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Neal R. Gross and Co., Inc.

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 U.S. DEPARTMENT OF ENERGY

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 CENTRAL AIR CONDITIONER REGIONAL STANDARDS

 ENFORCEMENT WORKING GROUP

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 PUBLIC MEETING

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 Thursday

 September 4, 2014

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 The Public Meeting met in Suite 8E089, 1000 Independence Avenue, S.W., Washington,

D.C., at 9:00 a.m., Neil Eisner, Meeting

Facilitator, presiding.

PRESENT:

NEIL EISNER, Meeting Facilitator

TIMOTHY BALLO, Earthjustice

KEITH DENNIS, National Rural Electric 

 Cooperative Association 

JORDAN DORIA, Ingersoll Rand

GARY FERNSTROM, California Investor Owned 

 Utilities 

JOHN GIBBONS, Carrier Corporation 

MATTHEW LATTANZI, NORDYNE Inc. 

CHARLES McCRUDDEN, Air Conditioning 

 Contractors of America 

KAREN MEYERS, Rheem Manufacturing Company

ELIZABETH NOLL, Natural Resources Defense 

 Council 

STEVE PORTER, Johnstone Supply

DOUG RAWALD, U.S. Department of Energy, 

 General Counsel

ANIRUDDH ROY, Goodman Manufacturing Company
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BRYAN ROCKY, Johnson Controls 

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 

DAVID WINNINGHAM, Allied Air Enterprises

ALSO PRESENT:

KARIM AMRANE, Air-Conditioning, Heating, and 

 Refrigeration Institute

ASHLEY ARMSTRONG, U.S. Department of Energy

LAURA DEGITZ, Navigant Consulting

JOHANNA HARIHARA, U.S. Department of Energy,

General Counsel 

DAVID HUNGERFORD, California Energy 

 Commission* 

JOHN HURST, Lennox International 

JON MELCHI, HARDI 

*via teleconference 
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 TABLE OF CONTENTS

Consequences

4. Adding Burdens to Contractors.. 4

5. DOE Consideration of Remedial

 Actions........................ 21

6. Assessing Civil Penalties...... 28

Labeling

1. Manufacturer's Proposal........ 44

2. Tear Off Labels................ 70

3. QR Code Labels................. 70

4. Label Packaging in Unit........ 72

Communication

1. Public Outreach................ 73

2. DOE Database: Contractors,

 Dealers, Distributors.......... 97

3. Training to Contractors/

 Distributors in Compliance with

 Regional Standards............. 107

4. Use of AHRI Database and 

 Certificates................... 133

DOE Collection of Information: 

Suspected Violations and Date

1. Whistleblower.................. 134

2. Tear off label................. 142

3. Records Retention.............. 142

Additional Topics

1. Upcoming October Meeting....... 159

2. Prohibited Acts................ 160
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1 P-R-O-C-E-E-D-I-N-G-S

2 (9:04 a.m.)

3 MR. EISNER: All right, let's get

4 started. We're under Consequences up to number

5 four, Adding Burdens to Contractors. I'm not

6 sure who suggested that or if somebody would like

7 to start it off.

8 Anybody want to say the pros for this

9 or the cons for this?

10 MR. WHITE: Well, this is Chuck White

11 and I guess I would just like to say for, again,

12 the bulk of the contractors, if we are aware, and

13 I know from my personal experience, if I am aware

14 that something we did was wrong, whether it was

15 undersized or wasn't what we said, we would make

16 it right. And I don't know what you would put in

17 to enforce that. If we are found to have done a

18 system that is not compliant, there are legal

19 ramifications and I have said before that the

20 building inspector has power over me but it is

21 not a huge concern because I can work with the

22 building inspector. He will tell me what is
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1 wrong. We will work together to fix the problem. 

2 But the homeowner has a greater power because if

3 I have done something in violation, I am going to

4 end up in court and litigation is expensive. It

5 is much less expensive for me, even if I put the

6 wrong unit in, to go take that unit out, put the

7 right unit it, than get involved in a protracted

8 legal battle.

9 But I guess I am interested in what

10 these quote unquote burdens or what these things

11 would be to fix noncompliant installations

12 because as far as I am aware, when we are made

13 aware of the situation, we work to try and fix

14 it.

15 MR. RAWALD: So this is Doug and I did

16 not pitch this idea so I am not speaking in

17 defense or for it. I am just trying to draw a

18 corollary.

19 We don't require this in the context

20 of if a manufacturer manufacturers and

21 distributes in U.S. commerce a noncompliant

22 product. We require the manufacturer to inform
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1 the consumer that they have a noncompliant

2 product but we don't require them to replace the

3 product or to make it compliant. So, we don't

4 require that level of performance.

5 Manufacturers sometimes do things on 

6 their own to fix the situation and, as I

7 mentioned in response to something Amy said

8 yesterday, we consider that in assessing the

9 scope of the penalty that we think would be

10 appropriate for the manufacturer, so the

11 manufacturer who goes out and spends a lot of

12 money to go out and replace all the refrigerators

13 that were wrongly distributed, we will consider

14 that in deciding in how much to charge the

15 company in a civil penalty.

16 So, I think what would be more

17 analogous to what DOE currently does would be to

18 require the contractor to notify the customer

19 that they received a product that is noncompliant

20 with the regional standard, without actually

21 requiring them to replace it. And that just

22 gives them information to the customer who then
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1 could decide if they wanted to sue the

2 contractor. That would be their own choice, not

3 anything DOE would be involved in or taking other

4 action they feel appropriate, Yelp or whatever

5 thing they think is appropriate to lambaste the

6 guy who gave them the wrong thing. Which Charlie

7 McCrudden is shaking his head but those devices

8 are awfully powerful to the new generation for

9 some reason.

