally represent the more

13 professional contractors whose interests may

14 diverge from those of the median contractor.

15 So, it is a moral principle. It

16 is not anything which can be actionable in

17 practice. And I think we have all implicitly

18 understood that.

19 We have seen cases in the

20 commercial products thing where, despite --

21 well, because of individual corporate

22 interests, the positions of the members in,
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1 for example, commercial refrigeration or

2 boilers covered a broad spectrum. And there

3 were individual manufacturers who were at the

4 table and couldn't really be supportive of

5 everything that the association as a whole

6 might have wanted.

7 So, I think it is understood --

8 and this may be more explicit than we need --

9 but it never has seemed to get in the way in

10 past discussions.

11 MEMBER WHITE: Chuck White.

12 I would like to ask kind of a

13 followup. I don't know that PHCC necessarily

14 has a consensus formula for all of our

15 members, but I am going to go look it up.

16 But I would like to know how AHRI

17 doesn't necessarily bind a member of Johnson

18 Controls, that one is a member of the other,

19 but yet, PHCC or ACCA binds their thousands of

20 members around the country. What is the

21 difference here? And I don't have any way to

22 make all of my members agree with everything
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1 we do.

2 MEMBER DORIA: This is Jordan

3 Doria of Ingersoll Rand.

4 If I could maybe offer, if I

5 understand you correctly, I think the

6 distinction is that I am speaking on behalf of

7 Ingersoll Rand. If, in theory, another

8 Ingersoll Rand employee chooses to weigh-in

9 through public comment period on it, they are

10 free to do so. And this does not prevent

11 that. They are simply not speaking on behalf

12 of Ingersoll Rand at that point. It just so

13 happens they work for the company, as I

14 understand it anyway.

15 Similarly, PHCC will continue to

16 speak for PHCC. If one of your members

17 chooses to weigh-in in the contrary, they are

18 speaking solely on their own behalf and not on

19 behalf of PHCC. That is the distinction that

20 I get and understand.

21 MEMBER WHITE: But what I heard

22 was my members will be bound by my decision,
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1 and it is incumbent upon on me to caucus with

2 everybody and make sure we all agree, and that

3 my members are my members and they are part of

4 my big umbrella.

5 MR. COHEN: And this is Dan Cohen.

6 So, let me clarify. Maybe if I

7 misstated that, or whatever, but that was not

8 what I was trying to convey. What I was

9 trying to convey was the expectation for this

10 negotiation is that, when you come into the

11 room, you have canvassed your interested

12 parties and your membership, so that you can

13 adequately represent the views of the interest

14 that you are here representing.

15 The party, for purposes of that

16 provision, is the organization, not the

17 individual members. So, the expectation is

18 that the organization is okay with it.

19 And I think I said this when the

20 gentleman from Johnson Controls was asking. 

21 Because he represents other manufacturers,

22 does his saying yes on an issue bind those
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1 other manufacturers? I don't see how that can

2 be the case. Johnson Controls can only

3 represent in this instance for this particular

4 purpose Johnson Controls.

5 To the extent that people are here

6 representing other parties, it is in the way

7 they are representative of those other

8 parties. So, the gentleman from Lincoln

9 Electric, he is representative of

10 cooperatives. I mean, he can't speak for --

11 you know, pick a cooperative; I don't know who

12 it might be in Ohio someplace. But he

13 obviously can't bind them to anything.

14 The expectation, though, is that,

15 through his representation, in a

16 representative way of those interests, and

17 with NRECA as part of supporting, that they

18 can sort of try to, before we get to

19 resolution of an issue, try to vet that

20 concept or the issues that are being discussed

21 through their membership and through the

22 parties that make up their industry. So, they
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1 can come here with what is a view of that

2 industry as a whole.

3 So, that in the rulemaking we

4 don't come up with something that works well

5 for Lincoln Electric, but not for the

6 cooperative in Ohio. But, obviously, you

7 can't bind the cooperative in Ohio.

8 MEMBER SHEPHERD: I think we all

9 kind of get the gist of what this is going

10 for. And so, maybe we could take a look at

11 this language, because I find the language

12 just a little confusing. And I don't know

13 that it really reflects the essence of what we

14 are speaking about.

15 So, we talk about in (3)d that

16 there is going to be a report to ASRAC that

17 will include the term sheet, but this also

18 talks about recommendations and the issue

19 challenged.

20 So, for me, I don't know that this

21 language as it is drafted really captures this

22 idea that we are getting at, which is that
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1 each party is representing its interests and

2 in good faith will do that and agrees not to

3 take a different position later, unless they

4 have viewed that. I mean, I feel like we are

5 having a conversation that we all get, but I

6 don't know that that language really reflects

7 this.

8

9 MR. RAWALD: Might I suggest --

10 this is Doug Rawald -- since it is 12:10, that

11 we take a lunch break, and possibly you and

12 some of us can think of some language that

13 might be a little bit easier to understand. 

14 And we come back after lunch and put that

15 language on the table.

16 MR. EISNER: Okay. Is that

17 agreeable with everybody?

18 MEMBER SACHS: This is Harvey.

19 And I might clarify Amy's point by

20 saying, although I consider myself an

21 environmental and efficiency advocate, I will

22 not be held responsible for any statement that
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1 Greenpeace or the American Society of Tree2 Huggers and Treehouses were to make on the

3 Hill or anywhere else as a result of this

4 proceeding.

5 MR. EISNER: Before we go for

6 lunch, does everybody understand the ground

7 rules about, for example, going out of the

8 building and things like that?

9 MR. COHEN: So, just quickly, as

10 you are walking out of the building, you

11 actually have to have your badge on.

12 I think someone mentioned, I think

13 it was Doug who mentioned that, if you go down

14 the elevator just out here to the side of the

15 building and go straight down to the ground

16 floor, there is a Subway and a Dunkin' Donuts. 

17 Obviously, you can go there; no problem.

18 If you go to the cafeteria, which

19 requires you go to the ground floor and, then,

20 walk through a maze to the other side of the

21 building, when you actually enter the

22 cafeteria, technically, you are leaving the
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1 building, even though you are still in the

2 building. Don't ask; just trust me on that. 

3 That's the case.

4 (Laughter.)

5 Just have your badge.

6 MR. RAWALD: So, they will scan

7 your badge out and they will scan you back in.

8 MR. COHEN: Yes. If you leave the

9 building completely, and you want to go off

10 someplace else and get real food, then will

11 have to hand the badge in, I believe, to the

12 guard at the desk, but tell them you are

13 coming back, and they will keep the badge. 

14 So, you don't have to go through the whole

15 security process all over again when you come

16 back.

17 This room will be secure.

18 MR. EISNER: Why don't we aim to

19 be back at 1:15?

20 (Whereupon, the foregoing matter

21 went off the record for lunch at 12:13 p.m.

22 and went back on the record at 1:19 p.m.)
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1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

2 1:19 p.m.

3 MR. EISNER: Okay, everybody take

4 a couple of seconds to look at it.

5 MR. RAWALD: And just for purposes

6 of the record -- this is Doug Rawald -- so,

7 what Amy has proposed, after caucusing with

8 folks over lunch, is that we entirely replace

9 the language under "No Challenge" with some

10 new language saying, "Each Working Group

11 member agrees to make good-faith efforts to

12 represent its affected interest, including

13 raising concerns and accepting views. 

14 Accordingly, each Working Group member who

15 votes in favor of the report agrees not to

16 take a position materially inconsistent with

17 the report in any public forum, to the extent

18 that that proposed rule will have the same

19 substance and effect as a term sheet for a

20 period of one year from the date of the final

21 rule."

22 MEMBER SHEPHERD: So, I think what
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1 we were trying to achieve is this

2 understanding that, when you're in, you're in,

3 and you need to say something to object and

4 have a consequence to that that we all

5 understand, but, also, I think recognize a

6 little bit that there is some limitation as to

7 what actions could be taken vis-a-vis your

8 interested parties. You are supposed to

9 represent them, but, I mean, technically, you

10 can't legally bind them, I don't think. So,

11 that is what that is trying to get at.

12 MR. EISNER: Okay. Any comments?

13 MR. RAWALD: For those folks that

14 propose this -- this is Doug Rawald -- does

15 everyone agree that public forum includes

16 court? So, that would mean you can't sue us

17 and say, "Hey, we disagree with what we had

18 already voted for before."?

19 MEMBER SHEPHERD: I think that was

20 our intent.

21 MR. RAWALD: Yes.

22 MEMBER HOURAHAN: This is Glenn
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1 Hourahan.

2 I actually see when you say -- I

3 am trying to find the words again -- "in

4 public forum," you actually extend it. It is

5 more. Because they were saying "court" and

6 "Congress," and now, you have extended it to

7 everywhere.

8 MEMBER SHEPHERD: It said "other

9 forum". It is right above. So, it said "in

10 court or any other forum".

11 MEMBER HOURAHAN: Right, but yours

12 says "in any public forum" now.

13 MEMBER SHEPHERD: Well, I don't

14 really know what -- I'm sorry. I was just

15 trying to -- I mean, I don't know that "in

16 court or any other forum" is any more narrow

17 than "public forum".

18 MEMBER HARRIS: By having "public

19 forum," you have actually, then, narrowed it.

20 MEMBER SHEPHERD: And we did think

21 about that. We said, you know, we may have to

22 have internal discussions or justifications
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1 with people that were like, "Look, we weren't

2 happy with this or that, but on the whole we

3 decided to support it." And we didn't want to

4 try to police that.

5 MEMBER DORIA: This is Jordan with

6 Ingersoll Rand.

7 One just question is, we use the

8 term "report" twice here, and I don't recall

9 using that elsewhere. And then, we use the

10 term "term sheet" at the end. It seems like

11 it might be better to use "term sheet"

12 throughout.

13 MEMBER SHEPHERD: Okay. So, the

14 reason I put "report" in is because the

15 decisionmaking, (3)d, talks about a report

16 that we submit to ASRAC that could include any

17 agreed term sheet.

18 MEMBER DORIA: Okay.

19 MEMBER SHEPHERD: So, I was trying

20 to be consistent. Because one thing that was

21 confusing me with that other language was the

22 recommendation. So, that is what that is
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1 trying to get at.

2 MEMBER DORIA: This is Jordan with

3 Ingersoll Rand.

4 The only other question is, there

5 was a reference to the preamble as well as the

6 final rule in the earlier version. And that

7 is not here now. So, I am just asking if that

8 is important. I think Scott made the point

9 before that the preamble and the final rule

10 can both be important. So, do we want to

11 include it?

12 MEMBER SHEPHERD: To me, a

13 proposed -- I guess I don't know the

14 administrative law answer to this question,

15 but, to me, a proposed rule, I think of that

16 as the NOPR. I guess maybe we should put

17 that. I was thinking NOPR and Notice of Final

18 Rule, which would include the preamble in the

19 final rule.

20 MR. RAWALD: Right. So, I guess

21 what I am hearing you saying is that her use

22 of the word "rule" includes both the preamble
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1 language and the regulatory language that will

2 be adopted in the CFR. So, I am comfortable

3 with that interpretation of what the word

4 "rule" means.

5 MR. EISNER: Any other comments?

6 MEMBER WHITE: This is Chuck

7 White.

8 Do we interpret "Working Group

9 member" as the individual sitting at this

10 table or the group the individual represents? 

11 Just a question.

12 MR. RAWALD: Chuck, I think that

13 is a very valid question -- this is Doug

14 Rawald -- given a lot of our discussion before

15 lunch. So, I think we have to always go back

16 to the fact that the reason why we can exist

17 in this situation, why FACA allows us to

18 conduct ourselves, is because we all are here

19 in a representative capacity.

20 So, there is at least some idea

21 that nobody here is speaking for themselves. 

22 So, while what we are saying is none of us
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1 should actually go out and do this, the hope

2 is that your group would fall in line with

3 what you are doing. Now we understand there

4 is a practical limitation to that, right? I

5 mean, especially from your group and from

6 Glenn's group, which are probably the largest,

7 most dispersed groups I can imagine of the

8 ones at the table, where you have folks all

9 over the country who you can't control.

10 And we understand we are not

11 binding them. What we were hoping is that

12 folks would fall in line with you, hearing

13 this kind of moral obligation, and say, "Hey,

14 listen, I'm not going to sue." But if Dan out

15 in Alaska says, "I have to sue," then he does,

16 and that is his issue. But we are hoping,

17 acting in a representative capacity, will be

18 able to say that, "I think people will fall in

19 line with what I say here."

20 Does that make sense?

21 So, if Laura could actually delete

22 that earlier text, the no challenge portion of
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1 that, and start after "no challenge," period,

2 and delete from there on.

3 MR. EISNER: Do you want this to

4 be (5) rather than subparagraph d?

5 MR. RAWALD: No, she is going to

6 make it subparagraph d. It is going to be a

7 correction to that because of the way the

8 automatic numbering worked.

9 MEMBER SACHS: This is Harvey.

10 And I would just point out there

11 is a nuance here that I suspect a number of

12 people at this table will be involved in

13 various conferences, workshops, and things

14 like this, which will have as their subject

15 what the agreement arrived at and the rule

16 actually mean, and "take a position" certainly

17 cannot be read or meant as discussed why there

18 were opposing views. And I don't think it is

19 intended to do that, but I did want to just

20 raise that as a sanity check.

21 I am thinking about January's

22 ASHRAE conference where there may well be a
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1 session on this question of implementation and

2 enforcement of regional standards.

3 MR. RAWALD: Right. This is Doug

4 Rawald.

5 So, Harvey, what I would envision

6 from reading this language would be that, if

7 you were sitting at ASHRAE talking about what

8 we discussed here, you wouldn't say, "And I

9 voted for it, but, gosh, I didn't agree with

10 it."

11 MEMBER SACHS: No.

12 MR. RAWALD: That is what we are

13 saying, is that you wouldn't go out there and

14 say, "I voted for it, but I didn't agree with

15 it," or "I went along with it, but I didn't

16 agree with it," that kind of thing.

17 So, we are saying, hey, if you're

18 voting for it, it is because you believe in it

19 and you are going to stick to that feeling in

20 any public forum for the year.

21 MEMBER SACHS: If I am voting for

22 it, it means that I accept it in its totality.
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1 MR. RAWALD: This is Doug Rawald.

2 I think I agree with that.

3 MEMBER SACHS: I may still think

4 that something in it is stupid.

5 MR. EISNER: Any other comments?

6 MR. RAWALD: I just want to say

7 thanks to Amy. I thought that was really good

8 caucusing from the first outing there by the

9 group. That was great.

10 MEMBER SHEPHERD: Well, it shows

11 you what happens when you make a comment; you

12 might get an assignment.

13 (Laughter.)

14 MEMBER SACHS: It also shows you

15 lawyers can fix problems.

16 MR. RAWALD: Some would probably

17 find allegation in that aspect.

18 MR. EISNER: Okay, now anybody

19 have any concerns or questions?

20 MR. RAWALD: So, Neil, does this

21 mean that, if we decide we don't like what you

22 are doing, we can get rid of you? Is that
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1 what that is saying here?

2 MR. EISNER: That is what it

3 means.

4 MR. RAWALD: Just so everyone

5 knows that.

6 MR. EISNER: Okay. Everybody is

7 okay with that, No. (5)?

8 Paragraph (6). Okay. The first

9 one is about the Federal Advisory Committee

10 Act, the Negotiating Rulemaking Act. It just

11 says that we are basically operating under

12 those.

13 Anybody have a problem?

14 (No response.)

15 No objections?

16 Okay, paragraph b. The meetings

17 are open. They are announced in The Federal

18 Register.

19 Does anybody have any concerns,

20 questions?

21 MR. RAWALD: And this is Doug

22 Rawald.
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1 I just want to note, you may

2 recall from our discussion with Tina Hymer

3 about the FACA rules, we are not required to

4 post notices regarding these meetings. We

5 have in the past. I recommend we continue

6 doing such a thing. It is good to have the

7 public know what is going on here, but it is

8 not a requirement. So, here we are agreeing

9 to do that. And if we do agree to that, then

10 the Department will take on the burden of

11 actually always publishing notices of the

12 meetings before they happen.

13 MR. EISNER: Okay. I assume there

14 are no questions or problems. Or there is?

15 (No response.)

16 Okay, that brings us up to c,

17 "Meeting summaries". Basically, have a record

18 by the transcript, but you are not necessarily

19 approving them as official summaries. No

20 photographs can be taken. In the absence of

21 consensus, you are not bound by positions

22 taken or accepted. We are supposed to be
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1 throwing ideas out on the table. If you don't

2 work it out, you are not bound by the fact

3 that you proposed an alternative and now don't

4 want to go with it.

5 Does anybody have any questions or

6 concerns about this?

7 MR. RAWALD: And this is Doug

8 Rawald. I want to jump in again.

9 So, this provision here, "In the

10 absence of consensus, parties shall not be

11 bound by positions taken during this

12 negotiation," I think it is really important

13 that we have the freedom to kind of be devil's

14 advocate and to throw out different ideas,

15 because this really is an important kind of,

16 "Hey, how is this going to work?"

17 And so, I mean, from my point of

18 view, from the Department and what we are

19 going to enforce, it is very helpful to kind

20 of game these things out and think through how

21 they are going to work. And so, I definitely

22 hope that folks will be amenable to actually
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1 adopting this provision and following it, and

2 trying to think through what will work and

3 what will not, and offering different

4 hypotheses and different ideas.

5 MEMBER MEYERS: This is Karen

6 Meyers.

7 And I don't know what needs to go

8 in there, but can we at least try to make a

9 commitment that we will have the transcripts

10 available at least three days prior to the

11 next meeting? That was kind of an issue last

12 time, is, you know, the transcripts weren't

13 ready and weren't ready and weren't ready. 

14 And so, we needed to go back and reference

15 something, and they weren't quite -- and I

16 don't know if it needs to go in here, but if

17 we could just try to make a general commitment

18 to do that?

19 MR. RAWALD: So, I guess that

20 would be out -- this is Doug -- so, that would

21 be out of the control of the Board. So, I

22 wouldn't necessarily want to make a ground
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1 rule, but what I will do is I will bring that

2 back to the folks who are in charge here.

3 The problem as I see it will be

4 logistical, right, because the meetings are

5 going to happen pretty rapidly, because our

6 deadline is October. And so, the question is,

7 from working with the folks that we have

8 contracted to do this, how quickly can they

9 turn things around? And I don't have an

10 answer for you.

11 So, I will talk to the folks that

12 are in charge of the contract regarding the

13 court reporting and see what I can get a

14 number for and I will try to do the best to

15 meet the group's work. But I don't think it

16 will work as a ground rule because we can't do

17 anything about it.

