DRAFT 

U.S. DEPARTMENT OF ENERGY 

LIQUID-IMMERSED AND MEDIUM VOLTATE DRY-TYPE 

DISTRIBUTION TRANSFORMERS 

NEGOTIATED RULEMAKING WORKING GROUP 

GROUNDRULES 

1. Goal of the Liquid-Immersed and Medium Voltage Dry-Type Negotiated Rulemaking Working 

Group (“Committee”) 

The goal of the Committee is to reach consensus on a recommended set of energy efficiency 

standards for liquid-immersed and medium-voltage dry-type distribution transformers. 

2. Participants 

a. Interests Represented. Any interest that would be significantly affected by the rule may be 

represented in the negotiations. 

b. Parties to the Negotiations. The Committee consists of those individuals whom the Secretary 

appoints, as nominated by the affected interests. Each organization or interest caucus that is directly 

represented on the Committee shall be deemed a party to the negotiations. 

c. Committee Members. Each committee member appointed by the Secretary agrees to serve until 

the dissolution of the Committee unless that member becomes unable to serve, resigns, or ceases to 

maintain the representational requirements. 

d. Alternates for Committee Members. Each party to the negotiations may designate an alternate 

Committee Member. Alternates may substitute for Committee Members in the event the Member 

cannot attend a session of the Committee. 

e. Additional Interests. Additional organizational interests may join the Committee after 

negotiations have begun only with the concurrence of the Committee. 

f. Attendance and Participation at Meetings. 

 (1) Attendance. Each Committee Member agrees to make a good faith effort to attend every 

session of the Negotiating Committee. In addition, the Committee Member's alternate agrees to 

make a good faith effort to attend all Committee meetings and to represent the interest at any 

meeting that the Member is unable to attend. 

 
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(2) Participation. Only Committee Members or their alternates have the privilege of sitting at the 

negotiating table and of speaking from the floor during the negotiations without Committee 

approval, except: 

(a) any Committee Member may call upon another individual to elaborate on a relevant point, 

(b) Committee Counsel may raise and address appropriate points, and 

(c) any person attending the Committee meetings may address the Committee if time permits 

or file statements with the Committee. 

 

g. Constituents' Interests. Committee Members are expected to represent the concerns of their 

interest group to ensure that any agreement developed by the Committee is acceptable to the 

organization or caucus which the Committee Member represents. 

3. Decisionmaking 

a. Consensus. The Committee will operate by consensus which, for these purposes, means the 

unanimous concurrence of all parties to the negotiations. Concurrence will be assumed absent overt 

dissent. All agreements reached during the negotiations are tentative and may be made by the 

Members present at the meeting or their Alternates who attend a meeting in their stead until the 

Committee reaches an agreement that is binding on the parties. 

 b. Workgroups. 

 (1) Workgroups may be formed to address specific issues and to develop information for, 

advise, and make recommendations to the Committee. Although each party may designate a 

member of each workgroup, the membership of each workgroup should consist of no more than 

fifteen people. Other individuals who the Committee believes would enhance the functioning of 

a workgroup or representatives of interests that would be significantly affected by the topics 

addressed by the workgroup but which are not otherwise represented on the Negotiating 

Committee may also serve on that workgroup. Not all organizations or interest caucuses 

represented on the Negotiating Committee need to participate in each workgroup. 

 (2) The Department of Energy (DOE) will provide appropriate support for the Committee and 

the Workgroups, including a senior economist, senior technical staff, clerical support, and so 

forth. 

 (3) Workgroups are not authorized to make decisions for the Committee as a whole. 

Decisions to forward a report of a workgroup to the Negotiating Committee shall be made with 

the concurrence of all workgroup members who are present at the meeting where the decision is 

made. 

(4) Workgroup meetings will be held between the full sessions and will be scheduled in the 

same location and time whenever possible. All Committee Members will be notified of all 

workgroup meetings. 

 
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c. Discontinue if Unproductive. The Committee may discontinue negotiations at any time if they 

do not appear productive. 

d. Deadline for Negotiations. Negotiations will terminate by December 22, 2011 unless the 

Committee decides to extend the deadline. Every reasonable effort shall be made to conclude 

negotiations and report a consensus Term Sheet to the DOE by December 16, 2011. 

 

4. Agreement 

a. Term Sheet and supporting analysis. Any agreement reached by the Committee on 

recommended standards will take the form of a written statement that will be signed by all parties to 

the negotiations. It is anticipated that the agreement will include a written statement that includes (a) 

a Term Sheet outlining the significant terms of the Proposed Rule and (b) supporting analysis as 

needed to explain and justify the agreed terms from a legal, engineering and economic perspective. 

DOE staff will be responsible for translating this Term Sheet and analysis, into the language of a 

proposed rule, its supporting preamble, a Regulatory Impact Analysis, and all other appropriate 

materials necessary for the publication of a Notice of Proposed Rulemaking. 

 b. Statement as Basis for NOPR. DOE agrees to use the written statement as the basis for a 

Notice of Proposed Rulemaking to the maximum extent possible consistent with the Agency's legal 

obligations. 

 c. No Negative Comments. Each party agrees not to file negative comments on the proposed 

standard or its preamble to the extent they have the same substance and effect as theTerm Sheet. 

d. Response to Public Comments. DOE will consider all relevant comments submitted 

concerning the Notice of Proposed Rulemaking and will make such modifications in the proposed 

standard and its preamble as are necessary when issuing a final standard. 

 e. No Adverse Action and Support. Each party agrees not to take any action to inhibit the 

adoption of the recommended proposed standard as a final standard to the extent the final standard 

and its preamble have the same substance and effect as theTerm Sheet. If any person does anything 

to inhibit the adoption of a final standard that has the same substance and effect as the written 

statement, each party other than DOE agrees to submit comments to DOE and any other relevant 

Federal official stating that: 

 (1) the party concurred in the written statement, and 

 (2) it supports the adoption of a final standard with the same substance and effect as the 

written statement. 

f. No Challenge. Each party agrees not to challenge the standard in court to the extent that the final 

standard and its preamble have the same substance and effect as the Term Sheet. 

g. Memo of Concurrence in Docket. Each party other than DOE agrees to submit a memorandum 

to the docket that it participated in the negotiations and that it concurred in the recommended 

proposed standard when considered as a whole if: 

 
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 (1) adverse comments are filed with the agency or the standard is challenged in court and 

 (2) the preamble and standard have the same substance and effect as the Term Sheet. 

 

5. Facilitator 

 A neutral facilitator will work with all the parties to ensure that the process runs smoothly. The 

facilitator serves at the will of the Committee. 

 

6. Meetings 

a. FACA, NRA, and DOL Policy. The negotiations will be conducted under the Federal Advisory 

Committee Act (FACA), the Negotiated Rulemaking Act of 1990 (NRA), and the Department of 

Labor's Negotiated Rulemaking Policy. 

 

b. Open Meetings. Negotiating sessions will be announced in the Federal Register prior to the 

meeting and will be open to the public. 

c. Meeting Summaries. The proceedings will not be electronically recorded, but summaries of 

Committee meetings will be prepared by the facilitator for the convenience of the Committee. Such 

meeting summaries shall not be approved by the Committee and shall not be construed or taken to 

represent the official position of the Committee or any Member as to what transpired at Committee 

meetings. No photographs may be taken during meetings without the approval of the Committee.