10 So my point being that I think what

11 the Department would probably be more willing to

12 do if we are trying to stick with things that we

13 kind of already do and be capable of enforcing

14 would be a notice to the customer that you have

15 received a product you should not have received.

16 MS. NOLL: So, this is Elizabeth,

17 NRDC. I am not sure if I was the one that added

18 this. A question, I guess, and I kind of wish

19 that Charlie Harak was here to speak on the

20 consumer advocate's behalf because I think on

21 some level notifying the consumer that they have

22 a noncompliant product seems like definitely
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1 needs to be part of that. And I hear a lot of

2 well we would do everything we could to do the

3 right thing and make the consumer whole but don't

4 require us to do that, and us being whoever,

5 because there is situations we discussed

6 yesterday where it may have been the manufacturer

7 where the product was re-rated, and I guess on

8 what level do we want to ensure that if a

9 consumer gets sold the wrong product either from

10 a re-rating or from an improper installation that

11 they have means outside of just pursuing that on

12 their own to get the right product, if they were

13 unknowingly undercut or misinformed.

14 I guess, is there anything that we can

15 do to ensure that they are served properly? And

16 that is I guess where this, if the contractor is

17 required to go back and fix it, you know, that to

18 me seems like a strong requirement. On the other

19 hand, if the contractor goes out of business, is

20 it the Department's responsibility to fix that or

21 does it go up the chain?

22 MR. SACHS: This is Harvey. And from
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1 the wording that was up there, adding burden, my

2 sick mind immediately jumped to thinking about

3 the famous old book, the Scarlet Letter, labeling

4 Hester Prynne as a violator of societal norms.

5 I think we are talking about but not

6 using the word the rogue contractor. And what I

7 don't have a sense of is sort of the flow chart,

8 in particular in conjunction with the term

9 habitual violator. So, presumably -- routine. 

10 I'm sorry. Thank you very much.

11 Presumably, somehow or another

12 something triggers a single installation a

13 possibly being inappropriate. Perhaps it is the

14 label. Perhaps it is a subsequent contractor

15 coming in to fix the mess. That establishes that

16 we have -- presumptively it establishes that

17 there is a violation and somehow or other, we

18 need to have means to help the consumer get what

19 he thought he paid for. But how does that also

20 trigger the Department to be thinking about

21 whether this is a not habitual, a routine

22 violator. And how do we start putting the data
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1 together to understand if this is a systematic

2 problem or a one-off mistake?

3 MR. RAWALD: Right, Harvey. I think

4 your question is going back to the thing that

5 have been punting on four different days defining

6 what routine is. So, and I am still just open

7 for different ideas about how we discern or

8 define the routineness of someone's violation. 

9 So, that is kind of where I am. 

10 I think it is a different question

11 than the requirement someone fix an installation

12 because the question here that we are asking here

13 is any installation, whether it is a one-off or a

14 routine problem, do we want to have the

15 contractor have the obligation to go out and

16 remediate it, primarily, it would seemingly be by

17 replacing the noncompliant unit with a compliant

18 unit, which I am sure it would be a great expense

19 both in time and in actual paying for the

20 returning of the unit and the new unit that you

21 would be putting in.

22 So, and I haven't heard a whole lot
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1 from anybody except for Chuck and Elizabeth on

2 the point and then I issued the idea of hey

3 listen, we can at least think about a notice

4 provision, whether or not there is a requirement

5 of performance on the issue.

6 So, I guess are there any more

7 thoughts on that particular idea?

8 MR. SACHS: Then I do have some

9 follow-up. This is Harvey.

10 Given Chuck's assurance that a

11 reputable manufacturer -- I'm sorry -- reputable

12 contractor having made a mistake will remedy it,

13 then I certainly would want that requirement. 

14 And if a contractor wants to dodge that, that is

15 circumstantial evidence that he is probably not

16 playing the game right. And that could lead to

17 sort of an operational trigger that someone who

18 starts playing funny when an irregular

19 installation is discovered is somebody's whose

20 pattern ought to be looked at by requesting his

21 records.

22 Again, we are trying to get an
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1 efficient reactive process. And this is what I

2 am thinking is a way that gets you to very

3 targeted look sees, rather than throwing a

4 blanket over the whole contracting industry.

5 MR. EISNER: John.

6 MR. HURST: John Hurst with Lennox. 

7 The idea that a contractor would have to make

8 good certainly has more teeth and it is a

9 financial incentive for the contractor to do the

10 right thing the first time. 

11 The only caveat I would say to that is

12 we would have to be careful about the consumer. 

13 You know we have used the example of the internet

14 retailer, where the unit is shipped to the

15 driveway. The homeowner or the consumer is in

16 collusion with whoever installs the rogue piece

17 of equipment.

18 I could envision a scenario where that

19 consumer gets amnesia and then wants some

20 recourse. Now, it is a very small percentage but

21 having worked in retail, there is an element of

22 the population. It is a very small element but
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1 there are consumers that will game the system as

2 well. So, we would have to construct something

3 to avoid that situation.

4 But I am not necessarily opposed to

5 the idea. I would kind of like to hear from

6 Charlie and what he is thinking about that type

7 of circumstance.

8 MR. McCRUDDEN: So, this is Charlie

9 with ACCA. One of the things I sort of thought

10 about was the impact on the consumer in this

11 case. You know the consumer has to be home for

12 this remediation to occur.