18 MEMBER MEYERS: It would be

19 helpful if you can make that happen.

20 MR. RAWALD: No, I understand. I

21 like to read them, too. So, I am onboard with

22 you.
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1 MEMBER NOLL: This is Elizabeth at

2 NRDC.

3 And I don't know if this is

4 actually the right section to be talking about

5 this, but it strikes me that we are making a

6 recommendation to ASRAC, correct?

7 MR. RAWALD: Yes.

8 MEMBER MEYERS: Is it assumed that

9 they accept our recommendation in its

10 entirety? I mean, do they discuss our

11 recommendation, and then, give that to DOE or

12 is it whatever we say goes?

13 MR. RAWALD: Right, so it is not

14 that, right. That is why we can operate the

15 way we do under FACA, is because the senior

16 committee will discuss our recommendation and

17 decide whether to adopt from whole cloth or

18 not.

19 So, I can't speak for ASRAC, and

20 Scott can because he is the ASRAC

21 representative. But my understanding is that

22 they will debate our recommendations, and
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1 then, forward them as appropriate.

2 MEMBER MEYERS: So, then, I guess

3 -- and I apologize for going back into

4 sections, but it just came to me, in the

5 agreement section we talk about unanimous

6 vote, DOE will accept; non-unanimous vote, DOE

7 will to the best of their ability. And then,

8 if DOE is the dissent, again -- but what if

9 ASRAC is? Is it assumed that, to the best of

10 their ability, they will accept? Or is it

11 assumed that they will discuss, and then, that

12 is what DOE would accept?

13 MR. RAWALD: So, what you are

14 referring to -- this is Doug Rawald -- is

15 Section (4)b, "Statement of the Basis for

16 NOPR". And why that is important, and why I

17 think ASRAC is important to that, is what we

18 are saying is the Department will take the

19 recommendation of the subcommittee and use it

20 for a rule if is unanimous. If it is not, and

21 we disagree with you, what we will do is we

22 will put it out there as a comment. And we
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1 will say, "Here's what the entire weight of

2 everyone we talked with wanted to do." So, it

3 will be in that notice. Regardless of what

4 ASRAC thinks of it actually going forward, we

5 are going to put that in there, that a group

6 of people came together who represented a lot

7 of interest and felt this is the right way to

8 go. And so, we want to make sure -- yes, we

9 are assuring you that your work will go out

10 for the public in some form or fashion.

11 MEMBER HARRIS: ASRAC itself is

12 only an advisory committee, right. So, it

13 cannot kill or derail any proposal that comes

14 from this group. It can disagree with it. It

15 can take a different position. It can advise

16 the Department differently. But what comes

17 out of this will go through to the Department

18 in one way or another.

19 As a practical matter, the notion

20 that you put in months of work here and come

21 out with something, and the ASRAC would sort

22 of randomly say, "Nah, not so much," I
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1 wouldn't worry about that.

2 MR. EISNER: There have been, I

3 believe, two negotiated rulemakings that went

4 through ASRAC. Did they both come through

5 without any changes being made?

6 MR. RAWALD: Right. For the past

7 two, the Transformer and the Commercial Cert

8 Working Group, they went through ASRAC and

9 were actually turned into proposed rules and

10 final rules as they were recommended by the

11 group. So, I think that the track record

12 speaks for what it says. It is not a lengthy

13 one, but it seems likely that this will be

14 what ASRAC would adopt, unless there was some

15 reason they wouldn't.

16 MR. EISNER: Any questions? Any

17 concerns about this paragraph c?

18 MEMBER SHEPHERD: This is Amy

19 Shepherd.

20 Is a transcript the same thing as

21 a meeting summary?

22 MR. EISNER: I believe what the
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1 ground rules say is that that is the summary

2 that is prepared. There is no separate

3 report.

4 MEMBER SHEPHERD: Okay. So, I

5 would, then, maybe suggest just changing the

6 second sentence to say "such transcript" as

7 opposed to "such meeting summary". But it is

8 probably just a lawyer thing. Sorry.

9 MR. EISNER: Anybody have a

10 problem with that? I think that is what was

11 intended.

12 MEMBER SHEPHERD: I don't know. 

13 That was my question. I didn't know if they

14 were the same thing. If they are, then I

15 would just use the same word. But, if they

16 are something different, I think maybe we need

17 to clarify.

18 MR. RAWALD: I think in the

19 context of what we are doing here, they are

20 the same. So, when these ground rules may

21 have been started, there was not necessarily

22 the notion there would be a daily transcript. 
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1 We are going to be doing that here. So, there

2 will be no independent meeting summary because

3 that would be duplicative work with really no

4 purpose.

5 So, there will be a transcript

6 that we are committing to doing, we have

7 contracted to have done. And so, I think

8 using the word "transcript" is fine. I would

9 agree with that.

10 MEMBER MEYERS: So, this is Karen

11 with Rheem.

12 I remember at the last one, you

13 know, we would have PowerPoints that would

14 kind of summarize the different points that we

15 voted on and different things that we brought

16 up. And I considered that kind of the meeting

17 summary and the transcript to be something

18 different.

19 So, are we saying we are not going

20 to -- because it was very helpful to kind of

21 have all those issues that we laid out and how

22 we voted. And so, you didn't have to pour
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1 through word-for-word of every single thing

2 that people said.

3 MR. RAWALD: Right.

4 MEMBER MEYERS: So, I actually

5 thought of them as different. So, I don't

6 know.

7 MR. RAWALD: So, Karen, what you

8 are asking is can we do what we have done in

9 the last rulemaking as far as creating a

10 PowerPoint that everyone can look at later. 

11 We could certainly talk about that. We don't

12 have one going on right now. But we can

13 certainly talk about that and getting that

14 resource together and do that.

15 I want this to be as helpful as

16 possible to people.

17 MEMBER MEYERS: Yes, I think it

18 would be helpful, but that is just my opinion.

19 MR. EISNER: Excuse me. Based on

20 the way it worked the last time, we worked on

21 these things like we are working on this. 

22 This would probably be changed and be made
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1 available to everybody tomorrow morning. It

2 is just when we produce a document, it will be

3 made available, if that is what the group

4 wants.

5 I don't know that it has to go in

6 here. Transcripts have to be kept probably

7 under the Federal Advisory Committee Act or

8 some kind of summary.

9 But that is up to you. I think we

10 work on it; we create a work product. 

11 Everybody wants a copy of it. That is what

12 happens.

13 Okay, anybody have any objection

14 to c as changed?

15 (No response.)

16 We probably need an "S" on the end

17 of "transcripts" to be consistent.

18 "Future amendments." Basically,

19 you can change this document any time you want

20 during the meeting if you get consensus to do

21 it.

22 Anybody have any questions or
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1 problems with this?

2 MEMBER NOLL: So, I guess one. On

3 c, should it not say "meeting transcripts" if

4 we are talking about transcripts, the title?

5 MR. EISNER: Up in the heading?

6 MEMBER MEYERS: And are we going

7 to have meeting summaries?

8 MEMBER NOLL: And then, do we need

9 a separate section for summaries or is that

10 something that the group will do ad hoc or

11 informally?

12 MR. EISNER: Well, you are talking

13 about what Karen was just talking about?

14 MEMBER NOLL: Right.

15 MR. EISNER: From my perspective,

16 I didn't consider those summaries of meetings. 

17 It was a work product created during the

18 meeting. This is what we all agreed to on

19 that particular day. It doesn't say anything

20 about the discussions or what other issues

21 might have been discussed that day. But, if

22 you want to, we could put something in about
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1 the work product at the meetings.

2 MR. RAWALD: Right, and we can

3 create a ground rule here, I mean, if you want

4 to create some sort of ground rule.

5 But what I am hearing between you

6 and Neil is possibly a difference of opinion

7 about what the actual substance was, that

8 those running PowerPoints that were being

9 edited over time of what was going on weren't

10 actually a summary of what was discussed in

11 the previous meeting. It was kind of: here's

12 where we are.

13 And so, everyone could refer back

14 to it and say, "Here's what we discussed. 

15 Here's the final analysis we got to last time. 

16 We can pick up from here," because they were

17 kind of an evolving document over time.

18 MEMBER MEYERS: So, yes, I agree,

19 that's exactly what it was. So, to that

20 point, I think I would like to add a "d" for

21 work product. So that we make sure that a

22 work product -- I don't know how we want to
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1 word it, but that there is one available that

2 we work from versus just --

3 MR. EISNER: "Any documents

4 created during a Working Group meeting will be

5 made available to the public as soon as

6 possible."?

7 MEMBER MEYERS: Yes, what he said.

8 (Laughter.)

9 "To the group".

10 Everybody okay with that?

11 (No response.)

12 All right. We are almost there. 

13 "Future amendments." You can make changes at

14 any time you want.

15 Anybody have any problem?

16 (No response.)

17 All right. We are done.

18 Does anybody want to go back to

19 any of the sections? Do you want to go

20 through the sections quickly and look at them

21 as they were amended up on the screen? Or are

22 you ready to vote?
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1 MEMBER WHITE: This is Chuck

2 White.

3 I just have one kind of question. 

4 It is a public meeting. We are keeping a

5 transcript. Do we have any policy about

6 containing any of this among the committee or

7 reporting to others? I mean, I don't think we

8 want to see an article in a trade magazine

9 listing all the things we have done, but is

10 there any -- just a question -- any policy or

11 way we want to look at that type of how we

12 control --

13 MR. EISNER: The meeting is open

14 to the public. So, anybody can come and be

15 here.

16 MEMBER WHITE: Yes.

17 MR. EISNER: So, are you asking

18 whether --

19 MEMBER WHITE: I am just asking,

20 do we have a policy to keep things amongst

21 ourselves or share? Is there a way this has

22 been done in the past?
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1 MR. EISNER: In my experience with

2 these kinds of meetings, and I think that is

3 true for any federal advisory committee

4 meeting, what goes on in that public meeting

5 doesn't stay in that meeting. It is available

6 to the public.

7 Generally speaking, the people who

8 are here are going to be coming to these

9 meetings somewhat regularly or others are

10 going to be coming. They are going to be

11 interested in it. But there is no reason a

12 media person could not come from a trade

13 journal, listen-in on the meeting, take notes. 

14 I don't think there is any way the agency

15 could preclude that person.

16 MR. RAWALD: Yes. This is Doug

17 Rawald.

18 The only two things that strike me

19 from this whole conversation would be there

20 would be a concern of, is what you are saying

21 about the public meeting in conflict with what

22 you said in the meeting? So, are you slacking
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1 your representative capacity in what you are

2 saying? So, being careful that you are being

3 consistent with what you are saying and not

4 contradicting what you are saying in the

5 meeting to us.

6 And two, are you in any sort of

7 way acting not in good faith? So, are you

8 using this to in some way engender a way of

9 running around the committee? Then, that

10 would be going afoul of what Neil talked about

11 initially, that we are all negotiating in good

12 faith.

13 So, as long as those two things

14 are not involved, I think that, I mean, this

15 is all public and any discussion of it would

16 be totally appropriate.

17 MR. EISNER: This is a complete

18 record. And this complete record is available

19 to the public.

20 MEMBER DORIA: Yes, this is Jordan

21 Doria with Ingersoll Rand.

22 I don't know that we need to
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1 modify the ground rule, but I would say that

2 some of the points that were made when we all

3 introduced ourselves is that there is a lot of

4 interest in this subject and a lot of interest

5 in getting it resolved soon. And more

6 importantly, there is a lot of confusion.

7 I think we would all add to the

8 confusion if we started running off to our

9 respective -- if I went off to all the dealers

10 that install products and said, "Here's where

11 the negotiations stand today," and everyone

12 did the same thing, and every two weeks we did

13 that, I think that would not be advantageous

14 for any of us. And I think we all kind of

15 recognize that.

16 So, I don't think a blow-by-blow,

17 even though we are going to get questions and

18 we are getting them already, I think that

19 would not be good. So, I don't know that it

20 belongs in the ground rules, but I will just

21 say I think it would be in everyone's best

22 interest to kind of, to a large extent, wait
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1 until we have a finished product here, and

2 then, share that with the people that are not

3 directly involved in this, but certainly are

4 directly impacted by the result.

5 MR. EISNER: All right. And I

6 think you have agreed to basically negotiate

7 through this forum. That is what good faith

8 is all about.

9 So, it is a fact that yesterday we

10 wrote the ground rules, but it is going beyond

11 facts when you start to say, "I'm not happy

12 with the ground rules because I think they are

13 going to do the following." That would be

14 contrary to the good faith I think that

15 everybody said they had in coming to these

16 meetings.

17 I think I agree with the point

18 that was just made. You've got to be careful

19 of that, and not look like you are trying to

20 negotiate outside by talking to the media.

21 MR. RAWALD: Yes. And, Jordan,

22 this is Doug.
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1 In response to your point, there

2 also is an obligation to caucus with your

3 interest as well, right? So, we have got to

4 be able to allow you to go back and talk to

5 people about what happened because you have

6 got to be able to get their input, so that you

7 can come back and say, "Well, I talked to

8 John, Sally, and George, and they agreed," or

9 they disagreed. And so, you can reflect their

10 interests.

11 So, I do want to run a little

12 careful because people do need to be talking

13 to people. And so, we don't want people

14 feeling their gagged.

15 MR. EISNER: Okay. Any other

16 questions? Problems? Issues?

17 MR. RAWALD: I guess I want to

18 raise a procedural point. So, we have Charlie

19 Harak who is not here. He is one of the

20 members. So, can we vote on this without him

21 or do we have to wait for him to appear to

22 vote on these ground rules?
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1 MR. EISNER: No.

2 MR. RAWALD: Okay.

3 MR. EISNER: That is my

4 understanding. Again, that can be changed. 

5 Generally speaking, you have to be at the

6 meeting. There is some stuff about

7 attendance.

8 MR. RAWALD: Okay.

9 MR. EISNER: He got short notice.

10 I think what we have discussed, if

11 he comes back and says he is troubled by

12 something or he has got problems with

13 something, we should talk to him, we should

14 listen to him, we should address them.

15 MR. RAWALD: Okay.

16 MR. EISNER: But we have got a

17 tight schedule. We have got to move on.

18 MR. RAWALD: And also, we haven't

19 heard from Dave Hungerford at all, who is

20 online.

21 MR. EISNER: That is a good point.

22 Dave, are you still with us
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1 online?

2 (No response.)

3 You usually have an indication of

4 there is a problem with communications, don't

5 you?

6 By the way, I forgot; Doug also

7 got a question earlier this morning about

8 alternates and lobbyists. And he has got an

9 answer now that we can share.

10 MR. RAWALD: Right. So, as I

11 mentioned earlier, both the folks from ACCA

12 and HARDI -- excuse me, running your names

13 together -- approached me about the fact that

14 there was a recently-released clarification

15 from the Office of Management and Budget

16 regarding the President's rule regarding

17 lobbyists being involved in these committees.

18 And the ethical opinion of our

19 Office is that, in light of that opinion

20 yesterday, that lobbyists that are registered

21 can act as alternates to members who are

22 already sitting on this committee as long as
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1 they are acting in a representative capacity. 

2 That is the most important part here.

3 Because, as we all are operating

4 in our representative capacities, those folks

5 also can be your alternate as long as they are

6 acting in a representative capacity.

7 So, if anybody wants to discuss

8 more what that means or how that works, then,

9 we can, of course, seek further ethical

10 guidance. But I think that answers the

11 question for John and for Charlie back there.

12 MR. EISNER: The question --

13 MEMBER HUNGERFORD: Hi. This is

14 David Hungerford.

15 I just wanted to let you know that

16 I am listening and I am hanging in the

17 background because of the difficulty of sort

18 of chiming-in usually here.

19 I don't disagree with anything

20 that is going here. And if I do, I will speak

21 up or I will notify Jeremiah that I need to

22 say something.
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1 But, yes, as far as a

2 representative today, I think this is looking

3 fine to me. I don't have any problems. It is

4 consistent with what we have done with the

5 other Working Groups.

6 MR. EISNER: Okay. Thank you.

7 Anybody else have anything?

8 (No response.)

9 All right. Let's go on to the

10 next issue, which is development of schedule

11 for the negotiation meetings. You should have

12 a document that looks like this.

13 Oh, I'm sorry, yes, we were about

14 to do that. We now need to decide whether we

15 want to vote on this. We started to talk

16 about that, whether we wanted to go back,

17 scroll down, and look at all the changes or

18 whether you are ready to say yes or no.

19 Anybody want to go back and go

20 through each one individually or look at the

21 screens at least for a few seconds?

22 MR. RAWALD: And I guess one
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1 option we could put on the table, from the

2 Department's point of view -- this is Doug

3 Rawald -- is we could have someone print these

4 out, and you could think about them overnight,

5 if you prefer, and then, come back and vote on

6 them tomorrow. We can vote on them today. It

7 is really whatever works best for folks, but

8 I want to at least put out there that we have

9 support tools ready to help do that, if that

10 is what you folks would prefer to do.

11 Actually, I think that Jeremiah

12 probably could email to you right now, if we

13 want to.

14 MR. EISNER: We can send the

15 redline out, so you will see what we did

16 change.

17 MR. RAWALD: Uh-hum. If that will

18 work for everyone, we can actually go ahead

19 and do that. And we can take a break and

20 folks look at their email and come back, or we

21 can talk about them tomorrow, whatever the

22 group wants. But I am saying we have options.
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1 MR. EISNER: Would everybody like

2 to look at it?

3 MEMBER HARRIS: This is Scott

4 Harris.

5 I propose we vote on them today. 

6 We have just been through them. We know what

7 they say. We know what they mean. And if we

8 do everything here twice, it is going to be a

9 much longer-than-necessary process.

10 MR. EISNER: Anybody else?

11 (No response.)

12 Do you want to do that now? Would

13 you like us to scroll through or are you ready

14 to vote? Anybody want to scroll through?

15 (No response.)

16 Okay, let's take a vote on the

17 ground rules as they have been changed during

18 this meeting.

19 Is there anybody who objects to

20 the ground rules the way they are written?

21 (No response.)

22 Okay. Consider them adopted.
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1 Let's talk about the schedule.

2 MR. RAWALD: This is Doug Rawald.

3 So, we will accept all the changes

4 that were tracked, and then, Jeremiah will

5 email them around for folks to have, so you

6 can have them this evening.