13 And so there is, in some ways, a

14 burden on the consumer. You know they don't --

15 it would be great if all the equipment was

16 outside and the contractor never had to enter the

17 home but, in this case, that has to occur. And

18 so does that require someone to stay home,

19 someone to miss work, or other obligations that

20 they may have. And this comes up in other, I

21 think there are utility programs that require

22 quality assurance checks. And when you add that
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1 extra step in the whole process, we hear

2 grumblings sometimes from the consumers who say

3 something along the lines of wait, do you mean I

4 have got to stay home another day for this?

5 So, there is that impact. If that is

6 required, then we are adding that into this

7 program. I think the notification requirement

8 might satisfy that. And I think that would

9 trigger likely the contractor, anyway, to figure

10 out how to make this work, make this whole. Yes.

11 MR. RAWALD: So, this is Doug. I

12 guess I am not really buying into the concern

13 that a consumer's inconvenience is a reason why

14 we shouldn't require this. Because, frankly,

15 they have been inconvenienced by getting the

16 wrong product they didn't want in the first

17 place. I mean they are going to have to pay more

18 money in electrical bills because the SEER value

19 is going to be lower. So, that is not going to

20 have a whole lot of weight with who I work for.

21 But I do think there is at least a

22 question of how I can enforce somebody failing to
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1 perform this. And so I have to go back and talk

2 to the lawyers about the extent of our authority

3 because we just don't do this right now. There

4 is no corollary to us doing this. And so I have

5 to go back and talk with folks about the comfort

6 level of our authority to require performance.

7 So, what I can say to you in all

8 clarity is I know that we do notifications. So,

9 notification at least is a baseline to consider

10 but I may not be able to get folks online with

11 the idea of requiring performance because of

12 issues that I haven't thought about yet. But I

13 want to mark that for them to talk about.

14 MR. SACHS: Charlie, this is Harvey

15 with a follow-up. My experience has been that --

16 we are really only regulating the condensing

17 unit. And I don't know if installations that

18 don't have a power shutoff outside at the

19 condensing unit and in which I can't do all of

20 the operations required to change out the

21 condensing unit, pump down an evacuation and

22 everything else, without having to go into the
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1 house. I am not having to touch the coil.

2 So, I am not sure. I appreciate the

3 concern with the consumer and I know Charlie

4 Harak would if he were here, but I am not sure

5 how frequent that case is.

6 MR. WHITE: This is Chuck White.

7 MR. RAWALD: Well, let me just jump in

8 real quick because I want to make clear that our

9 regulations are of both the outdoor and indoor

10 unit. I mean it is a split system. While the

11 condensing unit is the large part of it, we do

12 have requirements for performance of the

13 combination, not just of the outdoor unit.

14 So, I get the point but I just want to

15 make that clear from the Department's point of

16 view.

17 MR. SACHS: I understand that. And

18 perhaps I am wrong, Doug, and need to be

19 corrected. But my sense is that operationally,

20 the only violation I could pick up in this case

21 was an incorrect condensing unit. That is one

22 which has a label on it saying it is --
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1 MR. WHITE: This is Chuck White. So,

2 I am installing a system. The system is rated. 

3 So, in Charlie's example, we have a third party

4 coming to verify the condition to get you a

5 rebate or verify compliance. They have to see

6 the inside coil because it is a matched system. 

7 We are not just talking about an outdoor

8 condenser change out. If I am replacing a

9 system, they are going to have to have access to

10 the inside and possibly, the thermostat. There

11 will be an electrical disconnect, or at least

12 there should be, but people will need that access

13 to be able to verify some of that indoor stuff. 

14 And kind of throwing back to my

15 original comments, the caveat I have is in the

16 case where it is our fault, and if I have a piece

17 of equipment that was mis-rated and that comes

18 down the pike, the contractor was operating in

19 good faith, I am still going to try to do what we

20 need to do to make it right but it is going to be

21 more of a discussion as to who is paying for

22 that.
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1 MR. PORTER: This is Steve Porter,

2 Johnstone Supply. I mean currently right now the

3 process on a bad installation, which is whether

4 it is the wrong size unit, whether it goes DOA,

5 you know dead on arrival, or all those things

6 that exist today that a contractor has to deal

7 with all the time anyway and the homeowner has to

8 deal with. I mean, it is not like installations

9 are done perfectly every day. They happen not

10 that often but there is a percentage of them that

11 do and they are already remedied through Better

12 Business Bureau, working with the contractor. 

13 You know it gets worked out every day. So, it

14 seems kind of redundant to me to put something

15 over this. Once they get notified that hey, you

16 put the wrong unit in is no different than hey,

17 this thing doesn't work.

18 MS. SHEPHERD: This is Amy Shepherd. 

19 Actually, I think it is a little different but I

20 think that it is just important for us to keep

21 this in mind. I mean this is not necessarily a

22 situation where a consumer didn't get what they
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1 paid for. This could be what they wanted. And

2 so there is not necessarily sort of a

3 misrepresentation of the consumer getting

4 defrauded in terms of I thought I was going to go

5 14 but I got a 13. They may have known that they

6 were getting the 13, they didn't know about the

7 requirement but they got exactly what they paid

8 for.

9 So, if you go back and you make the

10 contractor install the 14, I think you do have to

11 address the question of who is going to pay for

12 that because it could very well be that the

13 consumer doesn't want to pay for that. And then

14 I think you would have to ask whether 

15 the Department has the authority to

16 force the contractor to pay for that, in terms of

17 whether they have that sort of penalty authority.

18 So, I just think it is important that

19 we keep in mind probably what I think is the most

20 likely nature of how this is going to happen. 

21 And then in terms of the truly bad actor, the

22 person, the contractor who knew this was a
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1 violation and did it anyway, I really question

2 whether or not they are still going to be around

3 or there is going to be a mechanism to get that

4 particular person to go back and install the

5 other unit. I think they are much more likely to

6 just disappear.

7 MR. RAWALD: Yes, this is Doug and I

8 heard obviously a good point. And I agree that

9 is a point that I think is well taken. So, that

10 is one thing we before did not include that.

11 Can we agree that as a baseline

12 premise that notification by the contractor to

13 the customer is a good idea? Is that something

14 that we could all agree to, that that is

15 something that we would sign up for? I see a lot

16 of nodding of heads. But is there anyone who is

17 dissenting from the idea of that, would be

18 opposed to saying hey, contractor, you should be

19 required to notify your customer that you

20 installed a noncompliant product, if we

21 discovered it?

22 Chuck, Charlie?
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1 MR. WHITE: This is Chuck White. I

2 think the good guys are going to do that. But I

3 guess I would like to consult a little with some

4 of my people. But my own personal opinion, I

5 don't see it is an issue but we have got to think

6 about it a little bit.

7 MR. McCRUDDEN: And I will think about

8 it with Chuck. This is Charlie.

9 MR. RAWALD: This is Doug. So, I will

10 go back and talk to the people in the Department

11 about our sense of whether we could actually

12 require this level of specific performance to do

13 something that we don't do currently. But I will

14 also consider at least the open the possibility

15 pending further discussion from the contractors

16 of requiring a notification at least consistent

17 with how we do things with manufacturers now who

18 manufacturer noncompliant products.

19 MR. EISNER: All right, let's go on to

20 the next issue, DOE Consideration of Remedial

21 Actions.

22 MR. RAWALD: And this is Doug and so
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1 I have mentioned this a couple of times, as a

2 matter of fact, probably in the last half an

3 hour, that we do, as a policy matter, consider

4 these. I don't think there is anything that

5 needs to be regulated regarding this. I mean we

6 have a policy statement that makes it pretty

7 clear that we consider remedial actions taken by

8 the person who we are enforcing against, for

9 purposes of deciding what the scope of the

10 penalty should be they face. So, it is a

11 standard course of business for us. I don't see

12 that ever changing. It is pretty standard across

13 all government agencies. And I think Neil could

14 speak to that as well in his administrative law

15 experience that that is what you do in looking at

16 civil penalties.

17 And so I don't think there is a need

18 for us to go much further than that. I could

19 just assure you that we do it and we will keep

20 doing it.

21 MR. EISNER: Is there anyone who would

22 want to argue that it should be required, rather
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1 than just in a policy statement?

2 MR. DORIA: This is Jordan with

3 Ingersoll Rand. I wouldn't argue that. I just

4 wanted to maybe ask a question. And maybe this

5 is not the right place for this.

6 But I have been thinking about this

7 issue of remedial actions more in the context of

8 the line between a violator and routine violator

9 and whether or not remedial actions could play

10 into some sort of line of demarcation between

11 someone who is a violator and has violated but

12 maybe by taking remedial actions, they avoid

13 being labeled by the Department as a routine

14 violator.

15 Just as one example, if there were

16 maybe a slightly larger contractor or contracting

17 company really that had multiple employees and

18 one particular employee was continually doing

19 something, that employee was, upon discovery of

20 the data, installed maybe 20 units that were

21 noncompliant. That individual was let go by that

22 company. Would that company, then, still have to
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1 endure routine violator status.

2 I understand we haven't gotten to the

3 point of what constitutes routine or not but in

4 my view the basic point is I think remedial

5 actions should be considered when we get to the

6 point of saying who is a violator and who is a

7 routine violator.

8 MR. RAWALD: And this is Doug. 

9 Jordan, I am totally up to that idea. I think

10 that is a good point especially because we have

11 talked a lot about how someone gets off the list

12 once they get on the list, that kind of thing,

13 just as an idea. So, I think if we were taking a

14 factorized approach, which Neil has put out there

15 as a possible way to go for discussing the

16 routine subsequent remedial action would be a

17 factor to consider in deciding whether someone is

18 a routine violator or not or whether they should

19 remain a routine violator because of things they

20 did afterwards. So, I am open to that.

21 MR. WHITE: This is Chuck White. I

22 think that is a really good concept because I
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1 think we all agree the biggest exposure at issue

2 here is going to be in these border locations and

3 I can see a big outfit, a busy morning, the wrong

4 thing gets put in the wrong truck. But if you

5 are made aware of it and you go take care of the

6 issue, I think that goes a long way to attesting

7 that you didn't really knowingly do this, that it

8 is just an accident that happened.

9 And really these border places where

10 people work on both sides, the example we had of

11 the line goes right through the middle of a city,

12 I think we have a much higher probability of

13 things happening there. And this allows a

14 contractor in that market to work its way out of

15 his mess.

16 MR. EISNER: Harvey?

17 MR. SACHS: Along those lines, Chuck,

18 the additional complication that I have run into

19 a couple of times in my own life is the

20 distributor doesn't have exactly the right unit

21 in stock. It is an emergency replacement. In

22 that border situation, the distributor might be
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1 able to offer I can sell you a 13 condensing unit

2 or I can sell you an oversized 14, which do you

3 want.

4 So, there are additional complications

5 and you have made me a little bit more sensitive

6 to ambiguity that is inherent in the decision

7 process. But I still feel we need to have ways

8 to figure out who is that habitual guy, the guy

9 who has to -- I have experience with a guy who

10 has had to put in the wrong unit in an emergency,

11 replacing it later. But that is a big burden on

12 a contractor.

13 So, I am not quite sure what to do but

14 it certainly has helped me think through this.

15 MR. McCRUDDEN: This is Charlie with

16 ACCA. Is it possible to get a copy of the policy

17 statement that you have on this?