7 MR. EISNER: Okay. You should

8 have a short document. It just sets out a

9 bunch of dates for meetings, starting today,

10 going through the middle of October for the

11 fifth meeting, and the October 30th date for

12 the final recommendation. All those dates

13 that are on there, except the final

14 recommendation date, are Wednesdays and

15 Thursdays.

16 Again, the meetings right now, we

17 are meeting this week; it is 9:00 to 5:00. We

18 can change the times. We can change the days. 

19 This is something we thought we would just

20 send out in draft, so we can have something to

21 start talking about.

22 And one of the issues we should
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1 focus on is, considering that this is the

2 first of the five meetings, and we will be

3 spending a bit more time on process stuff,

4 next will be work defining the issues and the

5 order we want to discuss them in, et cetera. 

6 Is this enough time? Do you right now feel

7 comfortable with the schedule or should we

8 schedule more meetings in this timeframe?

9 So, ready to start anyplace

10 anybody wants. Should we start with the last

11 point first? Is everybody comfortable with

12 four-plus meetings to discuss substance,

13 assuming two-day meetings, going from 9:00 to

14 5:00 right now?

15 MEMBER HARRIS: Can I just ask,

16 how did we get these particular dates, and

17 whether or not someone checked to see people's

18 availability? Because I am out of town the

19 first four dates you have got mentioned. And,

20 you know, if it is just me, it is not a big

21 deal, but I just don't know what people's

22 schedules are like or whether we did some
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1 survey to see who was available when or

2 whether these were just selected.

3 MR. EISNER: That is a good

4 question, Scott.

5 Generally, in negotiated

6 rulemakings it has been found that two days of

7 meetings, sometimes three when you are

8 rushing, but two days of meetings every couple

9 of weeks is about the most you will want.

10 The only thing that we schedule

11 around is vacation time I have planned in

12 September. Otherwise, it is every two weeks,

13 Wednesdays and Thursdays.

14 That doesn't mean that can't be

15 moved. We can do two weeks in a row and,

16 then, skip a week, if we want.

17 MR. RAWALD: Right. So, Scott,

18 this is Doug Rawald.

19 So, there has been no polling of

20 anybody. These are just dates that Neil has

21 posed out there as a talking point.

22 We did use Wednesdays and
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1 Thursdays. I am completely unavailable on

2 Tuesdays. I am never here on Tuesdays because

3 I am away teaching. So, that is a constraint

4 that I put on Neil. Everything else is open

5 for folks to discuss.

6 I will note that -- Gary will be

7 familiar with this -- in the pumps rulemaking,

8 what we actually did was we started late on

9 one day and ended earlier the next day, so

10 folks could travel in the morning of and

11 travel out the night of the next meeting. So,

12 there is some flexibility here as far as the

13 timing goes.

14 The rooms are generally only

15 available until 6:00 p.m. So, we can't go

16 much later than that.

17 So, those are kind of just the

18 logistical constraints that we could think

19 about.

20 MR. EISNER: And again, the last

21 regulatory negotiations we did, because of

22 some constraints DOE had in meeting rooms, was
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1 we would ask people who have buildings in the

2 Washington area where a conference like this,

3 of this size could be held, if we could use

4 their meeting rooms.

5 So, there are things we can do. 

6 This is just something to start the

7 discussion.

8 Yes?

9 MEMBER ROCKY: Yes. Bryan Rocky

10 from Johnson Controls.

11 So, the only thing I saw in

12 looking at this is we start with the first two

13 meetings that are two weeks apart. The last

14 two meetings are two weeks apart. But we only

15 meet once in six weeks in between. And I

16 think that is where the meat of all the work

17 is going to try to get done. So, unless we

18 are planning for subcommittees --

19 MR. EISNER: I think the one

20 difference is --

21 MEMBER ROCKY: There is only one

22 meeting in September.
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1 MR. EISNER: Yes, but that is

2 where we had three weeks instead of two weeks,

3 and then, we were back on a two-week schedule.

4 MEMBER ROCKY: Yes. Yes, well, it

5 is three weeks after the August meeting, and

6 it is three weeks before the October meeting.

7 MR. EISNER: It is two weeks

8 before the October meeting, I believe, the

9 17th and 18th, and then, October 1st and 2nd.

10 MEMBER ROCKY: Yes, okay.

11 MR. EISNER: I may be wrong.

12 MEMBER ROCKY: So, again, just a

13 view, if I was looking at this, I think we

14 need one more meeting in September, not that

15 I need more meetings, but maybe I am in the

16 minority in that.

17 Also, personally, I would prefer

18 Wednesday/Thursday rather than

19 Tuesday/Wednesdays, or something else.

20 I know, I understand. I am

21 expressing an opinion.

22 MR. RAWALD: He is saying he likes
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1 Wednesdays/Thursdays. He is letting everyone

2 know.

3 MEMBER ROCKY: I am supporting the

4 position that --

5 MR. RAWALD: Yes, he is actually

6 supporting us.

7 This is Doug Rawald.

8 So, I think that is helpful to

9 know that at least one person is comfortable

10 with the Wednesday/Thursday meet schedule and

11 it works for them.

12 Let's talk about that. How do

13 people feel about Wednesdays/Thursdays as a

14 general kind of a concept? Does that work for

15 people? Is that a doable dual days?

16 MR. EISNER: Okay. What about

17 number of meetings? Anybody believe this is

18 more than necessary, less than necessary, or

19 good to start with?

20 MEMBER WINNINGHAM: This is Dave

21 from Allied.

22 To join into what Bryan had
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1 mentioned, the one date here, the 17th and

2 18th of September, kind of in line with what

3 Bryan was saying, but there is a CEE

4 industry/partner meeting that some key members

5 here may have -- I don't know -- an

6 affiliation with.

7 So, if we could reach an agreement

8 to work around that, I think that might --

9 MR. RAWALD: Dave, what is the

10 date of that meeting?

11 MEMBER WINNINGHAM: The 17th and

12 18th.

13 MR. RAWALD: Okay. So, it seems

14 like that would be a non-starter then. We

15 should not have a meeting that day if you guys

16 are all going to be gone that day.

17 MEMBER WINNINGHAM: Well, I am

18 bringing it up. I don't know. I know a

19 number of the faces here I saw at that meeting

20 last year.

21 MR. RAWALD: Okay. Perhaps we can

22 get a show of hands. How many people were
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1 intending to go to that meeting on the 17th

2 and 18th of September?

3 (Show of hands.)

4 Okay. So, it seems like at least

5 half the group possibly wouldn't be able to be

6 here. So, maybe we should at least reschedule

7 that one.

8 Neil mentioned that he was going

9 to be on vacation one week. And obviously, we

10 can't do this without Neil.

11 Neil, what week were you out?

12 MR. EISNER: It was the first full

13 week in September. I think it starts

14 September 6th, 8th. Maybe Monday is the 8th.

15 MEMBER LATTANZI: Well, this is

16 Matt Lattanzi.

17 I was going to throw out the week

18 of the 8th. Do a week prior instead of the

19 week after. I also have commitments the week

20 of the 15th as well.

21 MR. RAWALD: The week of the 1st

22 you're saying?
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1 MEMBER LATTANZI: The week of the

2 8th.

3 MR. RAWALD: Well, Neil just said

4 he can't do the week of the 8th.

5 MEMBER LATTANZI: Oh, I thought he

6 said he was the week of the 1st.

7 MR. EISNER: No, I said it is the

8 second --

9 MEMBER LATTANZI: Oh, the

10 second --

11 MEMBER LATTANZI: -- the first

12 full week, I think. It is the week after

13 Labor Day.

14 MEMBER LATTANZI: Oh, okay. 

15 That's the week of the 8th then. Okay.

16 MEMBER GIBBONS: Yes, this is John

17 from Carrier.

18 Given those dates where there is

19 some conflict, why don't we look at the 3rd

20 and the 4th, and then, come back to Bryan's

21 earlier point, do the 24th and 25th in

22 September? Because he is right, you know, we
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1 have got to get this done. It looks like we

2 are back-end-loading this a little bit too

3 much for my comfort.

4 MR. RAWALD: This is Doug Rawald.

5 So, the only question that comes

6 up, is going here August 27th and 28th, and

7 then, coming back the following week, is that

8 going to work for folks or is that too much

9 travel for some people? And I am looking at

10 Gary because he is coming from California, but

11 there are some people who might have some

12 travel constraints.

13 Obviously, for me, I am going to

14 be here. I mean, I am here in the building. 

15 So, it is easy. So, I can commit to these

16 things. But I want to make sure it works for

17 everybody.

18 Yes?

19 MEMBER NOLL: I have a quick

20 question. This is Elizabeth from NRDC.

21 My question on the timing, and for

22 people who have done this before, it would be
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1 helpful to know, like how much work in between

2 meetings is done, like of subgroups or data

3 analysis? Because, to me, it seems like you

4 might want three weeks to go back to the

5 drawing board and meet as a subgroup, and

6 then, back in where you are meeting on voting

7 more consistently. Just thoughts from the

8 group on that?

9 MEMBER FERNSTROM: Well, this is

10 Gary for the California IOUs.

11 I think the answer is it depends. 

12 In the Pump Working Group, a lot of work was

13 done by the industry representatives between

14 meetings and by DOE's consultants, trying to

15 get sales data and other data being input into

16 the process correct.

17 But this opportunity doesn't have

18 quite the same requirements. So, my feeling

19 is, you know, not a lot of work is done other

20 than trying to come to agreement on the

21 recommendations and positions that we have.

22 MR. RAWALD: Right. It all seems
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1 like that that time may be used for caucusing

2 with your interests, to kind of go out there

3 and say, "Okay, folks, here is where we are. 

4 Is everyone okay with this before we proceed?"

5 But I don't see this being a very

6 data-heavy collection or a lot of work. As a

7 matter of fact, we probably will be doing more

8 work on our end, trying to keep everything

9 organized and getting the transcripts done. 

10 But, from the folks who are participating

11 otherwise, I think that there is no reason why

12 we couldn't do a meeting one week after the

13 other, as long as people are comfortable doing

14 that, understanding the limitations of our

15 schedule and the fact that we have to have an

16 answer soon.

17 MEMBER PORTER: Yes, Steve Porter

18 for HARDI.

19 I agree, we can't let this go past

20 October 30th. I mean, we have too many people

21 that are making inventory decisions, and this

22 rule has already cost them enough financially.
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1 MR. RAWALD: So, what it sounds

2 like, are people generally available? Let's

3 talk about the first meeting, August 27th and

4 28th. Are people generally available for

5 that? Is that going to be something that we

6 can put on the paper? We are going to do that

7 meeting for sure?

8 MR. EISNER: The 27th and 28th?

9 MR. RAWALD: Right. That first

10 meeting.

11 Let's just get the dates down, and

12 then, we will talk about the timing. So, as

13 far as that goes, those two days will work for

14 everyone? And then, we could go from there.

15 And then, what folks seemingly are

16 asking for is September 3rd and 4th. So, the

17 following week, having another meeting. And

18 then, two weeks off before we come back at the

19 end of September. So, that would be September

20 2nd -- or September 3rd and 4th.

21 MR. EISNER: Coming back two weeks

22 later would be the 24th and 25th.
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1 MR. RAWALD: Right. September

2 24th and 25th.

3 MEMBER MEYERS: So, neither of

4 those options work for me.

5 MR. RAWALD: Okay.

6 MEMBER MEYERS: I would just as

7 soon stay with the 17th and 18th at this

8 point.

9 MEMBER NOLL: What about the 15th

10 and 16th, just for that one week, a

11 Monday/Tuesday?

12 MEMBER MEYERS: I can't do that.

13 MEMBER NOLL: No?

14 One Tuesday out of the entire --

15 MR. RAWALD: Right. So, I will

16 try. If it works for everybody else, I will

17 try to make it work. I mean, my constraint is

18 a personal matter. It is not the

19 Department's. So, certainly the Department is

20 my boss. So, I will follow that.

21 MEMBER NOLL: Could we have a

22 substitute facilitator for the week of
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1 September 8th? Is that a potential?

2 MR. EISNER: It is more an issue

3 for the Department. They would have to hire

4 someone else.

5 MR. RAWALD: Right. Because of

6 Neil's contract, I think it is easier for me

7 to adjust my schedule than it would be for

8 Neil. So, let's do that. So, I don't want

9 hold anyone back.

10 If the 15th and 16th work, and

11 that doesn't conflict with this other

12 conference that Dave had mentioned to us

13 earlier, then perhaps we could put that

14 forward as the third meeting.

15 MEMBER LATTANZI: I have an idea

16 to throw out.

17 This is Matt Lattanzi.

18 How about can we propose maybe

19 that week of the 15th just having a one-day

20 meeting as opposed to the two? What does the

21 group think about that? It seems like it is

22 a very busy week for a lot of people in here.
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1 MEMBER MEYERS: Yes, I absolutely

2 can't do the 15th and 16th. I could do the

3 17th and 18th easier. So, as long as it is

4 one of those days, then -- I mean, there is a

5 conflict every day.

6 MEMBER FERNSTROM: So, I am in

7 that camp, too, Karen. This is Gary.

8 The end of the week works for me,

9 but the beginning doesn't.

10 MR. RAWALD: And, Dave -- this is

11 Doug Rawald -- so what are the dates of that

12 conference? I mean, is it --

13 MEMBER WINNINGHAM: It is the 17th

14 and 18th all day.

15 MR. RAWALD: Okay. So, would you

16 be able to accommodate the Friday?

17 MEMBER LATTANZI: Yes, how about

18 the 18th and the 19th?

19 MR. RAWALD: Or just do a one-day

20 on the 19th?

21 MEMBER WINNINGHAM: It is in Salt

22 Lake City.
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1 MEMBER ROCKY: Couldn't we have a

2 couple of days without a facilitator and see

3 what work we can get done? I mean, honestly,

4 we all know one another. We can get some work

5 done. So, we don't have a facilitator. When

6 he comes back in, we show him what we have

7 done in the meantime, and he facilitates from

8 there.

9 MR. EISNER: That is more your

10 decision.

11 MEMBER ROCKY: Yes. I mean --

12 MEMBER HARRIS: I nominate Doug as

13 the substitute facilitator, actually.

14 MEMBER ROCKY: So do I.

15 MR. EISNER: The question is --

16 and I realize you have got a rulemaking

17 requirement coming in, and you have got a

18 request from ASRAC. Is this the type of thing

19 where you want to ask ASRAC for more time?

20 (Chorus of noes from the group.)

21 MR. RAWALD: Well, let's turn back

22 to this September 2nd, that week of the first
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1 week of September. Karen voiced an inability

2 to come. Is that completely for the entire

3 week, Karen?

4 MEMBER MEYERS: The 4th is --

5 MR. RAWALD: So, you could come

6 for the 3rd?

7 MEMBER MEYERS: Right.

8 MR. RAWALD: And would you be able

9 to call-in on the 4th at all or would you --

10 okay. And would you be able to send an

11 alternate on the 4th?

12 Okay. Can everyone else be

13 available September 3rd and 4th?

14 Okay, Ray is shaking his head no. 

15 Okay.

16 MEMBER HARRIS: I will be in

17 Paris, and I'm not calling in.

18 (Laughter.)

19 MR. RAWALD: Right. That's fair.

20 And, Ray, could you send an

21 alternate to that meeting? Okay.

22 So, that is an option for the
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1 table, is that we could have a meeting without

2 Scott and with some alternates here for some

3 folks that are pretty involved. That is for

4 the 3rd and 4th.

5 MR. EISNER: So, we have generally

6 got agreement we can do the 27th/28th, the 3rd

7 and the 4th. There is a question about

8 whether you want to meet the next week without

9 a facilitator. Then, there is a question of

10 when the next meeting could be in September.

11 Nothing in that week of the 17th

12 and 18th works with anybody?

13 MR. RAWALD: It seems a lot of

14 conflicts that week. Everyone seems to have

15 something going on.

16 The 24th and 25th, now Karen

17 voiced a concern with those dates as well.

18 MEMBER MEYERS: Well, we have

19 industry meetings somewhere around the 24th.

20 MR. RAWALD: Okay.

21 MR. HURST: Could that be pushed a

22 day, Karen, because we would all be in D.C.? 
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1 I mean, if we could push that a day, that

2 would be perfect. We have GAC on the 24th. 

3 But, if you could push that to the 25th, that

4 would be perfect.

5 MR. RAWALD: So, how about we

6 tentatively agree to do the 24th and 25th?

7 And then, Karen, if you cannot

8 move that meeting, maybe we can consider doing

9 the 25th/26th and doing a Friday meeting, as

10 rare as that would be for folks.

11 Would that work for everybody?

12 So, Karen, if you can report back

13 to us, and how long it will take you to find

14 out if you can move that meeting?

15 MEMBER MEYERS: I will email you.

16 MR. RAWALD: Okay, great.

17 So, Amy, if you can just let

18 Jeremiah know, and he can blast everyone about

19 that.

20 MR. HURST: Could you do 24/25,

21 and then, move the GAC to 23?

22 MR. RAWALD: That is the initial
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1 position that we are taking.

2 MR. HURST: Okay. Thank you.

3 MR. RAWALD: And that is John from

4 Lennox, correct?

5 MR. HURST: Correct. Thank you.

6 MR. EISNER: All right. So, we

7 have the possibility of the 24th and the 25th. 

8 Then, we have got October 1st and 2nd, the

9 following week. Do we want to do that? That

10 allows us to, then, have another meeting in

11 mid-October.

12 MR. RAWALD: Right. What that

13 will do is we will have this meeting. Then,

14 we will have two meetings in a row in two

15 weeks. Then, we will have a break. Then, we

16 have two two-week meetings again.

17 Right. So, as long as folks are

18 interested in doing that, we can press forward

19 with that plan.

20 MEMBER FERNSTROM: So, this is

21 Gary.

22 This schedule will be a strong
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1 motivation for us to get together and work

2 things out quickly.

3 MR. RAWALD: Right. I agree.

4 MEMBER NOLL: So, if it is more

5 about just being in the room negotiating, if

6 we are going to have back-to-back meetings,

7 does it make more sense to have three days in

8 a row rather than four two-week -- I mean, I

9 am just throwing that out there. Do a

10 Wednesday, Thursday, Friday as opposed to

11 Wednesday/Thursday for back-to-back weeks, for

12 people who are coming from California.

13 MR. EISNER: That is especially

14 valuable if you want to start late on the

15 first day and end early on the last day, so

16 people can get flights out. Then, it is even

17 more valuable to have three days of meetings,

18 more efficient.

19 MEMBER NOLL: I'm here, so it is

20 not -- I'm coming, but I am just --

21 MR. EISNER: But I am mentioning

22 it for people from out of town.
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1 MEMBER PORTER: It is easier for

2 me on the West Coast, I know that, to do that. 