18 MR. RAWALD: Right. Coincidentally,

19 I emailed it to Amy yesterday and I could email

20 it to the group at large today. So, I will go

21 ahead and do that.

22 MR. EISNER: Okay, any other comments
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1 on remedial actions? So, is the consensus right

2 now that we leave it as it is as part of a policy

3 or do you want to learn more after you look at

4 the policy?

5 MR. SACHS: This is Harvey again. And

6 I think we have got as far as we can. But I do

7 want to reiterate that this question of the

8 habitual -- differentiating the habitual violator

9 from the emergency replacement, the accident,

10 things like that. Particularly in the border

11 areas, it is going to be a task because raising

12 awareness of consequences is going to be an

13 important part of avoiding the need to do

14 enforcement.

15 MR. RAWALD: And this is Doug. I hear

16 that Harvey. I think what is the most likely

17 scenario that is going to take place with someone

18 that does a one-off is that we are going to ask

19 to look at their records to just take a quick

20 audit and make sure it is a one-off. That is

21 probably what is going to happen. I mean

22 thinking now having never done this particular
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1 scenario but thinking about how we are going to

2 do it, that is what I would see the way it would

3 most likely play out. Is the guy would say I did

4 it. It was a one-time thing. I would say let me

5 look at your records. Okay, well, from your

6 records everything looks fine. Maybe we will

7 keep an eye on that person some other way over

8 time but I think that is probably what would

9 happen and we would not, of course, say they are

10 a routine violator because of a one-time mistake.

11 MR. EISNER: All right, let's go on to

12 the last item on the list, Assessing Civil

13 Penalties.

14 MR. RAWALD: So, the Department

15 already has in place a regulation based upon the

16 statute regarding civil penalties. There is a

17 $200 maximum. The way the regulation currently

18 is, there are violations that are a per unit

19 violation and there are some violations that are

20 a per day violation. So, I think it all depends

21 on what the prohibited acts are.

22 So, we only assess civil penalties for
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1 defined prohibited acts. So, you folks yesterday

2 thought of some ideas for prohibited acts that we

3 are going to percolate on here. But so the

4 question would be that is what we will do for

5 that and then what the Department does is we look

6 at the maximum, which would be for the ones where

7 you are selling something it would be per unit,

8 and the ones where you are not giving information

9 would be per day. And then we would go ahead and

10 think about other factors as articulated in the

11 policy statement that I am going to mail around

12 to everyone to assess what the appropriate civil

13 penalty would be in the particular case we are

14 dealing with, because every day is different. 

15 And then we would offer a settlement figure

16 typically as well. So, we would say okay, here

17 is what the maximum is. Here is what we think is

18 the appropriate amount for what you have done. 

19 Here, if we are willing to have everyone settle

20 and not go to court over this, here is what we

21 are willing to charge you.

22 So, those could be three different
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1 numbers. They could be all the same number,

2 depending on the case and the facts. That is how

3 we do business.

4 So, I don't think there is anything

5 unique to the regional enforcement context that

6 needs to be discussed here. I think those are

7 just going to be, from our point of view applied

8 equitably to the whatever prohibited acts we put

9 in place here, unless folks feel differently

10 about that process.

11 MR. EISNER: Does anyone think there

12 is a difference with regional standards that

13 would void their action?

14 MR. DENNIS: I just have a question

15 about the procedures for putting in place the

16 $200 fine.

17 Like in this case that Harvey was

18 talking about, somebody has done something that

19 might be wrong one-off and then you come and say

20 we would like data from you. And either we are

21 going to give you 30 days and start charging you

22 $200 a day or another option would be under
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1 threat of subpoena, in which case I think a

2 subpoena then you get in the judicial process;

3 whereas, a $200 fine, kind of wondering what the

4 administrative process is. I mean is that just

5 DOE's discretion? If we give them the authority,

6 they can start fining people based on someone

7 calling them up and saying we think that they did

8 this? I mean is there any kind of process,

9 judicial check?

10 My concern -- and I would like to know

11 a little bit more about that before kind of

12 supporting or not, I guess opposing the $200 fee

13 on the records, just because I know that getting

14 information can be a priority of DOE and it

15 really, it is more comfortable when there is a

16 process with some checks in it.

17 MR. RAWALD: Right. And I get what

18 you are saying, Keith. So, here is the process

19 as it happens and this is created by EPCA and

20 this would not diverge in the regional

21 enforcement context. It would be treated the

22 exact same.
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1 So, when we provide a notice to

2 someone that we are proposing a civil penalty,

3 they have three options. One, to pay a

4 settlement figure, which is typically lower

5 because they are going to avoid a lot of cost and

6 expense on everyone's part. Two, to demand that

7 we go before an administrative law judge, who is

8 an independent body not part of the Department of

9 Energy who would then look at the issue and

10 decide whether or not there should be some sort

11 of assessment of a fine. And if they don't like

12 the administrative law judge's decision, they

13 could always appeal that to the circuit court, a

14 federal circuit court that has jurisdiction. Or

15 three, to demand that we actually go to a federal

16 District Court to settle the issue.

17 So, there is a judicial process in

18 place. There are judicial checks and the

19 Department can't just steamroll over people. I

20 mean those options are given to the individual

21 before they decide what they are going to do.

22 So further, just to help assuage your
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1 concerns, the Department does have discretion. 

2 We don't just decide to put a ticker on, like you

3 are in a taxicab and the money is going to start

4 piling up. So, we look at each case. We look at

5 what is going on. We are very reasonable as far

6 as if the circumstances of the individual require

7 them to need more time, we give people more time.