3 And I wouldn't be opposed on that October 1/2,

4 that we make it a three also, just because if

5 we get close, we could close the whole thing

6 out and may want to be available that Friday

7 to end it. And we wouldn't have an October

8 15/16.

9 MR. EISNER: A comment in the

10 back?

11 MR. SURRENA: Don Surrena,

12 National Association of Homebuilders.

13 The first week in October are the

14 International Green Construction Code hearings

15 being held in Fort Lauderdale. Some of you

16 suppliers may be going to that or may be

17 interested in it. That may form a conflict

18 for some people.

19 MR. EISNER: Thank you.

20 So, any interest in three-day

21 meetings?

22 MEMBER WHITE: This is Chuck
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1 White.

2 Three-day meetings don't bother

3 me.

4 As one who travels, I really need

5 three weeks' notice to get decent flights. 

6 So, the next meeting is two weeks. I am going

7 to bite the bullet on that, I guess. I know

8 we can call-in, but I don't think it is as

9 valuable to call-in as to be here. I think it

10 is important to be here. Having said that, I

11 may have to call-in for some of them.

12 But, when we hope to get done

13 early, those of us that travel are probably

14 going to be booking trips in advance of that. 

15 So, if we think we are going to get it done

16 the 1st, 2nd, and 3rd, the 15th/16th I really

17 need to have a ticket in my hand before the

18 1st, 2nd, and 3rd. So, for the traveling

19 folks, you are making it a challenge. But I

20 will do what I have to do.

21 MR. RAWALD: Well, how about we do

22 this: let's take an informal poll of who
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1 would prefer to have three-day meetings. 

2 Let's see how many people that would be a

3 preference for. You know, you would prefer to

4 have three-day meetings.

5 MEMBER WHITE: If it is a half and

6 a half.

7 MR. RAWALD: Right. I do hear

8 that. You guys are correct.

9 MR. EISNER: It is the same thing

10 if you do a two-day meeting if you come in at

11 noon on the first day and leave at 2:00 on the

12 second day. You have got a smaller meeting,

13 too.

14 MR. RAWALD: Uh-hum.

15 MEMBER SACHS: This is Harvey.

16 I am local. I get very tired in

17 three-day meetings. On the other hand, I

18 think there is an obligation to try to get

19 this off our table as quickly as possible and

20 as thoroughly. I hadn't thought about three21 day meetings, but I think it is something that

22 is worth trying at least to give this process
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1 a good shot at finishing up early. There is

2 just too much that has to be done when we are

3 done for DOE to get guidance out on the

4 street.

5 MEMBER WHITE: This is Chuck

6 White.

7 Having said that, why wouldn't we

8 be advised to try to do a three-day meeting

9 the next meeting, the 27th/28th, however that

10 works out, and see how it works? If we do get

11 a lot done, if it is beneficial, we can, then,

12 move from there. Instead of trying to do a

13 three-day meeting at the end, if we are going

14 to try to speed it up by doing a three-day

15 meeting, let's do it.

16 MEMBER SACHS: That's going into

17 Labor Day weekend.

18 MEMBER WHITE: Well, you're not

19 working anyway, right?

20 MR. RAWALD: Is that correct? I

21 thought Labor Day was September 8th.

22 MEMBER NOLL: Yes, but, I mean,
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1 the 29th is the Friday before Labor Day, the

2 Friday of Labor Day weekend.

3 MR. RAWALD: Labor Day is not

4 September 8th?

5 MEMBER NOLL: It is September 1st.

6 MR. RAWALD: September 1st. Oh,

7 okay.

8 MEMBER LATTANZI: This is Matt

9 Lattanzi.

10 I mean, I kind of like the idea of

11 a three-day meeting, and the week of August

12 25th sounds good. I mean, I do have some

13 issues with that September 24 and 25, presents

14 some problems, but I might be able to possibly

15 get an alternate.

16 MR. EISNER: Yes, I would have an

17 issue with the afternoon of the 29th. If we

18 could go the third day earlier in the week --

19 we are talking August now?

20 MEMBER SACHS: I nominate August

21 26th, 27th.

22 This is Harvey.
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1 I nominate August 26, 27, 28, with

2 the goal of a late-morning start the 26th and

3 an early close on the 28th.

4 MR. RAWALD: And I could do that. 

5 I mean, my teaching doesn't start until after

6 Labor Day. So, that is fine for me.

7 MEMBER ELLIS: This is Ray Ellis

8 from Lincoln Electric.

9 The three-day meetings I am all

10 for. But, if you start at noon, because I

11 have to start by horseback, I can't get here

12 in a half a day.

13 (Laughter.)

14 It takes too long. So, I have to

15 spend the day prior, you know, traveling. And

16 going home, it is almost the same thing. I

17 will leave here late in the day and get home

18 the next day.

19 So, if you are going to do three

20 days, I would just as soon do three full days.

21 MR. EISNER: Does the horse wait

22 for you to get back?
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1 MEMBER ELLIS: Yes, I've got it

2 tied up.

3 MR. RAWALD: Right. So, I think

4 all of us D.C. folks, we would have to defer

5 to the people who are traveling on the concern

6 about what time we start and what time we end

7 on these meetings, because the rest of us are

8 local.

9 So, for those of you who are not

10 local, if it sounds like you are going to get

11 here the night before anyway, which California

12 almost certainly will, and I imagine those

13 will, then we might as well start early and

14 end at a decent hour the last day. If you

15 could possibly catch a flight home that day,

16 I think that would be preferred, right, so you

17 won't pay for that night?

18 MEMBER ELLIS: Yes, the flight

19 leaves, mine leaves at 5:00 tomorrow.

20 MR. RAWALD: Okay.

21 MEMBER WHITE: I would second

22 that.
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1 It is Chuck White.

2 If we are coming for three days,

3 let's start the first thing on the first day

4 and end as late as we think we can on the

5 third day, and not half and half.

6 MR. EISNER: Everybody has agreed? 

7 Is everybody comfortable right now? We are

8 going the 26th, 27th, and 28th. And start on

9 the first day at nine o'clock in the morning? 

10 And on the second day, sometime late in the

11 afternoon? What would be the latest you --

12 MR. RAWALD: The third day.

13 MR. EISNER: The third day. I'm

14 sorry. What time is everybody comfortable

15 with? Do they want to go to 5:00 or do they

16 want to end early on the third day?

17 MEMBER ELLIS: I've got to leave

18 by 3:00.

19 MR. RAWALD: Okay, three o'clock

20 is what Ray is saying.

21 This is Doug Rawald.

22 MR. EISNER: Is three o'clock
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1 okay?

2 MR. RAWALD: Anyone else need to

3 leave earlier than that or is three o'clock a

4 good -- this is our steadfast stop time.

5 Karen?

6 MEMBER MEYERS: Are we talking

7 three-day meetings every time?

8 MR. RAWALD: No, Karen, we are

9 talking about the first time.

10 MEMBER MEYERS: Okay.

11 MR. RAWALD: Because we are going

12 to follow Chuck's recommendation of trying it

13 out, seeing if it is working, if having Harvey

14 sleep every meeting doesn't work -- (laughter)

15 -- and then, we will revisit the idea.

16 MEMBER MEYERS: Okay. I can

17 absolutely do the 26th, 27th, and 28th.

18 MR. RAWALD: Okay. And with three

19 o'clock being the solid end time on the 28th,

20 so people can catch all their flights and know

21 what they need to do. Does that work for

22 everybody?
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1 MEMBER MEYERS: That works for me.

2 MR. RAWALD: Okay. With a nine

3 o'clock start time on the 26th and a 9:00-to4 5:00 day both the 26th and 27th? Okay?

5 MR. EISNER: All right. So, we

6 have got the first two meetings. The third

7 meeting, September 3rd and 4th right now. Do

8 we want to keep that? Do we want to expand

9 that?

10 MR. RAWALD: Right. If we are

11 going to be here for three days the week

12 before, I would recommend we not have that

13 meeting September 3rd and 4th. I mean, that

14 is my thought.

15 MR. EISNER: That seems to be a

16 time everybody has got available, right?

17 MR. RAWALD: Right. So, I guess

18 it is up to you folks. It just seems like a

19 lot of travel on folks, but --

20 MEMBER NOLL: My suggesting the

21 three days was so that we weren't doing back22 to-back weeks.
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1 MR. RAWALD: Right.

2 MR. EISNER: I think this is a

3 Thursday and a Friday. Do you want to move it

4 to the 4th and 5th to give you a little bit

5 more time?

6 MEMBER NOLL: I can't do the 5th. 

7 Sorry.

8 MR. EISNER: All right. So, if we

9 don't do this meeting, do we want to do the

10 17th and 18th? That was a bad time. So, the

11 whole week is off. The week before that is

12 not good for me. That brings us to the 24th

13 and 25th, unless you want to do that meeting

14 in between.

15 Or do you want to do this as a

16 two-day meeting and make this a three-day

17 meeting?

18 MR. RAWALD: We are referring to

19 the September 3rd and 4th meeting, just for

20 the record.

21 So, the constraint here, it seems

22 to me, is that nobody wants to wait too long
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1 between meetings because we don't want to be

2 stuck without having a solution to this

3 problem. But we don't want to wait until the

4 next meeting to say, "Gosh, we need a meeting

5 now," because we can't buy tickets.

6 So, we definitely seem to need to

7 have a meeting in early September because

8 people don't want to be caught up at the end. 

9 So, while it seems awfully onerous, my

10 preference would be to try to schedule at

11 least a two-day meeting that September 3rd and

12 4th, just so we can give ourselves a little

13 room to maneuver here.

14 Okay, so let's go ahead and do

15 that. We will do a normal two-day meeting

16 September 3rd and 4th, understanding that Ray

17 has to leave at 5:00 p.m. on the 4th, right?

18 MEMBER ELLIS: I won't be here for

19 that.

20 MR. RAWALD: You won't be? You

21 can send an alternate. Okay. So, Ray will

22 send an alternate to that meeting. Okay.
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1 So, can those be both days 9:00 to

2 5:00 or do we need to end early on the second

3 day? Okay, so we will have those both be

4 9:00-to-5:00ers. Okay.

5 MEMBER LATTANZI: Okay. Are we

6 looking at September 23 and 24 or is it 24 and

7 -- or is it 25 and -- it looks like it is

8 written up there 25 and 26.

9 MR. EISNER: I thought we were

10 looking at 24 and 25.

11 MEMBER LATTANZI: That's what I

12 thought.

13 MR. RAWALD: Right. Amy has asked

14 for the big meeting to be moved to September

15 23rd, so we could, then, have everyone here

16 already and have the meeting the 24th and

17 25th.

18 So now, the question is, do we

19 want to create that into a three-day meeting,

20 thereby getting rid of the need to have a

21 meeting the following week in October, and

22 give us just a little more flexibility and
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1 maybe push two weeks out for the following

2 week in October?

3 So, basically, folks coming in on

4 the 23rd for the meeting would be here for the

5 entire week, for us as well. So, you would be

6 here for your 23rd meeting, if it happens, and

7 then, 24, 25, 26 for us, and then, we can meet

8 again in mid-October.

9 Does that seem like a doable

10 thing?

11 MEMBER MEYERS: Can you repeat

12 that?

13 MR. RAWALD: Okay. So, what I was

14 pitching as an alternate would be to have

15 September 24th through 26th as a three-day

16 meeting, and there would be no October 1st17 through-2nd meeting. So, that will give you

18 three days that week and eliminate the need to

19 travel here twice within a two-week period.

20 MEMBER SACHS: If we are going to

21 do that, September 24th, 25th, 26th, again,

22 I'm local; discount my vote. What about
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1 pulling up that 15th/16th meeting to the week

2 before?

3 MR. RAWALD: I think that would be

4 an idea that we can consider, yes.

5 MEMBER MEYERS: That is an

6 industry conflict.

7 MR. RAWALD: The 7th through the

8 8th? That week of the 7th of October?

9 MEMBER WHITE: Chuck White.

10 That is PHCC's convention. That

11 is our convention that whole week.

12 MR. RAWALD: Which week is that,

13 Chuck?

14 MEMBER WHITE: Between the 8th --

15 the week of the 8th.

16 MR. RAWALD: Okay. So, the second

17 week of October would be out for at least a

18 number of people in the room.

19 MEMBER WHITE: So, maybe that

20 means I don't have to go to the convention. 

21 Schedule it.

22 (Laughter.)
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1 MEMBER MEYERS: I know the 8th

2 would be a conflict for about half of the

3 room. Is it the 8th or the 9th?

4 MR. RAWALD: Right. Well, can we

5 do this then: we seem to have some general

6 consensus on at least the first two meetings. 

7 I don't want to put anyone in a bind in buying

8 tickets, but can we agree to these? Can we go

9 to the second meeting August 26th through

10 28th, and then, see how it goes to decide

11 about whether we need to have the meeting in

12 October or late September, where we are then? 

13 Or is that too much of a crunch for you folks

14 that are buying tickets?

15 MEMBER PORTER: This is Steve

16 Porter.

17 Are you saying take it through

18 September 24th/25th, and then, decide the

19 later ones?

20 MR. RAWALD: Right. Right.

21 MEMBER PORTER: I am okay for

22 that.
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1 MR. RAWALD: Okay. So, we will

2 have on the schedule, at least in The Federal

3 Register, it will a meeting August 26th

4 through 28th, that's three days; a meeting

5 September 3rd and 4th; that will be two days,

6 and a meeting September 24th and 25th, that

7 will be two days. And then, more meetings may

8 be scheduled as we decide as we move along in

9 the process that we need more meetings. Does

10 that work for everybody?

11 MR. EISNER: The only thing I

12 would point out is that scheduling a meeting

13 now doesn't do any harm. You pick the best

14 day and nobody puts anything on there.

15 MR. RAWALD: Uh-hum.

16 MR. EISNER: If you put it off for

17 even two weeks, somebody is going to have

18 something else come up.

19 MR. RAWALD: Uh-hum.

20 MR. EISNER: And they are no

21 longer available.

22 MEMBER PORTER: The dates that are
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1 out there, the 1st and 2nd and the 15th and

2 16th, block them on our calendars.

3 MR. RAWALD: Right. I think Steve

4 is right. Everyone block off that first and

5 third week of October as tentatively needing

6 to be here. We won't advertise that to the

7 public. I don't want people buying tickets

8 who are not members of the Board, thinking

9 that, hey, there will be a meeting. But we

10 will have them blocked off, and we can discuss

11 at the end of next week or the two weeks from

12 now meeting, hey, do we think we need an

13 October meeting? If we do, then let's

14 schedule it and get it on the books. Does

15 that work for folks?

16 MEMBER SACHS: Can we arrange to

17 have this mailed out as invites this

18 afternoon, so we can get it without mistake

19 into our calendars?

20 MR. RAWALD: Jeremiah is very

21 well-educated in the use of Outlook. And so,

22 he will make sure we all have a calendar
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1 invite in our mailboxes for these various

2 things.

3 Okay. So now that we have

4 consensus on these dates, what is your feeling

5 here?

6 MR. EISNER: Yes. I mean, I think

7 everybody sees the dates now, and we know that

8 it is difficult for some people.

9 Anybody object?

10 (No response.)

11 The last two are going to be

12 listed as tentative, but they will be set up

13 so you can block your calendar with them.

14 No objections? Comment?

15 Go ahead.

16 MEMBER ROY: Aniruddh Roy with

17 Goodman.

18 Gary Clark is the primary rep on

19 this one. I think he is going to have an

20 issue with the September 3rd and 4th date, but

21 I can't confirm. He is on his way back from

22 his vacation today. So, he will be here
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1 tomorrow, though.

2 MR. RAWALD: Do you have an issue

3 with those dates?

4 MEMBER ROY: I don't have an issue

5 with those dates.

6 MR. RAWALD: Then, we are in good

7 stead.

8 (Laughter.)

9 I mean, let's be honest. 

10 Everybody has alternates for a reason. So, we

11 understand everyone is very busy. And so, we

12 want to make sure that you have the ability to

13 be here, but your alternate could be here.

14 We also have done the best we can

15 to make technology available to us, to make

16 sure if you can't be here, we can do it.

17 As Chuck notes, being here in

18 person makes a difference, and that is why we

19 encourage that. So, please, we know you have

20 constraints, but keep that in mind.

21 MR. EISNER: Okay. Any other

22 questions?
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1 (No response.)

2 All right. We have got a

3 schedule.

4 Why don't we take a 15-minute

5 break? Come back at about 25 to 3:00.

6 (Whereupon, the foregoing matter

7 went off the record at 2:21 p.m. and went back

8 on the record at 2:36 p.m.)

9 MR. EISNER: Can everyone take

10 their seat?

11 Okay, the next thing on our list

12 -- well, let's give people a few more minutes,

13 I guess, another minute.

14 (Pause.)

15 All right. We are now up to

16 getting close to substance in the sense that

17 we want to put down what we think are our

18 objectives and the scope of what we are doing. 

19 What I would like to see come out of this

20 session is I would like to see us decide on

21 what we want to discuss and in what order we

22 want to discuss it.
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1 I don't know if we want to call

2 them identifying the issues, list those issues

3 that we have to discuss and resolve in some

4 way, or if we want to think about how a

5 regulation would be written and you want to

6 set out each part of the regulation that you

7 think would be necessary or the discussion

8 that would help you decide whether a

9 regulation was necessary.

10 So, this is going to be a little

11 free-form, and we will try to keep putting

12 ideas up on the screen and start to focus on

13 what will help us best. But what you want to

14 think about is a document that we can, then,

15 use over the next several weeks to decide what

16 ought to be done to address the statutory

17 mandate.

18 MEMBER DORIA: This is Jordan

19 Doria with Ingersoll Rand.

20 I recommend that we consider the

21 issue of scoping first. I think we need to do

22 that before we get to objectives.
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1 MR. EISNER: Okay. Anybody

2 disagree with that? Do you want to talk about

3 scope first? Anybody disagree with talking

4 about scope first?

5 (No response.)

6 All right. Do you want to start

7 it off on scope?

8 MEMBER DORIA: Well, I can at

9 least offer something that I have wanted us to

10 discuss on the issue of scope. Obviously, I

11 understand that what is going to come out from

12 this is sort of an enforcement plan along with

13 or that will be a part of an actual rule from

14 the Department.

15 I think some in this room,

16 including Ingersoll Rand, are interested in

17 what role FTC will play in this and what, if

18 any, changes to specifically the FTC energy

19 value label can be considered by this group,

20 again, recognizing that DOE doesn't have the

21 power to change FTC and it has its own

22 rulemaking. But to what extent can we
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1 consider FTC in our negotiations?

2 MR. RAWALD: And this is Doug

3 Rawald.

4 So, I can actually answer some of

5 those questions because I don't want to get

6 hung up on some of this stuff. So, the FTC is

7 represented by a gentleman named Hampton

8 Newsome, who is not available today or

9 tomorrow, so he is not here. He will,

10 hopefully, come to future meetings to at least

11 participate as a public member. He will not

12 be a member of the Board.

13 ASRAC is empowered only to deal

14 with DOE. So, whatever we do with ASRAC

15 cannot be part of what FTC does.

16 What Hampton has explained to me

17 is the label, as adopted in their final rule

18 issued last year, was designed based upon

19 Notice of Comment, but they have a final rule

20 out there. And so, we should keep it in mind.

21 And what we do here may affect

22 what they want to do with that label. So, we
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1 should consider what the label looks like now

2 and if what we are going to do is going to

3 change the effect of that label and how it

4 works.

5 He views the label to be only of

6 use in the fact that it affects how things are

7 installed. And so, it puts people on notice,

8 "Hey, listen, the installers are putting this

9 into your house," and so, you should be aware

10 of this thing is either illegal or illegally

11 put in your house. So, that is how he views

12 it in his discussion with me off the record on

13 this.

14 So, it may be that what we do as

15 an enforcement mechanism may require them to

16 change the label to meet those needs. And so,

17 we should be, I think, cognizant of that. And

18 I do want us to think about, okay, do we want

19 to make FTC aware, hey, in order to make our

20 enforcement scheme work, we recommend you

21 might consider these changes to the label. 

22 But nothing we do here will be binding on
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1 them.

2 But I definitely think we should

3 at least consider as part of our scope how

4 would what we are doing affect the label or

5 take into account what is on the label as

6 designed right now. And what I can do for

7 tomorrow is I can actually make copies of the

8 label available for everyone to kind of look

9 at, and we could discuss that. So, folks can

10 see what the label has on it and how that

11 impacts what we are talking about.

12 MEMBER LATTANZI: This is Matt

13 Lattanzi.

14 Can I suggest you make copies of

15 the label for the three different regions?

16 MR. RAWALD: And this is Doug

17 Rawald.

18 So, I will do that. So, the label

19 actually -- you know, we are going a lot into

20 the FTC stuff, which I don't want to do too

21 much of. But it is one label for the region,

22 but it indicates what the different regions
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1 are and what the impact of it in the region

2 would be. But we can discuss that more

3 tomorrow.

4 But, for scoping purposes, what I

5 would say the scope is, it certainly should

6 include what we think of the label, but

7 understand that we can't control what is going

8 to be on the label because that is not part of

9 our bailiwick here.

10 MR. EISNER: John?

11 MR. HURST: Yes, while we are

12 talking about other federal agencies, I think

13 a lot of us would like clarification around

14 how dry ship equipment is going to be handled

15 under regional standards and maybe seek

16 further clarification how we will collectively

17 deal with that.

18 MR. RAWALD: Right. And, John,

19 just so I am clear, you are talking about R22

20 specifically?

21 MR. HURST: Yes. Right.

22 MR. RAWALD: Okay. So, that is an
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1 issue that definitely the departments are

2 aware of. There is draft guidance that has

3 been out from that Department for a while now

4 on this very issue, and it is one the

5 Department is working on.

6 So, as far as however in dry

7 shipment we want to play with regional

8 standards, and how we can enforce it, I think

9 that is a worthy issue to throw onto the

10 scope. And certainly, we want to talk about

11 that.

12 How the Department is going to

13 govern overall the use of dry shipments and

14 R22s is maybe beyond the scope, except for how

15 it deals with the regional standards and how

16 that interplays with one another.

17 MEMBER SACHS: This is Harvey.

18 I just want to strongly support

19 that item.

20 MR. EISNER: Other thoughts? 

21 Other comments? Other scope issues?

22 MEMBER LATTANZI: Well, this is
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1 Matt Lattanzi.

2 I don't know if it is a scope

3 topic, maybe it is, but I am throwing out an

4 idea as a possible starting point, or maybe it

5 is somewhere in the middle. But there are

6 some documents that are out there. The

7 Department of Energy has put forth a framework

8 document, and there have been comments to

9 that. ARI has submitted comments. Other

10 organizations have submitted comments. So, we

11 have those documents available to us to look

12 at as well.

13 MEMBER NOLL: I would also -- this

14 is Elizabeth with NRDC -- include in that, to

15 the extent that the settlement agreement that

16 was part of the furnace litigation impacts our

17 discussions here, that maybe they are

18 available or part of a discussion.

19 MR. RAWALD: This is Doug Rawald.

20 So, I hear Matt and Elizabeth

21 talking about resources we should consider,

22 but not necessarily the scope of the
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1 negotiations, but things that we should all

2 look at in getting informed on the issues. 

3 And I think that those are all things that

4 should be made available.

5 The stuff that Matt referred to

6 specifically, the notice put forward by the

7 Department in 2011 and the number of comments

8 received by the Department, most of which were

9 dealing with furnace, but still many of them

10 are pertinent to what we are dealing with

11 today, are available on the docket for this

12 particular rulemaking.

13 And so, what we can have is, I can

14 have Jeremiah throw out a link to the docket,

15 so folks can look at those documents, because

16 there are a number of them that would be

17 salient and of interest to those folks today.

18 People have put forward different

19 ideas and different thoughts on what the best

20 enforcement idea would be. And I think

21 reviewing those documents will help make us

22 all more knowledgeable about what we can do
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1 here to make this work.

2 So, that is a good point, but

3 somewhat aside from the actual scope of the

4 negotiations we are going to have here.

5 So, it sounds like we have at

6 least two ideas for things that should be

7 within the scope, right? The dry shipment

8 issue as it relates to regional standards and

9 how it would be enforced, as well as, also, at

10 least some sort of thoughts on how the label

11 would interplay with what we do here.

12 But are there any more thoughts

13 about what the scope would be? From the

14 Department's point of view, the scope really

15 needs to be, what is an effective enforcement

16 plan? I mean, what is going to work? And so,

17 that is how I am looking at it: what can work

18 from a national federal level in enforcing

19 these regional standards? So, anything from

20 the folks here that might help ferret out that

21 from a scope point of view.

22 Yes?
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1 MEMBER WINNINGHAM: I'm sorry.

2 MR. RAWALD: Yes?

3 MEMBER WINNINGHAM: This is Dave

4 from Allied Air.

5 I think one of the key points of

6 maybe clarity is definitions, in the various

7 areas of the country and collectively coming

8 to some consensus around what constitutes a

9 system or a component.

10 MEMBER HOURAHAN: This is Glenn

11 Hourahan with ACCA.

12 Adding to that, and very much

13 similar to what David has suggested, under

14 definitions is we need to define what is an

15 illegal act under the regional standard as

16 well. So we clearly know which parties are at

17 fault by not doing X, Y, or Z.

18 MR. RAWALD: So, what, illegal act

19 or a legal act?

20 MEMBER HOURAHAN: Illegal act.

21 MR. RAWALD: Illegal? Okay. What

22 would be a violation of the law?
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1 MEMBER HOURAHAN: Correct.

2 MR. RAWALD: Okay.

3 MEMBER SHEPHERD: And this is Amy

4 Shepherd.

5 And I think just to clarify that a

6 little bit, too, it is like what is the

7 enforcement action that DOE will be bringing? 

8 Who are the responsible parties? Because,

9 from that, you can inform what DOE is going to

10 need to bring that action.

11 MR. RAWALD: And, Amy, could I

12 suggest we use as our term any consequences of

13 the actions? Because I don't want to say that

14 enforcement always needs to be a stick, right? 

15 Enforcement can be a carrot. So, I mean, we

16 could at least be amenable to talking about,

17 are there any things we could do to applaud

18 people for complying with the law? That would

19 also be a thought. So, consequences, both

20 positive and negative.

21 MEMBER SHEPHERD: No, I think that

22 is true. And I guess, related to that, I
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1 would say we also should consider whether

2 there are any safe harbors that could

3 encourage --

4 MR. RAWALD: Okay.

5 MEMBER SHEPHERD: -- activities or

6 other things that are done that would be

7 helpful to the Department and could kind of

8 facilitate towards enforcement without having

9 an action.

10 MR. EISNER: Other thoughts?

11 MEMBER HOURAHAN: Glenn Hourahan.

12 I am also thinking that we need to

13 talk about the enforcement of the grace period

14 during this installation. So, we have a

15 pretty lengthy grace period for the

16 manufacturers, through the distributor,

17 through the contractor installation. And that

18 puts some wrinkles in there as well. So, we

19 need to keep that issue in mind.

20 MR. RAWALD: And, Glenn, this is

21 Doug Rawald.

22 I want to make sure I know what we
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1 are talking about here. So, are you referring

2 to the guidance issued by the Department after

3 the furnace litigations saying there will be

4 an 18-month grace period for the sell-through

5 of previously-manufactured units that don't

6 comply with regional standards, so they can be

7 installed in regions where they are not

8 allowed during that 18 months? Is that what

9 you are talking about?

10 MEMBER HOURAHAN: Correct.

11 MR. RAWALD: Okay. We could talk

12 about that, how that will work.

13 MEMBER HOURAHAN: There is a lot

14 of confusion.

15 MR. RAWALD: Uh-hum. And so, one

16 thing that Glenn and Charlie from ACCA

17 approached me about before this meeting was

18 whether it would be useful from the folks here

19 in the room to have a presentation by the

20 Department about what exactly, a reminder of

21 sorts of what the standards are and what the

22 various things we have said about the
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1 standards and enforcement of them, up-to-date,

2 so everyone is kind of on the same page. 

3 Because there are a couple of different things

4 we have said.

5 So, I could definitely put that

6 together and do that first thing tomorrow

7 morning, if that will be helpful to folks. 

8 So, I think that might be a nice way to

9 spend --

10 MR. EISNER: Would other people

11 want this?

12 (Chorus of yeses from the group.)

13 MEMBER WINNINGHAM: This is David,

14 Allied.

15 I think that would be very helpful

16 because I think some of DOE's current

17 perspective, you know, their perspective on

18 some of these definitions will help guide what

19 we think may or may not work from an

20 enforcement perspective.

21 MR. RAWALD: Uh-hum. And, Dave,

22 this is Doug.
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1 So, responding, well, I want to

2 make sure everyone understands this. I don't

3 want to be seen as pushing a position on

4 everyone else. For me, this is really a

5 brainstorming. There is a lot of, "Hey, come

6 to us with the ideas of what you think will

7 work," because you guys see the industry from

8 different levels and how it works day-to-day

9 and how this will work best. So, that will be

10 really important to me.

11 But I definitely can give you a

12 better idea of what works from our point of

13 view and what we use every day and what won't

14 work or what I think won't work from our

15 ability to implement, which I think is why I

16 am here.

17 MEMBER WINNINGHAM: Yes. And

18 again, this is Dave from Allied.

19 I guess I would regard that as a

20 starting point for the discussion.

21 MR. RAWALD: Uh-hum.

22 Charlie?
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1 MR. McCRUDDEN: Charlie McCrudden,

2 ACCA.

3 So, with that presentation you do

4 tomorrow, you may also want to talk about what

5 regs are there right now that you have for

6 enforcement purposes, because I think a lot of

7 us understand that right now the only entities

8 you can enforce against are manufacturers.

9 MR. RAWALD: Right. So, I don't

10 want that last sentence you said because I

11 think it is a little more complicated and

12 nuanced.

13 MR. McCRUDDEN: Right.

14 MR. RAWALD: As a lawyer, I am not

15 going to say that. So, I will push back on

16 that.

17 But I will certainly give a

18 thumbnail sketch of what our prohibited acts

19 are and how we enforce those things, so people

20 can understand kind of the tools we have at

21 our disposal and how they might be able to be

22 used in this context to help us meet these
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1 regional standards.

2 MR. McCRUDDEN: Actually, to

3 follow up before John cuts in, to clarify

4 Glenn's point about the grace period, you

5 know, we will have 13 SEER condensing units

6 manufactured after January 1st, 2015 that

7 potentially are a liability or a potential

8 violation. And so, that is the clarification

9 there on the grace period, not so much on the

10 sell-through aspect of unsold inventory,

11 but --

12 MR. RAWALD: I will make that

13 answer clear.

14 MR. McCRUDDEN: -- yes, "new," new

15 inventory.

16 MR. RAWALD: Understood.

17 MR. EISNER: John?

18 MR. HURST: John Hurst from

19 Lennox.

20 I think also it may be implied in

21 the definition what constitutes a system or a

22 component; also, a definition on what
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1 constitutes a manufacturer.

2 MR. RAWALD: And I hear that,

3 John, but we do have a definition for

4 manufacturer already. We don't have one

5 specific to central air-conditioner. We do

6 have one from EPCA that we do rely upon.

7 MR. HURST: Okay.

8 MR. RAWALD: What I think is of

9 note in the statute, what I think is

10 interesting -- I will put it out to the group

11 -- is there are a lot of terms used in the

12 statute that are not defined in EPCA. So, the

13 ones that are of note to me are contractor,

14 installer. Those terms are not defined in

15 EPCA, and I would put forward to the group I

16 would like to define those terms as part of

17 this. I think that would be helpful, to come

18 up with a definition of those terms.

19 MR. HURST: Agree, yes.

20 MEMBER FERNSTROM: This is Gary.

21 So, I think the discussion of a

22 grace period really only has relevance to
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1 equipment that is being manufactured or is in

2 the supply chain, maybe in distribution or in

3 the manufacturer's warehouse.

4 The issue here is that, come the

5 effective date, that non-compliant equipment

6 not be installed in those states that have the

7 higher standard. And to the extent that non8 compliant equipment for those regions is going

9 to continue to be available, a grace period

10 for product is kind of irrelevant.

11 The point is, when I, a

12 contractor, go out and install a piece of

13 equipment in California, it needs to be

14 compliant. It doesn't matter whether the

15 manufacturer or the distributor has non16 compliant equipment in their warehouse or not.

17 The piece that I buy and install needs to be

18 compliant.

19 MR. RAWALD: Right. And so, this

20 is something I will talk a lot about tomorrow,

21 so folks can really understand. We do have

22 guidance on this very issue.
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1 And so, what I think is

2 significant to scope is there is a different

3 treatment for an 18-month period of things

4 manufactured before January 1st and things

5 manufactured after January 1st. And there

6 will be a different treatment of things, you

7 know, come July 1st of 2016.

8 And so, I think what is important

9 for us is to decide, is there going to be an

10 evolving enforcement scheme that takes into

11 light this guidance that we will discuss

12 tomorrow that will work one way for those 18

13 months and, then, work slightly different when

14 it actually matters from a manufacturer point

15 of view?

16 And so, I think that is an

17 important kind of part of the scope, is: will

18 the enforcement program kind of evolve as this

19 grace period goes away that does exist under

20 our guidance right now? And I will talk about

21 it tomorrow, so I keep you up-to-speed here. 

22 Okay? So, that is definitely of interest, is
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1 how we will do that.

2 MEMBER SACHS: This is Harvey.

3 And I am repeating in a different

4 form an earlier question I think from John. 

5 Are you going to --

6 MR. RAWALD: From John Hurst from

7 Lennox?

8 MEMBER SACHS: John Hurst from

9 Lennox.

10 MR. RAWALD: Okay.

11 MEMBER SACHS: Are you going to be

12 addressing this key question of what is a SEER

13 14 unit?

14 MR. RAWALD: So, what I hear you

15 saying is, in the cases of split-system

16 central air-conditionings where there is a

17 SEER difference by the indoor coil versus the

18 outdoor condensing unit --

19 MEMBER SACHS: For that matter, by

20 the air-handler fan, the so-called furnace

21 fan.

22 MR. RAWALD: So, a blower-only
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1 test versus a coil test?

2 MEMBER SACHS: I am asking only at

3 this point whether you are going to be

4 addressing the Department's view on this or if

5 this is --

6 MR. RAWALD: Right. So, I am not

7 here to give guidance on things the Department

8 has not given guidance on. So, things the

9 Department has already said I will certainly

10 relate and explain in context. There are

11 other issues that the Department is currently

12 working on that I am not the one to speak

13 about those issues. I am not the one to give

14 guidance on it.

15 MEMBER SACHS: That is very

16 helpful. But, at the risk of being blunt --

17 MR. RAWALD: Uh-hum.

18 MEMBER SACHS: -- I think that is

19 an area where we need, I personally feel that

20 is an area where we need to understand what

21 the Department is doing right now because it

22 is an absolutely first-order concern where the
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1 rubber hits the road, particularly when we

2 remember that something in the range of 70 to

3 80 percent of all installations of split4 systems are replacements for existing units.

5 MR. RAWALD: Uh-hum. Right. So,

6 I guess what I would flip this back to be,

7 because we are really focusing on what the

8 scope of the discussion and the negotiation

9 will be, is, do you want to include in the

10 scope an "ask" to DOE to explain better

11 certain issues that we think are relevant, at

12 least tangentially, to the ability to enforce

13 these regulations?

14 And if we are, let's define those

15 as part of the scope of the negotiations. 

16 Let's say, you know, we want to make part of

17 the scope of these negotiations laying out

18 those things we need clarity from DOE on in

19 how they are doing their business.

20 MEMBER SACHS: Well, with all due

21 respect --

22 MR. RAWALD: Uh-hum.
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1 MEMBER SACHS: -- if that is not

2 done in parallel with this process, we ain't

3 never going to make a deadline.

4 MR. RAWALD: No, and I do hear

5 what you are saying.

6 MEMBER SACHS: So, I don't know if

7 anyone else in the room agrees with me. I

8 haven't discussed this with others. But I

9 think we have to early in our conversations

10 confront this issue.

11 MR. RAWALD: Right. So, Neil has

12 put forward the plan of, hey, we provide what

13 needs to be talked about. And if you think

14 that the very first thing out of the gate

15 needs to be what do we need DOE to clarify,

16 then let's make that the first issue and let's

17 engage on that tomorrow. Let's say, what are

18 those things that DOE needs to make clear

19 about what they are doing currently that will,

20 then, help us understand the scope of the

21 playing field that we are talking about for

22 enforcement of these regulations?
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1 MEMBER SACHS: I am actually

2 thinking a little bit more broadly --

3 MR. RAWALD: Okay.

4 MEMBER SACHS: -- which relates to

5 the question of to what extent this is our

6 responsibility. We have some responsibility

7 and interest in influencing what DOE is trying

8 to come up with in these areas.