8 So, I think that we will look at it from the

9 point of view that not every case is the same but

10 there is, as you were talking about, a judicial

11 process in place that would in some way get

12 people more options if they don't feel

13 comfortable dealing just with the Department of

14 Energy.

15 MR. EISNER: Does everyone agree that

16 DOE is reasonable?

17 (Laughter.)

18 MR. DENNIS: I mean the problem that

19 we have sometimes with that argument is that the

20 people that we are talking to now are reasonable

21 but we don't know who is going to be here in five

22 years. And having worked for the government, I
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1 know how an IG report or if somebody comes down

2 and says we want data, someone is on the hook for

3 that and they start saying we have this thing

4 where we can start saying we are going to start

5 charging everyone $200 if they don't give us

6 data.

7 And I have been in situations where I

8 have seen, you know I tell people that is bad

9 idea, when I worked here. And some people just

10 don't listen to reason. And I think that that is

11 doesn't happen right now. I think that you are

12 not going to do that. I think the people around

13 here won't but there might be other regional

14 standards in the future. And as people start

15 sending in form letters saying we think people

16 are violating regional standards, there can be a

17 little bit of a harassment of $200 fines. So, I

18 say so will you take us to court? Starting off

19 with I have to go get a subpoena. That will at

20 least provide some level of accountability for

21 the people who are deciding to threaten $200

22 fines.
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1 So, I am not trying to say anything

2 about DOE or myself in this. I am saying that is

3 the concern that I hear. So, I put that out

4 there.

5 MR. RAWALD: Right. And this is Doug. 

6 And I think I have made the point before that you

7 can't rely upon always dealing with me because I

8 may not always be here. I will at least, at some

9 point, leave this earth, if nothing else.

10 So, I get that point. And I don't

11 want to have people just to have faith. And hey,

12 DOE put the nicest person they have in their

13 office in the room to make everyone think they

14 are nice. So, it is really not true, actually. 

15 There are a lot nicer people in my office than

16 me, first of all, but secondly, I get that point

17 very well and take it very well.

18 I just don't really know how to do

19 that. So one of the options on the table would

20 be, of course we discussed earlier incorporating

21 a look back provision into this. And so maybe if

22 we want to put that at a further time period out,
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1 we could all come back and say boy, we don't like

2 the way DOE is doing this. Let's go ahead and

3 cancel that particular aspect. And so we could

4 always put that in there. If people are

5 uncomfortable, they could have a four-year or a

6 five-year that allows us to go back and reassess

7 whether we really want to have this prohibited

8 act and this penalty for the records.

9 So, that is something to keep in mind,

10 just as you are thinking about your options over

11 there, Keith, I want to make sure you have all

12 the options out there that are available.

13 I'm not wedded to anything we said

14 yesterday. I just want to make sure we have them

15 all on the table so everyone has what is before

16 you. And those would an option on that. And I

17 hear your concerns.

18 MR. PORTER: So are we going to have

19 a look back to add penalties?

20 MR. EISNER: That has what?

21 MR. RAWALD: Right, Steve's point was,

22 Steve Porter's point was we could have a look
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1 back to add a penalty if we feel the subpoena

2 authority is not sufficient. I mean it is

3 consistent with the fact that they made pretty

4 clear that they don't think the penalty would be

5 needed from the distributor's point of view.

6 MR. EISNER: Any other comments on

7 this or do we want to leave this for now?

8 MR. RAWALD: I don't think there is

9 anything else on this issue. It is really just a

10 question of back to the prohibited act for

11 assessing money for the record. That is really

12 the question that seems to be on the table. 

13 There is some difference of opinion. And there

14 is some people that haven't voiced an opinion at

15 all on it. So, I don't know even know if we had

16 a vote on how it would come out. So, I think it

17 is worth us discussing that when we go back and

18 discuss the issues.

19 But I want to take all of the

20 prohibited acts back to the lawyers to have them

21 look at them while they are in this interim. And

22 then we will come back next week or two weeks or
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1 three weeks from now, actually, and I will let

2 you guys know what everyone else over here thinks

3 about those things and then we could decide, I

4 guess, how to go from there.

5 MR. EISNER: Okay, anything else on

6 this subject? We have finished the list. We did

7 have just come up one that we did not categorize

8 and it was whether there should be a requirement

9 or something else with respect to periodic

10 review. Would you like to discuss that now?

11 MR. RAWALD: I really liked Amy's

12 idea, which was to wait to see how everything

13 else goes and then kind of take it up at that

14 point and see are there any other things that are

15 making people feel like the look back would be

16 helpful.

17 So, I think knowing that it is out

18 there, is something to discuss but I still think

19 that is probably more timely to discuss kind of

20 at the very end of the process would be my

21 preference.

22 MR. EISNER: Okay, there was another
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1 issue yesterday that Amy raised about the

2 interplay between DOE and state enforcement. Do

3 we want to discuss that further now or do we want

4 to go back over the list?

5 MS. SHEPHERD: I think that that is

6 something that I want to discuss eventually but I

7 don't know, I kind of feel like that we are still

8 -- this is still gelling. And I would like to

9 get the rule together first. I don't think that

10 it -- it is a separate issue. So, I don't want

11 to interfere with any progress that we are making

12 here on this and then have to come back to this

13 when it is not fresh.

14 MR. EISNER: Okay.

15 MR. RAWALD: This is Doug. Plus I

16 think there is some research that needs to be

17 done to really tee it up well. Then I think we

18 can discuss it. 

19 I know Dave Hungerford could probably

20 give us some thoughts, which is helpful, but from

21 the Department's point of view, we haven't spent

22 any time and energy on this issue. So, I want to
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1 be smart on it before I talk about it.

2 MR. EISNER: All right. We should

3 discuss how we would like to proceed. We have

4 got a clean version of a lot of this stuff that

5 has been added and we circulated last night. We

6 wouldn't have the last items we talked about

7 today but before we get to them, I am sure we

8 could get that list to everybody.

9 Do we want to go through these again

10 and discuss them in more detail or do we want to

11 go back down and rate them in terms of their

12 effectiveness and their efficiency, in terms of

13 whether they should be on the list for that

14 reason? Because we haven't really, and

15 especially in the more difficult categories,

16 clearly defined what we are thinking about. 

17 In fact, there were a number of things

18 like whistleblowers and tear off labels that we

19 kind of delayed the discussion on those. How do

20 you want to proceed from here? Do you want to go

21 back to some of the ones that we need to discuss

22 further? Do you want to go through all those
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1 again?

2 MR. RAWALD: Well, this is Doug. I

3 guess I feel somewhat different. I actually 

4 feel like I have got a pretty clear sense of the

5 things that we are all, at least seemingly coming

6 together on, these are the things that we want to

7 do. So, I feel like we made a lot of progress

8 that way.

9 There were some do-outs from the last

10 meeting, specifically regarding the labeling

11 issue that Gary Fernstrom raised, which if folks,

12 you all talk about, I think would be a nice thing

13 to kind of talk about here. 

14 I know Harvey had volunteered to talk

15 about what they want on a label for the condenser

16 and then the manufacturers volunteered that they

17 would go home and talk to their folks about

18 whether they could fit something on the actual

19 nameplate of their condensing unit. I don't know

20 if that is something that people are ready to

21 discuss at all, if you want to put that away in

22 time.
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1 MR. EISNER: Other thoughts on how to

2 proceed?

3 MR. LATTANZI: This is Matt Lattanzi

4 with NORDYNE. The manufacturers haven't gotten

5 together and discussed labeling. If this is the

6 appropriate time, I think we can talk about that.

7 MR. EISNER: Well, it is the first one

8 the list.

9 MR. LATTANZI: There you go.

10 MR. GIBBONS: Why don't we take five

11 minutes to caucus and just make sure we have

12 everything lined up. I think that would be a --

13 this is John from Carrier. Sorry.

14 MR. EISNER: Sounds good.

15 MR. GIBBONS: I think it would be wise

16 so that we are coherent.

17 MR. ELLIS: All right, let's take a

18 five-minute break. Come back about ten of.

19 (Whereupon, the above-entitled matter

20 went off the record at 9:42 a.m. and resumed at

21 10:06 a.m.)

22 MR. EISNER: Okay, John.
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1 MR. HURST: John Hurst with Lennox. 

2 The manufacturers want to talk about labeling. 

3 And before I kind of jump into the idea, I want

4 to remind people that currently on a condensing

5 unit, there is not a lot of flat surface face to

6 affix labeling. We have a data plate or a name

7 plate, different manufacturers call it different

8 things. It is chock full of information. They

9 are oftentimes located in a fairly standard

10 location on the unit. And remember the unit is

11 louvered. So again, there is not a lot of flat

12 surface to affix a label.

13 What the manufacturers are willing to

14 do or committing to do is to come back to the

15 group with some concepts, and this is pending the

16 guidance being clarified. We have to first

17 understand what that is. But we would affix a

18 label which is as rugged as our current name

19 plate or our data plate and the information would

20 either be contained on that data plate or, in

21 some instances, manufacturers have difficulty

22 putting more information on that data plate. But
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1 we would have a statement, an exclusionary

2 statement, and we will come back with concepts

3 what we think it ought to look like, which would

4 very clearly indicate whether or not a unit

5 subject to regional standards was compliant for a

6 specific region. So, for example, a 13 SEER unit

7 may say something like not for sale in the south

8 and the southwest. Very intuitive. it should

9 serve the purposes for any inspector or any

10 contractor and make it explicit what is not legal

11 in a specific region of the country.

12 Again, this would be for products

13 only, subject to the regional standards. We

14 wouldn't be labeling, obviously, 20 SEER product

15 that says for sale in all three regions. There

16 wouldn't be a need to do that because it is

17 compliant in all three regions.

18 With that, I think I would like to

19 open it up to any commentary or questions. But

20 again, it is incumbent upon the manufacturers to

21 come back with some concepts for the group to

22 evaluate.
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1 Karen?

2 MS. MEYERS: Yes, and we have

3 committed to do that at the next meeting.

4 MR. AMRANE: This is Karim with AHRI. 

5 And again, this is contingent upon DOE issuing

6 the guidance that you have explained the other

7 day, too.

8 MR. RAWALD: The 14 SEER guidance? 

9 Okay, that is what I understood. So okay, that

10 makes sense.

11 And so I think we should all keep

12 operating under the assumption that it is what it

13 is going to be. But I understand the concern for

14 more finality on that. So, I will get back to

15 you folks on that.

16 I think that that is a really great

17 push forward from the manufacturers as far as

18 meeting what Dave Hungerford pitched as would be

19 more useful, based upon what was put forward at

20 first by Gary. But I would be interested to hear

21 from Elizabeth and Harvey because they are the

22 ones kind of looking at it from their point of
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1 view over the break about what their thoughts are

2 on this kind of proffer.

3 Just so people understand, the

4 labeling has traditionally been an FTC issue. 

5 And so from a legal authority point of view, I

6 have had people looking at whether or not the

7 Department could issue a rule regarding this or

8 whether FTC would be the one to issue a rule

9 regarding putting on the nameplate.

10 What my communication with the folks

11 at FTC is, if we can't do it but we think it is a

12 good idea, they will go ahead and do it. So,

13 they will always initiate a rule to follow-up on

14 this. So, they will be open to that.