9 MR. RAWALD: Uh-hum.

10 MR. EISNER: Explain what you mean

11 by that. As opposed to? DOE has got a

12 statute. What would you do to implement that

13 statute?

14 MEMBER SACHS: Neil, you have

15 never heard me say this, but I don't know. 

16 The statute governs the central air17 conditioner, and unlike so many other

18 products, the central air-conditioner is a

19 system in which the rated performance depends

20 on the interaction of three separate

21 subcomponents which are not perfectly

22 separated or integrated in the regulations and
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1 the law.

2 So that I can imagine a number of

3 different outcomes, and I am sure the

4 manufacturers have thought enormously about

5 it. And the different outcomes have vastly

6 different implications for the contractors and

7 for DOE and enforcement, and for me in energy

8 savings nationally.

9 I can take the same outdoor

10 condensing unit, and depending on the inside

11 unit that I match with that, or whether I use

12 the one that is already there when I have

13 blown out the condensing unit, I can get a

14 rather different SEER value.

15 If I use the existing furnace fan,

16 the existing furnace with its fan -- and it is

17 one that is 90 percent of the market today --

18 I will get a relatively-low SEER value. If I

19 claim that I am actually matching this to one

20 with an advanced motor, I am claiming that the

21 SEER might be a point or a point-and-a-half

22 higher.
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1 So, these are issues that reach

2 deeply into the installation process. And

3 until I have a better understanding of what we

4 mean by a central air-conditioner rated at

5 SEER 13 or at SEER 14, I don't know how to

6 think about how to do enforcement. But I may

7 just be too naive or --

8 MR. EISNER: Does everybody else

9 feel the same way?

10 MR. HURST: Yes. John Hurst with

11 Lennox.

12 I would agree with him.

13 MR. EISNER: Whoa. Obviously, a

14 good question.

15 (Laughter.)

16 MR. HURST: Yes.

17 MR. EISNER: I'll leave now.

18 (Laughter.)

19 Why don't we start from right to

20 left?

21 MR. RAWALD: So, this is Doug.

22 So, as Harvey has rightly
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1 acknowledged, some of these things, some of

2 these issues are ones that are decided outside

3 the scope of this negotiation. I mean, there

4 are things that will be decided by the

5 Department or are currently being worked on by

6 the Department. But they have implications

7 for how enforcement would be done.

8 And so, what I think we need to do

9 is think about how, if varying scenarios took

10 place, we would best enforce, just so we can

11 kind of keep our eye and maybe influence the

12 air policymakers going the other way.

13 That being said, I am obviously

14 handicapped here. We don't have a decision on

15 those things. And so, I don't have guidance

16 to point to, to give to you guys and say,

17 "This is where we are."

18 MEMBER SACHS: All right. I am

19 going to get out ahead of myself, and it is

20 going to sound disrespectful now. This is

21 Harvey.

22 MR. RAWALD: Uh-hum.
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1 MEMBER SACHS: There is an

2 infinite number of permutations that we could

3 chase down an infinite number of rabbit holes. 

4 If we do not speak with the Department and

5 come to understand where they are going, where

6 we might have influence, where we might not,

7 this series will not converge, as the

8 mathematicians would say. We will not be able

9 to reach a consensus.

10 And my belief -- now I think there

11 are a few other people who wanted to comment

12 on this question of what is a SEER 14 or

13 something -- but I don't think we can allow a

14 separate silo of DOE technical consideration

15 and our enforcement without understanding each

16 other about what we mean by the terms.

17 MR. RAWALD: No, I hear what you

18 are saying, and I do, and I will take that

19 back to the appropriate people. All I can say

20 is I am sorry that I am coming to you with one

21 arm tied behind my back.

22 MEMBER SACHS: Absolutely
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1 understood. All we are asking is that you

2 carry the message.

3 MR. RAWALD: Uh-hum.

4 MR. HURST: With the other arm.

5 (Laughter.)

6 This is John Hurst with Lennox.

7 I think I feel your pain.

8 I think, Harvey, if I could boil

9 down what you said, you are saying that it is

10 hard to develop an enforcement scheme for

11 something that you don't know what you are

12 trying to enforce. And so, there is

13 confusion. There is an ability to cheat.

14 We can be technically in alignment

15 with the regulation, but I don't want to be

16 technically compliant; I want to be compliant. 

17 And to get there, I think there needs to be a

18 much higher level of clarity. And then, we

19 can develop an enforcement regime around what

20 it is we are trying to enforce.

21 But, right now, I just think there

22 are too many opportunities to interpret
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1 different ways. And I think we want clarity

2 as to what we are actually doing. And then,

3 it becomes easier to enforce because there's

4 clarity around what it is you are trying to

5 enforce, if that makes any sense.

6 MEMBER SACHS: This is Harvey.

7 And if I might respond, to those

8 of us in the room who are efficiency

9 advocates, the lost savings represented by the

10 massive sales of dry-shipped R22 units

11 represent a massive regulatory failure. They

12 represent a massive regulatory failure to many

13 of the manufacturers.

14 It was not predominantly a DOE

15 issue, but it certainly, I think, makes all of

16 us very, very concerned that we reach the kind

17 of clarity that John Hurst is referring to. 

18 I personally, and I think for my organization,

19 would state that I have a hard time believing

20 that we can both do that and be timely without

21 having interaction with the Department to know

22 what we are developing enforcement for.
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1 MR. RAWALD: I do hear that. So,

2 what I would suggest is that we tee-up as an

3 initial issue as part of the scope of the

4 negotiations what things do we need to know in

5 order to develop an effective enforcement

6 plan, because that is the ultimate goal.

7 And so, if we can lay out, "Hey,

8 DOE, we need to know these five things," "And

9 if I don't know them, I can't do what you have

10 asked me to do, ASRAC," then that is going to

11 be a stopping point. And so, I think that

12 should be the first hurdle we cross.

13 So, if folks could caucus tonight

14 and come up with their list and come back

15 tomorrow and say, "Doug, boy, I wish we were

16 smarter on these things, and here are the five

17 things I need you to go back, get answers to

18 before our meeting on August 27th, 28th,

19 29th," the dates we set, I will do that. So,

20 let's make that our first order of business.

21 MEMBER SACHS: You just heard me

22 on it.
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1 MR. RAWALD: I know. Right.

2 MEMBER WINNINGHAM: This is Dave

3 with Allied.

4 I agree with Harvey and with John. 

5 We really need clarity around these

6 definitions of what constitutes minimum

7 national standard and what meets minimum

8 regional standard products.

9 We have a very, or could have an

10 overlap where it is very unclear whether a

11 product is compliant or not. And the

12 enforcement strategy around that could be

13 relatively simple or very complex, depending

14 on the outcome of that.

15 MR. EISNER: Let me make sure I

16 understand where we are going here. If we

17 need to have more clarity, more definitions,

18 and we agree on that need and we agree on the

19 definitions, is it going to tie the hands of

20 other decisionmakers in DOE? Are they going

21 to say, "Wait, we can't live with that

22 definition."?
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1 MR. RAWALD: There are certain

2 things that we don't have the authority to

3 define here. We just can't. But there are

4 things that we could say. We can't go forward

5 without knowing how DOE considers that.

6 And I think that is the "ask" that

7 I am putting out to the group, is: do you

8 want to make as part of your scope, "Hey, DOE,

9 we need clarity on this in order to tell you

10 what to do next."?

11 MR. EISNER: And that is something

12 that has got to be done right away for us to

13 meet our deadline.

14 MR. RAWALD: I think so.

15 MR. EISNER: And what is the

16 possibility of getting that kind of reaction

17 by the time we need it?

18 MR. RAWALD: You know, I can only

19 offer the I will do my best for the behalf of

20 the group to get an answer to these questions. 

21 But these are issues that everyone knows

22 about. I mean, I would say everyone in the
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1 room does, and DOE is well aware of them. And

2 I know there have been discussions about these

3 issues. But, until something is out there, my

4 hands are tied, right? So, that is what I am

5 saying. So, I don't know.

6 MR. EISNER: I mean, let me put it

7 bluntly, who are those people who need to be

8 invited to the meeting to explain where they

9 are and how they will work with this process? 

10 I don't know enough about this to know if that

11 is a fair question or not.

12 MR. RAWALD: Yes, I just don't

13 know, because of the way the deliberative

14 process works in rulemaking and guidance,

15 whether they can tell you anything until such

16 point as things are allowed to be released,

17 right? So, the government is a big place

18 before things come out.

19 MR. EISNER: But you have a

20 deadline.

21 MR. RAWALD: Right. I understand

22 that. And so, I will reflect that back to
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1 those people this evening when I talk to them.

2 MEMBER SACHS: Perhaps others who

3 were there last summer can refresh my memory

4 and help, but I seem to recall that there was

5 an awful lot of defining of terms -- for

6 example, basic model -- in the negotiated

7 rulemaking last summer.

8 And what I am hearing from you is

9 perhaps that DOE is at a different point in

10 the cycle and can't have these discussions. 

11 I mean, that would be very strange.

12 Ashley just came in.

13 MR. RAWALD: Yes. Right. So,

14 Ashley came in, and she is one of the people

15 that are involved from a technical point of

16 view on these things.

17 So, I want to be clear. This

18 group has mandate that is related to the

19 enforcement of regional standards. Some of

20 what you are asking about goes to a broader

21 picture beyond these regional standards issue. 

22 And they involve things that are beyond what
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1 I believe to be the mandate of this group.

2 And so, those things are being

3 worked on outside this group. But I

4 understand they will be relevant to this

5 group. And so, whereas defining a basic model

6 was necessary for the Commercial Certification

7 Working Group because you were trying to

8 define how you would certify basic model, and

9 it was very endemic to that, what we are

10 talking about here is somewhat outside of

11 that.

12 So, I am not trying to call

13 discussion. I am not trying to say you can't

14 do certain things. I am just trying to say

15 there are some things that -- I mean, I want

16 to say I will bring back all these ideas to

17 the people I talk to, but there will be some

18 things that will be off of the scope of this

19 negotiation. I mean, dictating the policy on

20 R22 drop shipments at large, you know, that is

21 going to be a little more beyond the scope.

22 MEMBER SACHS: This is Harvey.
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1 MR. RAWALD: Uh-hum.

2 MEMBER SACHS: To me, the

3 definition of what is allowed to be considered

4 a SEER 14 system is absolutely a key to

5 developing and implementing an enforcement

6 mechanism.

7 MR. RAWALD: Understood.

8 MEMBER PORTER: This is Steve

9 Porter from HARDI.

10 MR. RAWALD: Yes?

11 MEMBER PORTER: You know, we have

12 only got a couple of hours left in the day. 

13 Do you need that time to be ready for tomorrow

14 to answer that question, to get those people

15 rounded up in the building, I mean?

16 MR. RAWALD: It sounds like you

17 are trying to do me a favor.

18 (Laughter.)

19 I mean, I do have a wife and

20 child. You know, I have a son waiting at day

21 care for me at some point.

22 So, I am going to do what I need
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1 to get done. So, I really don't want to leave

2 here today until we decide what the scope of

3 this is going to be, right?

4 So, what I heard people saying is

5 you want to include within the scope an

6 understanding on where the Department is going

7 on certain issues and to at least be able to

8 say to the Department, "Hey, if we can't get

9 answers to these things, we can't go forward." 

10 So, that seems to be at least a threshold

11 question that needs to be resolved. So, I

12 need to talk to folks about that. That seems

13 to be an important thing.

14 What is helpful to me is for folks

15 to go back to their hotels or their offices

16 tonight and come back tomorrow with: here are

17 the five or six or ten or twenty or thirty

18 things I need to know before I can ever give

19 you an opinion on what would be effective

20 enforcement.

21 Now I think that there are some

22 thumbnail sketch things that we could do,
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1 regardless of the issue. I think that we can

2 lay out the definition of the parties. We

3 could talk about roles and responsibilities,

4 at least to some extent, without any idea

5 about what R22, how it affects it, or what

6 SEER 14 really is. I think we can do some

7 thumbnail things.

8 But those big issues, let's go

9 those out there and get those on the plate, so

10 I can push them on to people to work on while

11 we are talking about the other issues that we

12 can talk about without those answers. That is

13 what I am proposing, I guess.

14 I see a lot of blank looks. Does

15 everyone understand where I am coming from

16 here? Okay. Okay.

17 Well, Karen, please ask. Ask

18 away. I mean, tell me what your thoughts are

19 here.

20 MEMBER MEYERS: Well, I mean, you

21 can't develop an enforcement plan against an

22 efficiency rating unless you fully understand
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1 what the Department considers the efficiency

2 of the unit. So, I mean, the enforcement plan

3 is going to be different. So, we define how

4 you rate a product in one section, but,

5 apparently, it is not defined in another

6 section. And so, these things are

7 handicapping us.

8 MR. RAWALD: Uh-hum.

9 MEMBER MEYERS: I mean, I can't

10 come up with an enforcement plan on how to

11 enforce a 14 SEER in the South or I can't give

12 you any ideas on how to do that if I don't

13 understand what you consider to be a 14 SEER.

14 MR. RAWALD: Right.

15 MEMBER MEYERS: So, that is really

16 handicapping us. So, we always had this way

17 we thought we understood what it was, and it

18 is what we used to write our products, but

19 now, apparently, a lot of that is up in

20 question.

21 So, we need to understand the

22 Department's position on that, so that we can
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1 move forward. I mean, if we don't have

2 clarity on this, then we are going to go down

3 this path. And then, if this clarity or

4 guidance comes out that says it is something

5 completely different, then it could be a

6 horrible outcome for this industry.

7 MR. RAWALD: Uh-hum.

8 MEMBER MEYERS: And I don't think

9 the purpose is to shut down the air10 conditioning business in the United States,

11 which this could -- I mean, you think I'm

12 crazy, but we almost did that with the

13 commercial air-conditioning industry until we

14 got a lot of things clarified in the last

15 rule. So, it is that important. I don't know 

16 how to -- it is that critical to making this

17 a success.

18 MR. RAWALD: No, I'm getting that. 

19 I'm getting that from you folks, that this is

20 really important, and I agree that is

21 important.

22 And what I am telling you is I
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1 think that, while we can't game out the entire

2 scenario of how to effectively enforce these

3 without answering threshold questions, there

4 are at least some big-picture things that we

5 can discuss and solve while I am getting

6 answers to these other issues. I don't want

7 this to hold up what we are doing.

8 If you are telling me that we

9 cannot effectively negotiate until we have

10 clarity on these issues, I would counter that

11 and say that is pessimism. I think that we

12 can do some things while we are still working

13 on this. I am confident that we can.

14 Because I think that we can

15 discuss roles. We can discuss

16 responsibilities. We can discuss differing

17 aspects of this. We can even discuss, how

18 would you handle it if it was blower tested

19 versus tested with a furnace. All these

20 things we can discuss, at least in the

21 abstract, to the point of, then, getting more

22 guidance when we get it from the Department.
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1 So, I think there are some things

2 we can actually discuss here, and I don't want

3 to forestall everything while we are getting

4 an answer to the question that we don't have

5 at the moment.

6 MEMBER SACHS: This is Harvey.

7 Will you bring us that list?

8 MR. RAWALD: The list of what?

9 MEMBER SACHS: Things we can

10 discuss.

11 MR. RAWALD: I will, certainly. I

12 mean, and it is a list of three other things

13 I promised to do tonight. How about that?

14 MR. EISNER: What if the answer

15 you get back is "We will give you these

16 answers, but it will take us about six

17 weeks."?

18 MR. RAWALD: Right.

19 MR. EISNER: That's impossible --

20 MR. RAWALD: Right.

21 MR. EISNER: -- for this group to,

22 then, implement by the deadline they have.
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1 MR. RAWALD: Right.

2 MR. EISNER: And six weeks isn't

3 that long.

4 MR. RAWALD: Right. I think the

5 Department understands that. And I think they

6 understand the position on that right now

7 because of the fact that we don't have an

8 answer for you today.

9 MEMBER PORTER: Would you like to

10 work on 2020 now, then, and just forget

11 everything until then?

12 (Laughter.)

13 MR. RAWALD: I do like you.

14 (Laughter.)

15 There is no reason for Jon Melchi

16 to be here, alternate. Can you please keep on

17 coming?

18 (Laughter.)

19 So, we have, along with the scope

20 ideas -- and anything else in scope that we

21 could throw in here? You know, besides the

22 kitchen sink, is there anything else?
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1 MR. McCRUDDEN: This is Charlie

2 with ACCA.

3 You do actually regulate kitchen

4 sinks, don't you?

5 (Laughter.)

6 MR. RAWALD: Not the basin, but

7 the faucet.

8 MR. McCRUDDEN: But the faucet,

9 exactly.

10 MR. RAWALD: Yes.

11 MR. McCRUDDEN: One question I had

12 is -- sorry, I'm trying to find it --

13 MR. RAWALD: You come prepared.

14 MR. McCRUDDEN: I've got three

15 pages here.

16 Who will be the enforcing agent?

17 MR. RAWALD: So, do you want that

18 to be part of the scope, who will be the

19 enforcing agent?

20 MR. McCRUDDEN: I think so.

21 MR. RAWALD: I think that is a

22 good question. Yes, let's put that in there. 
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1 Okay. Who and how? And as we discussed, what

2 tools would that enforcing agent have at their

3 disposal? I think those are all valid things

4 that should be within the scope.

5 Anything else?

6 MEMBER SHEPHERD: This is Amy

7 Shepherd from AHRI.

8 I think that one thing that

9 dovetails with that is there are specific

10 provisions in this regional section about

11 state enforcement. And so, I think that is a

12 question that we need to look at in terms of

13 what exactly that means, and is that something

14 separate than the civil cases or the things

15 that can be brought with notice to the

16 Department? Or how is that going to correlate

17 and relate to the Department's enforcement

18 plan?

19 MR. RAWALD: Sure. I mean, if you

20 folks look at the comments, when we send you

21 that link to the docket tonight, one of the

22 comments is from an organization that is
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1 really pushing for the building codes to play

2 a role in this. And I think that should be

3 part of the scope, too. How can we take

4 advantage of the various building codes or

5 licensing, and those kinds of things out

6 there? And is there anything from a federal

7 level we can do to take advantage of that as

8 well? And I would like to hear from folks

9 about that.

10 MEMBER SHEPHERD: But I am

11 specifically talking about the provisions that

12 let states put the regional standards in them. 

13 Okay.

14 MR. RAWALD: Right. I understand

15 what you are saying.

16 MEMBER GIBBONS: This is John from

17 Carrier.

18 The penalties, is that something

19 that should be continued or added to the

20 scope?

21 MR. RAWALD: Right. So, I think

22 Amy and I discussed consequences before. I
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1 look at sort of penalties to be part of the

2 consequences, but definitely. I definitely

3 think that is an important thing.

4 I saw an article today. I don't

5 know if a lot of you are familiar with Tony

6 Stewart running over this young gentleman on

7 the racetrack. But they are talking about

8 changing the rules in NASCAR racing. And the

9 folks from NASCAR said, "I don't know of any

10 law or rule that will be followed without an

11 enforcement." So, I think that is selling a

12 point for us, right? So, we have to have

13 something out there to hold over those heads,

14 it seems like, in order to have a rule.

15 So, okay, anything else in the

16 scope category?

17 MEMBER DORIA: Jordan Doria with

18 Ingersoll Rand.

19 I think, I mean, most of the

20 elements are up there, but maybe just sort of

21 a summary of what the settlement included

22 again, some of the elements that are out
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1 there. I am specifically thinking about,

2 what, if anything, the Department sort of

3 stipulated or expressed a sentiment about with

4 regard to the role of different parties?

5 MR. RAWALD: So, you want me, as a

6 part of just in my discussion to you, to

7 relate to you what was settled, too? Because

8 that wouldn't really be a scope. Like we

9 wouldn't agree to what was settled to in the

10 furnace settlement. Is that what you are

11 talking about or --

12 MEMBER DORIA: Yes. Correct.

13 MR. RAWALD: Right. So, I can

14 talk to you about that.

15 MEMBER DORIA: Yes.

16 MR. RAWALD: Or I can have someone

17 come in and talk about it who is more

18 knowledgeable.

19 But, as far as we wouldn't be

20 negotiating that, that wouldn't be part of the

21 scope, but it would be part of my educational

22 piece here tomorrow. That's fine.
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1 MEMBER DORIA: Thank you.

2 MR. RAWALD: Uh-hum.

3 MR. EISNER: Are there any other

4 things you would want to hear about tomorrow

5 in terms of what you would be looking at? We

6 talked about, I think, FOIA requirements

7 earlier. Are there any other general legal

8 requirements? Any other DOE requirements you

9 would like to have covered?

10 MEMBER NOLL: Well, one thing that

11 I have been thinking about -- and I guess this

12 is more along the lines of just throwing

13 things on the table and saying what might

14 potentially work -- but like, legally, what is

15 the relevance or opportunity with respect to

16 warranties? Is there anything that can be

17 done there? Although, legally, what can the

18 Department do, require manufacturers to do or

19 not do specifically? Like shipping to certain

20 areas, is that on the table or is that

21 something that legally they can't require

22 manufacturers to do?
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1 So, some of those kinds of -- like

2 what are the bounds with respect to what you

3 guys can require or not require certain

4 entities to do? Maybe that falls under

5 responsible parties; I don't know.

6 MR. RAWALD: Okay.

7 MEMBER MEYERS: Another thing that

8 I think we should talk about during this

9 process is how do internet sales apply. I

10 mean, maybe it will just become inherent in

11 how we do that, but that is not necessarily a

12 geographic boundary as far as the sales

13 function is concerned. So, I think it is

14 something that needs to be considered as we

15 are going through the discussion.

16 MR. EISNER: Is that something

17 that affects FTC?

18 MR. RAWALD: Well, I think Karen's

19 question goes to who is responsible for

20 internet sales? Like what would be the

21 enforcement mechanism for sales over the

22 internet as opposed to a contractor that walks
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1 in your house and sells a unit?

2 And I think that has evolved a lot

3 from when we started to what is going on

4 today. And I don't have a sense of it, and I

5 would like to hear from industry about how

6 prevalent that is and what market share that

7 is. And are they properly represented here or

8 should we have something else come on to this

9 forum and talk about that? I mean, I don't

10 know if they are appropriately represented or

11 not. So, yes, I think it is within scope,

12 certainly.

13 MEMBER SACHS: Doug, I was

14 intrigued when you followed up the who will

15 enforce.

16 This is Harvey.

17 MR. RAWALD: Uh-hum.

18 MEMBER SACHS: Who will enforce

19 with what tools?

20 MR. RAWALD: Uh-hum.

21 MEMBER SACHS: Again, it evoked a

22 resonance from last year. This will, I think,
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1 lead us into discussion of data availability

2 and database construction and access as being

3 probably a necessary tool for any kind of

4 enforcement.

5 MR. RAWALD: So, I think that will

6 be debatable. I think that people have

7 different views on that. But I think that is

8 a debate we should have. I think it is part

9 of the scope of this, as to what tools we will

10 bring into play.

11 I know that you pushed or had an

12 idea about a large database collection in 2011

13 in the public meeting. And so, I would like

14 to hear about that, if that is still something

15 you think about.

16 And there are other folks who had

17 different reactions to that. So, I think that

18 is within scope, though. That is definitely

19 right there, is what tools could we be

20 applying in order to properly enforce this.

21 MR. EISNER: Are you talking about

22 DOE databases? Or are you talking about
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1 industry databases, whether manufacturer or

2 installer or in between?

3 MEMBER SACHS: This is Harvey

4 responding to Neil. And I am going to remain

5 agnostic on that question.

6 (Laughter.)

7 I think that whoever is doing the

8 enforcement needs, at minimum, to understand

9 the performance of the evaporator, the

10 performance of the condensing unit, and what

11 kind of motor is in the fan. And without

12 that, it is hard for me to conceive of how I

13 can judge minimum compliance, although I can

14 probably say, "Yes, this thing is way beyond

15 minimum." Okay? I mean, just looking at it,

16 I could probably come close to that.

17 So, I want to be agnostic.

18 MR. EISNER: Do you need any

19 briefings from anybody other than DOE to

20 gather the information you need to become un21 agnostic?

22 MR. RAWALD: Frankly -- this is
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1 Doug Rawald -- it sounds to me like that is

2 something that the industry, and when we talk

3 about things, we can all kind of opine about

4 what we are capable of. And that might help

5 Harvey shape his analysis. I think so.

6 MEMBER SACHS: Yes. No, I --

7 MR. RAWALD: It is something our

8 discussions will --

9 MEMBER SACHS: I think this is

10 something that will flow naturally --

11 MR. RAWALD: Yes.

12 MEMBER SACHS: -- at the right

13 point in the -- I don't think this is a priori

14 as much as these quasi-religious definitions

15 of what the pieces are of a compliant unit.

16 MEMBER PORTER: Steve Porter from

17 HARDI.

18 The FTC, did you say they are

19 going to attend or they are not going to

20 attend?

21 MR. RAWALD: So, when I talked to

22 Hampton Newsome from the FTC, he said he can't
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1 come today or tomorrow, but that future

2 meetings he would like to come to and sit in

3 on. And as a member of the public, he may

4 offer an opinion. He won't be sitting at the

5 table because he is not a member of the group. 

6 But we can possibly poll him and certainly

7 what they are doing will affect what we are

8 doing.

9 MEMBER PORTER: I guess I need a

10 little better understanding, too, how they

11 interplay.

12 MR. RAWALD: Okay.

13 MEMBER PORTER: You know, just how

14 they can affect the labeling and even our

15 decision here, whether it gets all trumped

16 later down the line or --

17 MR. RAWALD: Right. So, let's be

18 clear. As I said before in response to

19 Jordan's question, we can't the FTC to do any

20 sort of rulemaking. What Hampton has told to

21 me is that they came up with a labeling final

22 rule. So, they have a rule in place for the
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1 label, in recognition of the rules we put into

2 place, the regional standards, and with an

3 idea they will work in a certain way.

4 And if our enforcement scheme

5 comes out to where those labels are not going

6 to help, that they will listen to what that

7 is, and at least listen to ideas to change the

8 label to work with the enforcement scheme that

9 we had developed.

10 But we may want to hear from him

11 about that. What might be easiest, though, is

12 for folks to go back and to look at the label

13 and to read the rule regarding the label. And

14 we can, of course, make that available. I can

15 have that sent around by Jeremiah. As I said,

16 I could pass out copies of labels for folks to

17 have and bring back, I think, about here's

18 what the label is and how does that play.

19 Because we know the label is

20 decided. So, either we can go with what we

21 know, which is the label as is, and then, use

22 that to help inform our own enforcement
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1 process. Or we could say, well, what is the

2 development and enforcement process, and then,

3 hope FTC will change our label to meet our

4 needs, which they may or may not.

5 MEMBER PORTER: Okay.

6 MR. RAWALD: So, I think it is

7 more practical to do the former.

8 MEMBER PORTER: And then,

9 secondly, so we can bring more material back

10 from this evening and add to this list,

11 correct? And then, you would like some

12 prioritization to the list as well, so we can

13 kind of lock down what we can do first,

14 second, third, fourth, fifth?

15 MR. RAWALD: Right. Because, I

16 mean, for the group to be productive, we have

17 to say, okay, what we are going to address and

18 in what order.

19 MEMBER PORTER: Right.

20 MR. RAWALD: So, it would be

21 helpful if we left here tonight with at least

22 an idea of what we are going to talk about
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1 tomorrow.

2 MEMBER PORTER: Right. I think

3 No. 1 was like -- well, I won't speak for

4 everybody -- but No. 1 in my mind is the

5 covering of the updating again of the rules.

6 MR. RAWALD: Right. So, my giving

7 you an educational piece --

8 MEMBER PORTER: Right.

9 MR. RAWALD: -- on where we are

10 and where we have been.

11 And No. 2 seems to be dealing with

12 what "asks" do we need from DOE in order to be

13 able to really answer things, so DOE could be

14 working on those things.

15 MEMBER PORTER: Right. Right. 

16 MR. RAWALD: Okay.

17 MEMBER PORTER: And then, I think,

18 from that, everybody brings their list back,

19 and what follows thereafter that we plug in

20 for tomorrow and move forward.

21 MR. RAWALD: Okay. So, I hear you

22 saying that you think we are pretty much ready 
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1 to cut for the night.

2 MEMBER PORTER: No. No, I am not

3 saying that because I am sure Harvey has more

4 to say.

5 (Laughter.)

6 That is just kind of where I was

7 at, unless people have more.

8 MR. EISNER: Glenn?

9 MEMBER HOURAHAN: Glenn Hourahan.

10 You know, we talk about

11 enforcement. We are talking about enforcement

12 of a rule that has already been passed. And

13 so, we talk about what is the definition of

14 that passed rule and how it may apply to the

15 enforcement.

16 And as I look at these lists of

17 issues go up, and they are all good issues and

18 they all have an impact on enforcement, it

19 makes me very apprehensive about what the

20 resulting enforcement vehicle may look like or

21 mechanisms might look like.

22 Because what we need in the field
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1 is we need something that is implementable

2 from the contractor's perspective, from the

3 distributor's perspective, from the OEM's

4 perspective.

5 Also, we talked about, not

6 represented here, but we talked about having

7 code enforcement.

8 So, we are talking about we have

9 to have something that is very simple, very

10 easy to enforce in the field. And as I think

11 about that and I look at these complicating

12 issues up there, I am hoping, Doug, that

13 tomorrow -- I know you can't give us the exact

14 answer -- but perhaps you can outline or give

15 us some kind of a wedge, an indication of what

16 would DOE consider a successful level of

17 enforcement. You know, if X number of

18 installations were done right or done to the

19 law, and only Y skirted through, or something

20 like that.

21 Because I could see there is going

22 to be a lot of challenges as we move forward
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1 of rolling out something we have never had in

2 our industry before.

3 MR. RAWALD: Right. So, what you

4 are asking is a complicated question, but I

5 think the simple answer is, because I am the

6 Department of Energy and I have been charged

7 with EPCA, in order to enforce EPCA, it is

8 that I want 100 percent compliance with EPCA

9 because that is what I am legally required to

10 say I want.

11 From a practical point of view,

12 that answer may not be attainable. But I

13 don't think the Department would be prepared

14 to give an answer to that. And I can

15 certainly consult with folks and see if they

16 want to kind of give a ball-park on that.

17 But you can understand why we

18 wouldn't be willing to necessarily give a

19 less-than-100-percent answer.

20 MEMBER HOURAHAN: I am just

21 asking.

22 MR. RAWALD: I understand.
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1 (Laughter.)

2 MR. MELCHI: This is John Melchi

3 with HARDI.

4 Would it be appropriate to have a

5 discussion about what the Department is

6 capable of as far as communicating or public

7 outreach or a public affairs campaign

8 regarding the new standard?

9 MR. RAWALD: Right. So, from AHRI

10 and HARDI's comments to the original note, it

11 seems that public outreach is an important

12 part of the enforcement process. So, I think

13 that is on the table. So, I think developing

14 an enforcement or an enforcement outreach

15 public campaign, which means that we have in

16 the scope, so I think we should have that,

17 yes.

18 MEMBER FERNSTROM: So, this is

19 Gary.

20 You know, I am not sure what DOE

21 can and can't do. Doug is probably going to

22 tell us more about that tomorrow.
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1 But I have this vision of the

2 contractor selling the product to the

3 customer. Now the customer may be a

4 homebuilder. It may be new construction. It

5 might be retrofit.

6 The product that is being sold

7 might be a condensing unit only. It might be

8 a condensing unit and a third-party coil. It

9 might be a condensing unit and a factory coil. 

10 And there is some combination of these parts

11 that determines whether it meets the

12 regulation or not.

13 So, I am kind of envisioning this

14 table or framework that says, if this, then

15 this. Now how we are going to ascertain

16 whether every contractor does exactly that or

17 not is another matter. But understanding what

18 constitutes compliance ought not to be that

19 difficult if we make up a table that shows it.

20 MR. RAWALD: This is Doug.

21 So, I think what constitutes

22 compliance is the issue that Harvey seems to
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1 be asking about and that the Department is

2 answering separate to this. Because it layers

3 on more than just the regional standards

4 because we have national standards that it

5 applies to, too. How do you determine what 13

6 or 14 SEER is and in what context?

7 But, from the point of view of how

8 we ascertain what is installed or not, that is

9 really important to us. And so, monitoring

10 what is installed, that is all part of the

11 question to do that. So, what mechanisms do

12 we have to monitor what is installed? How do

13 we want to keep track of that? What records

14 do we want retained? Those all seem to be

15 part of the scope of what the tools will be

16 that we will want to be using. So, I

17 definitely think that is all fair game for

18 this group to talk about.

19 MR. EISNER: Any thoughts? Other

20 issues?

21 MEMBER NOLL: You can put on the

22 scope what records need to be kept.
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1 MR. EISNER: What records are

2 kept?

3 MEMBER NOLL: What Doug just said.

4 MEMBER FERNSTROM: This is Gary

5 again.

6 After I said it ought to be fairly

7 easy, the room got really quiet.

8 (Laughter.)

9 MEMBER SACHS: This is Harvey

10 again.

11 With reference to 100 percent

12 compliance and with reference to records, a

13 couple of years ago, when the furnaces issue

14 first got hot, if I could say that, AGA pulled

15 together a working group which did a fair

16 amount of thinking on some of these things. 

17 It was real-world applications in the context

18 of waivers. And I wonder if some of that

19 might be brought forward.

20 And Elizabeth is hiding. So,

21 maybe I will shut up.

22 MR. RAWALD: So, it sounds like
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1 you are suggesting some resources that might

2 be useful for us from that particular

3 discussion?

4 MEMBER SACHS: I am asking if

5 there are any gems in that that might be

6 useful.

7 MR. RAWALD: Yes.

8 MEMBER NOLL: So, for the public

9 record -- this is Elizabeth at NRDC -- I was

10 formerly with the American Gas Association,

11 and part of the conversations that we had

12 around the furnace framework for regional

13 enforcement and the documents that you are

14 talking about are all part of the public

15 record. So, part of the regional enforcement,

16 we can dig those out and circulate them, if

17 they are helpful.

18 MR. RAWALD: So, we will count it

19 with the list of resources that we have up

20 there. We have a lot of them, apparently, at

21 our fingertips.

22 So, is there anything else for
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1 scope? I mean, it is a pretty extensive list

2 already, and we all have homework to do,

3 obviously. So, it would be nice if we could

4 break and start working on our homework and

5 meet tomorrow and be a little more smarter

6 about things, if that works for folks. I know

7 you people traveled here, and I don't want to

8 people to leave early, but I think that would

9 be nice to work on some of these items.

10 MEMBER WHITE: This is Chuck

11 White.

12 The only other thing that really I

13 have heard mentioned is discussions of space

14 constraints with large equipment.

15 MR. RAWALD: Okay. Can you go

16 into that more, because I am not familiar with

17 that topic?

18 MEMBER WHITE: Well, it is higher

19 SEER equipment typically is physically larger. 

20 Coils get bigger. Outside units get bigger. 

21 And some people have commented that in certain

22 installations where you have multiple units,
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1 you don't have the clearance. And so, I don't

2 know exactly how it fits in here, but it does

3 kind of --

4 MR. RAWALD: What I am hearing you

5 say, Chuck, I think is, could we think about

6 some sort of waiver process akin to what was

7 for furnaces --

8 MEMBER WHITE: Yes. Yes.

9 MR. RAWALD: -- for those

10 installations where we are physically

11 incapable of trying to meet the SEER value.

12 MEMBER WHITE: Right, but you are

13 doing a very good job of putting those words

14 in my mouth.

15 MR. RAWALD: Is that what you are

16 suggesting?

17 MEMBER WHITE: Well, just

18 consideration --

19 MR. RAWALD: Okay.

20 MEMBER WHITE: -- a discussion of

21 it.

22 MR. RAWALD: I think that is
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1 within the scope. Certainly, we could talk

2 about the idea of a waiver for those kinds --

3 MEMBER WHITE: I don't know that I

4 am advocating that, but I know --

5 MR. RAWALD: Right.

6 MEMBER WHITE: -- it needs to be

7 talked about.

8 MR. RAWALD: And I don't think by

9 putting it up there we are saying that you

10 believe in it, either. But I think it is

11 something that is within the scope of this. 

12 Do we think there should be a waiver process

13 for un-enforcement of standards for people

14 that physically are incapable of installing

15 units that are otherwise required by law.

16 MEMBER WHITE: Yes.

17 This is Chuck White again.

18 There is just one more comment I

19 would like to make, and that is speaking for

20 contractors. And you put words in Glenn's

21 mouth here. But contractors really are kind

22 of simple. They want to do the right thing. 
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1 Tell us what to do. Tell us the rules to

2 follow, and we will do our best to follow

3 them.

4 And the definitions of what these

5 things are are important to us, so that we do

6 the right thing. Not every contractor; there

7 are people out there that are doing

8 substandard work and working out of the back

9 of their car, and, you know, all that kind of

10 stuff. But the bulk of the good contractors

11 out there want to do what is right. So, we

12 need to make it clear and easy and simple to

13 follow, and they will follow.

14 MR. EISNER: Anything else?

15 MEMBER ROCKY: Yes. This is Bryan

16 Rocky.

17 The engineer in me kind of got

18 into this for a second. So, we are talking

19 about split-system AC and packaged AC units. 

20 We all know that.

21 Two regions we are dealing with,

22 and we are talking about systems that are
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1 either going as replacement opportunities or

2 new home construction. That is one variable.

3 We are talking about units that

4 may have dry charge or factory charge. That

5 is a second variable.

6 We are talking about units that

7 are rated with loose coils or as part of a

8 system with an advanced indoor fan assembly. 

9 That is the third variable.

10 We are talking about whether or

11 not units may or may not have independent coil

12 manufacturer ratings or not. That is the

13 fourth variable.

14 We are talking about date of

15 manufacture versus date of installation. That

16 is the fifth variable.

17 What did I miss that we are trying

18 to combine on all this? Oh, yes, we have a

19 different rule for heat pumps, furnaces, and

20 AC, based on date of manufacture, date of

21 installation or inventory sell-through

22 periods.
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1 And we are going to make this

2 simple and easy to understand to the

3 contractor, who is the person who is doing the

4 selling and the installation for our

5 homeowners, which is all of us as well.

6 MEMBER HOURAHAN: And you want

7 that all on a label, so a homeowner could look

8 at it and, at a glance, tell whether or not

9 the contractor did the right job.

10 MEMBER WHITE: By October 30th,

11 please.

12 (Laughter.)

13 MEMBER ROCKY: So, it is complex.

14 MEMBER GIBBONS: Yes, and this is

15 John, Carrier.

16 It is kind of public awareness as

17 well. So, what they are talking about is how

18 is the public going to know about all this. 

19 And it is tough.

20 MR. RAWALD: Right. So, what I

21 hear you saying, Bryan, is, boy, we are taking

22 on a lot and we are going to make sure we have
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1 a lot of these meetings because there is a lot

2 to do in a very short period of time.

3 MEMBER ROCKY: Yes, I think as you

4 go through this, the importance of some of the

5 discussions on what or where the Department is

6 headed with some of these issues, like what is

7 a 14 SEER system, clarifies several of those

8 issues, right? And whether or not we need to

9 cover dry charge separately as a replacement

10 component versus a system helps clarify some

11 more of these questions.

12 And I am just trying to think of

13 the number of variables and what can we

14 eliminate with a little more knowledge. Or we

15 are going to have to assume all cases for

16 these different situations, right?

17 MR. RAWALD: No, Bryan, I do hear

18 you. Thank you for that good summary, though. 

19 It is very helpful. No, that was.

20 MR. EISNER: Other thoughts? 

21 Anybody want to get a refresher, go through

22 the list, or do you want to break for the day
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1 and go home and think about it?

2 MR. RAWALD: Yes, I mean, from my

3 point of view, I request that we break for the

4 day because I certainly have a lot of "asks"

5 from you guys to get started on. But I am not

6 averse to staying here if there is more people

7 want to hackle with, but I think it looks

8 pretty comprehensive at this point.

9 MEMBER PORTER: Will you be able

10 to email that list this evening?

11 MR. RAWALD: Right. Jeremiah can

12 email the list to you.

13 MEMBER PORTER: Okay. Thanks.

14 MR. RAWALD: Uh-hum.

15 MEMBER SHEPHERD: This is Amy

16 Shepherd from AHRI.

17 Just for a clarification for

18 tomorrow, if we start off with sort of this

19 educational session, do we have a general

20 framework? That is a long list. So, to think

21 about how we organize our thoughts or what we

22 are going to be discussing tomorrow, any
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1 particular order or topic or should we just --

2 MR. EISNER: Well, I mean, this is

3 the list. We could try to organize this list

4 or we could two or three things off and say

5 this is what we will discuss tomorrow after

6 Doug's briefing, whatever you think is the

7 best way to do it.

8 MR. RAWALD: Right. So, I guess

9 the second thing up on the order, it would

10 seem to me, after the educational piece was

11 the discussion of what things do we need to

12 know. Now Bryan provided a very good list. 

13 So, I think it is pretty comprehensive. So,

14 I hope that discussion will be short. But I

15 do want people to spend the nighttime thinking

16 about it, just to make sure that I have the

17 complete list of "asks," so I can make sure

18 that I am getting those things accomplished.

19 And after that, it is open to you

20 guys. So, what do you want? Where do you

21 want to move next, I guess is what Neil is

22 saying. So, if there is something else that
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1 you are ready to tackle next, knowing that we

2 don't have answers to those threshold

3 questions, I mean, can we talk about

4 definitions? Can we at least define who the

5 actors are in the community and what they are? 

6 Can we get to some of these answers about

7 different roles and responsibilities possibly

8 a little bit in that process?

9 MR. EISNER: What do you think

10 about starting with definitions? Okay. 

11 Unless somebody disagrees, definitions would

12 be No. 1 on the list.

13 Approximately how much time would

14 you estimate we would need for that? Are we

15 talking a brief amount of time, a lot of time? 

16 That is usually complex. We have got a lot of

17 terms.

18 MEMBER WHITE: Well, there may be

19 some that end up with blank spaces. But we

20 make the list.

21 MR. EISNER: What would be No. 2

22 on your list?
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1 MEMBER SACHS: This is Harvey.

2 And having put people on the spot

3 all day, I will continue. I would like to

4 pick up on Chuck's comments and see if perhaps

5 HARDI and PHCC and ACCA could sort of fill us

6 in on what do they think their ends of the

7 industry could do. What is the ideal tool

8 that a contractor would like to have to assure

9 that what he is putting in is legal? That

10 might be a helpful perspective for us, as we

11 are thinking about how close to that we can

12 come. Can you do it?

13 MR. RAWALD: It is Chuck's list, I

14 guess. Charlie is also standing up.

15 MR. McCRUDDEN: Well, I think,

16 like a lot of us, what tool would help us with

17 what is legal still hinges on what is legal. 

18 And I am not pushing back. I am just saying

19 that we are in the same conundrum.

20 MEMBER SACHS: Yes. Thanks,

21 Charlie. What I am trying to sort of ask is,

22 at the end of the day, what would help your
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1 members feel good about what they are doing in

2 terms of this compliance? What would be the

3 ideal that they would reach for?

4 MR. McCRUDDEN: Yes, I think I

5 will have to go back for comments to the

6 framework document, to those 11 --

7 MEMBER SACHS: Okay.

8 MR. McCRUDDEN: Because I don't

9 want to misrepresent what we said. But, you

10 know, certainly -- and this is going to sound

11 overly general -- but simple, effective, I

12 mean some protection for the contractor who is

13 abiding by the rules; something that punishes

14 the term I use is "bottom feeder," because I

15 can't say "unlicensed contractor" because

16 licensing is required everywhere. And I will

17 just say the contractor who takes advantage of

18 loopholes, or whatever.

19 MR. RAWALD: So, I guess what I am

20 hearing Harvey tee-up is for you to kind of

21 elaborate more on what would those things

22 be --
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1 MR. McCRUDDEN: Right.

2 MR. RAWALD: -- to help do that. 

3 And that would be a helpful discussion point

4 to at least begin with from that end of the

5 industry.

6 MR. McCRUDDEN: Yes.

7 MR. RAWALD: What would be the

8 thing that would help there? And if you could

9 discuss that tomorrow, great. If you need two

10 weeks to do it, then we can come back and do

11 it at the next meeting. But it would be nice

12 if you could talk about that tomorrow.

13 MEMBER WHITE: Yes, this is Chuck

14 White.

15 At one point I was thinking we are

16 asking you for some education on DOE, but I

17 think maybe around the table you guys need

18 some education about the life of a contractor.

19 MR. RAWALD: I think that would be

20 very helpful.

21 MEMBER WHITE: About how

22 businesses operate and the pressures we face,
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1 and what happens in the day-to-day business.

2 And again, if we all have the

3 rules and we all play by the same rules, it is

4 pretty easy. But there's a lot of people out

5 there that don't play by the rules.

6 And I think we can talk a little

7 about what the common understandings of the

8 rules are now. And it is not something I

9 think we want to get into tonight, but we can

10 spend a little bit of time tomorrow talking

11 about it.

12 MR. RAWALD: So, maybe what I see

13 you kind of coalescing is a little bit of an

14 idea of tomorrow being very educational in

15 scope. And maybe everyone can kind of lay out

16 where their interests lie and what the

17 relevant impacts are of an enforcement

18 framework, and kind of help us all see where

19 we stand.

20 So, then, we have two weeks to go

21 back and say, "Okay, well, now I understand

22 where Dave is coming from" or "I understand
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1 where Amy is coming from," and I can kind of

2 help bridge the gap here with some of my

3 thoughts on what would be the appropriate way

4 to enforce this now.

5 So, maybe that is the best way to

6 spend tomorrow, is for us all to kind of lay

7 out: here's where my interests are and here's

8 how we are affected by it and here's how we

9 operate and here's the pressures we face. And

10 here's the tools that will help me work better

11 or that would dis-incentivize me from

12 working or put me out of business, as Karen

13 pointed out before. So, what risks are we

14 facing?

15 MR. MELCHI: Doug, this is John

16 Melchi from HARDI.

17 I just think it is important,

18 though, to recognize that all of these

19 solutions may not come from the DOE. They may

20 come from the private sector, from

21 manufacturers' relationships with their

22 distributors, distributors' relationships with
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1 their contractors, and not necessarily

2 something that needs to be or should be

3 mandated from what is the output of this

4 group.

5 MR. RAWALD: Right. And I want to

6 be clear that an effective enforcement program

7 to Doug Rawald, sitting here today, does not

8 seem essentially to require it all be what

9 would be regulatory punishments. It is what

10 is going to work, based on what the industry

11 is saying they do together anyway.

12 MR. MELCHI: Yes, and I just want

13 to be clear that I think, as we move forward

14 in this -- and it is not something that I

15 think our industry has been through before --

16 that there is likely to be a lot of innovation

17 between different companies. Company X may

18 come out with this great marketing tool that

19 Company Y may not have right now. And they

20 may come out with something that is even

21 better. I think there is going to be

22 continued evolution in the education of the
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1 channel.

2 MR. RAWALD: Yes.

3 MR. EISNER: Sometimes when you

4 think about what we oftentimes refer to as

5 enforcement programs, you start thinking about

6 penalties. Sometimes it is better to think of

7 it from the positive way. What do we need to

8 comply? Rather than, what do we need to avoid

9 being penalized?

10 So, if you had the responsibility

11 of ensuring compliance with the statute, what

12 could you do? What resources do you have? 

13 Not think about it as an enforcement program.

14 MEMBER PORTER: Steve Porter from

15 HARDI.

16 I think I keep hearing simplicity. 

17 I think if we can't explain this to the

18 homeowner, it would be very difficult to

19 enforce.

20 MR. RAWALD: Well, maybe that is

21 something that we could discuss tomorrow, too,

22 is: what does a homeowner need to know? I
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1 mean, what do they need to know?

2 MEMBER HOURAHAN: A homeowner

3 needs to know whether they have a legally4 installed machine in their home.

5 MR. RAWALD: Right. But I meant

6 from a more detailed point of view. Like

7 let's elaborate. Let's figure out what

8 exactly do we need to make sure the homeowner

9 is aware up North for them to be informed and

10 make sure they are doing everything. So, I

11 think that is something to think about tonight

12 and talk about tomorrow.

13 MEMBER FERNSTROM: Well, this is

14 Gary.

15 I would just like to make an

16 observation because I had my furnace replaced

17 a couple of years ago. And even though I have

18 spent a whole career in this field, I didn't

19 know. And had it not been for my contractor

20 knowing what needed to be done, I would have

21 gotten the wrong thing.

22 What happened was the distributor
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1 shipped the wrong product to my house. And

2 the contractor noticed it; I didn't. And,

3 sure enough, it went back and another one came

4 and was installed.

5 So, I trust my contractor to know

6 what the requirements are. As a homeowner, I

7 am never going to know that.

8 MR. HURST: This is John Hurst

9 with Lennox.

10 I think back to Harvey's earlier

11 point. It may be helpful to facilitate the

12 discussion tomorrow by looking at a couple of

13 different scenarios.

14 One is if we had clarity around

15 all of these things, and one is if we take the

16 more ambiguous route.

17 Somebody was saying earlier -- I

18 think, Steve, it was you -- about, you know,

19 how does the homeowner know? I don't even

20 know if I can explain it to my product

21 management team or my engineers or my CEO

22 right now.
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1 So, I think if we can take a

2 scenario that says all these issues are

3 resolved -- and I know that may be rose4 colored glasses -- but also if they are not,

5 it leads me to two very different enforcement

6 scenarios. And that is what I think we are

7 all kind of getting hung up on.

8 MR. RAWALD: Well, Neil, it sounds

9 like we have a plan for tomorrow.

10 I'm sorry.

11 MEMBER LATTANZI: Well, I was

12 going to further comment. We have talked a

13 lot about tools.

14 This is Matt Lattanzi with

15 NORDYNE.

16 And one that came up was the

17 energy guide label. I think that is a good

18 one. But one that I didn't hear mentioned in

19 the room is the AHRI database. And I think

20 that is a tool that we can put out on the

21 table as an avenue for contractors,

22 distributors, manufacturers alike, to help us
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1 with the enforcement as well.

2 MR. RAWALD: And this is Doug

3 Rawald.

4 I guess, yes, from Chuck and

5 Glenn, I would like to hear from you what role

6 that plays in what a contractor does. You

7 know, how often they use that kind of

8 extensive -- how valuable a tool it is for

9 them. That would be helpful, I know.

10 MR. EISNER: Okay.

11 MEMBER HOURAHAN: That database,

12 that certificate the contractors print out is

13 actually very widely used and is very

14 important for a contractor to point to the

15 homeowner and say, "I'm giving you this

16 outdoor unit with this indoor coil with this

17 furnace, and here's my match number and here's

18 the efficiency, per the certificate." So,

19 that is a very effective and important tool.

20 MEMBER LATTANZI: One further

21 comment. In addition to the certificate, we

22 have now added the energy guide label to the
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1 database. So, you can go right into the

2 database and click on it and see that label. 

3 So, the combination of those two tools should

4 be very helpful.

5 MR. EISNER: A naive question

6 perhaps, but is any of this stuff automated? 

7 Can it be automated? So, for example, you

8 just take your label and run a smartphone over

9 it, reading a QR code, and tell you, based on

10 your location, this is accurate?

11 MEMBER BALLO: The FTC has

12 recently rejected a proposal to include QR

13 codes in labels.

14 But what I was going to bring up

15 is that my understanding from the recent FTC

16 proposal on labeling is that for this

17 equipment FTC intends to use DOE's

18 certification, Compliance Certification

19 Management System, to enable consumers to plug

20 in the model number of their equipment and,

21 then, use somehow in CCMS, to have it

22 displayed to them their annual operating cost
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1 and the capacity of their unit.

2 So, is there more we can be doing

3 with CCMS if the plan is to already sort of

4 direct traffic to that site?

5 MR. EISNER: Yes?

6 MR. MELCHI: I'm John Melchi.

7 I'm sorry, one last I guess point

8 or question. Harvey made a good "ask" to

9 industry about how to make this successful. 

10 I guess my question for the advocate community

11 is, what does a successful enforcement plan

12 look like for you guys?

13 MEMBER SACHS: I will try to

14 answer it.

15 MR. MELCHI: And for everybody

16 around the table.

17 Thank you.

18 MR. EISNER: Okay. Anything

19 further?

20 (No response.)

21 All right. It is 10 to 4:00. We

22 will let you out early today.
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1 MR. RAWALD: Just as a reminder,

2 tomorrow we are not in this building. So, we

3 are in 950 L'Enfant Plaza. So, that building

4 is by the L'Enfant Plaza Hotel. So, it is the

5 office of the program with which we work. And

6 so, you will be on the sixth floor there.

7 Jeremiah, we will still all be

8 meeting on the first floor there? Okay. So,

9 Brenda will be there and she will tell you

10 what room to go into and make sure that you

11 have your appropriate credentials to get into

12 that building.

13 It is a little closer to nice

14 lunch options. So, that is a plus. And it is

15 not quite as constraining as this office. But

16 we will be there tomorrow.

17 There will be a sign-in table.

18 It is 950, right? Yes, 9-5-0

19 L'Enfant Plaza.

20 (Whereupon, at 3:49 p.m., the

21 meeting adjourned for the day, to reconvene

22 the following day, Thursday, August 14, 2014.)
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125:13 127:1,2,8

127:10 129:9,20

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138:22 279:2,4

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blower 50:12

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blower-only 304:22

blown 309:13

blows 150:8

blunt 305:16

bluntly 318:7

board 131:1 214:21

250:5 279:8

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body 172:12

boil 313:8

boilers 193:2

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bookkeeping 65:16

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41:22 42:4 72:22

99:9,16 102:16

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160:14 198:11

237:19 260:15

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brief 70:8 361:15

briefed 25:2

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106:18 138:3,7,12

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Coast 262:2
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241:20 248:18

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290 4:6

293 4:8

294 4:9

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2a 100:18

2b 100:21

2nd 244:9 252:20

256:22 260:8

263:16,18 279:1

3

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3(a) 147:12

3)a 145:8,10 146:15

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3:00 269:18 282:5

3:49 375:20

30th 162:14,20

163:9 164:11

239:11 251:20

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315 4:10

32 3:5

335 4:12

338 4:13

341 3:22

35 52:4

352 4:7,14

359 4:15

38 3:3

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4 135:7 158:15,17

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4)b 217:15

4)d 135:18 136:15

138:9

4:00 374:21

400 45:22

43 3:6

45 73:1

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278:5 280:20

5

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271:4 273:17

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50 60:5 128:22

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6

6 3:3 211:8

6:00 242:15

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7

7-11-type 72:12

70 306:2

71 3:7

73 3:8

75 47:14 65:6

7th 276:7,8

8

80 60:7 306:3

800 60:4

8E-089 1:9

8th 247:14,14,18

248:2,4,15 254:1

265:21 266:4

276:8,14,15 277:1

277:3

9
NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

C E R T I F I C A T E

This is to certify that the foregoing transcript 

In the matter of: 

Before: 

Date: 

Place: 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

 

 ----------------------- Court Reporter 

419

Regional Standards Enforcement

Working Group Meeting

US DOE

08-13-14

Washington, DC