15 So, we are going to nail down the

16 legal authority for issuing a rule regarding

17 labels of this type and then we will get back to

18 you on that.

19 MR. HURST: Doug, do we need a rule to

20 -- this is something that all manufacturers are

21 agreeing to do. We would come back with a

22 consistent --
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1 MR. RAWALD: Right. You wouldn't need

2 a rule, as long as you guys felt like everyone

3 was in line with what you are doing.

4 MR. HURST: Okay.

5 MR. RAWALD: So, that is the question. 

6 If six of you do it and the other doesn't and you

7 are like well, that's not fair, we want to --

8 that is the one thing. 

9 So, you have decide among yourselves

10 about how you feel about that, I guess.

11 MR. HURST: Yes, the manufacturers

12 represented here today are all in agreement with

13 this approach.

14 MR. EISNER: And just for my

15 clarification, this is not in lieu of the FTC

16 label or it is?

17 MR. HURST: No, absolutely not. It is

18 in addition to.

19 MR. EISNER: In addition to.

20 MR. HURST: And again, the purpose is

21 you are looking at the name plate or somewhere

22 near the name plate, if you are a contractor or
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1 an inspector, it would be very clear that the

2 product is either compliant or noncompliant.

3 MR. ROCKY: Yes, this is Bryan Rocky. 

4 So again, just to restate it, the FTC label is

5 focused towards the consumer. And we will follow

6 the requirements of that rulemaking for

7 information for the consumer. 

8 As discussed, this additional text or

9 whatever we are going to end up deciding as an

10 additional label is for the contractor, the

11 inspector, the utility person, whoever, that

12 helps provide a base that this product does or

13 does not comply with the regional standards for a

14 very narrow focus.

15 MR. FERNSTROM: This is Gary for the

16 California utilities. I only have one comment. 

17 This is great. Thank you.

18 MR. EISNER: Others?

19 MR. SACHS: This is Harvey and, as you

20 might predict, I have several comments. The

21 first is to echo Gary and say thank you and I

22 like it.
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1 I do have some questions. Let's

2 assume an OEM wants to use this information on

3 products that are not subject to regional

4 standards, a 20 SEER unit, and just wants to do

5 that. Will this be structured so it is

6 permissive that he can do that, if he chooses to

7 as part of his marketing strategy?

8 MR. HURST: Sure. I mean, yes, we

9 could affix all sorts of stuff to things that we

10 currently choose not to do. So, what if a

11 manufacturer chose to -- sure, there would be no

12 exclusion from doing that.

13 MR. SACHS: You know, best national

14 unit available or whatever. Good, that is

15 helpful.

16 The second thing that is on my mind is

17 really tied to the second and third things. One

18 of them is looking at the draft labels. We

19 happen to have some people who have a fair amount

20 of experience in consumer labeling in our shop as

21 well. And I would like to have a couple of days

22 to take drafts to these people to get their
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1 reactions. And that particularly hinges around

2 questions like whether this is inclusive or

3 exclusive. Are we going to be labeling something

4 as legal for sale in all states versus or not

5 legal for sale in the following states? How are

6 we going to do this? Is it going to be labeling

7 region versus a list of states? So, there are a

8 lot of these detail questions that I think need

9 to be addressed.

10 MR. HURST: Yes, so first off, we

11 would like the input.

12 MR. SACHS: Thank you.

13 MR. HURST: I think we want it to be

14 intuitive. I think our original thinking we have

15 discussed a couple of different ideas but we want

16 to come back to you with some ideas before

17 committing to anything.

18 But I think what we envisioned was

19 something that would say it would be

20 exclusionary, not for sale in, and then maybe

21 have a box with an X in it. That way, you know

22 if it was inclusive, you could gain it by putting
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1 a mark in the empty box and all of a sudden that

2 which is not legal becomes legal. So, we thought

3 an exclusionary type of label would be better

4 than an inclusive type of label.

5 I don't envision listing all the

6 states. Again, we have to look at the concepts. 

7 The challenge there is there is a lot of states.

8 You could do something that has, you

9 know one of the ideas was to put a website under

10 it, you know, www.doe.gov/regionalstandards.

11 So, if I am in Texas, looking at the

12 rate and it says not for sale in the south, it

13 would be a reasonable assumption that I am in

14 Texas, I am in the south. I go to the website and

15 low and behold Texas is a southern state and I

16 have a noncompliant unit.

17 So, that is kind of the general

18 thinking but again, let us come back with some

19 ideas and we will certainly welcome yours.

20 MR. SACHS: That is very much

21 appreciated. Another question that just came up

22 is that I assume that whatever text comes to us
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1 will say this lasts as long as the regional

2 standards last. This is not something we are

3 doing for two years or whatever.

4 MR. HURST: That is correct.

5 MR. SACHS: So, if we can work -- if

6 we can have time to look at these things and try

7 to vet them, I certainly would urge ACEEE and

8 others to support this, which means wherever

9 appropriate, but I don't want to take words away

10 from the rest of this caucus. Or did I?

11 MR. RAWALD: Well, Tim and Laura will

12 take a chance to think about what Harvey just

13 said.

14 So, from the Department's point of

15 view, something that might be valuable to

16 consider adding would be the 1-800 number that we

17 establish. So whether that would be something to

18 put below, so you know, below the not for sale

19 and call this number. So, something like that

20 may be helpful from the Department's point of

21 view.

22 The Department is generally receptive
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1 to agreements among the industry, as you guys may

2 or may not be aware. So, we do like that. So, I

3 think that they will be receptive to that

4 concept, rather than doing rulemaking but I will

5 get back to you on that.

6 MR. HUNGERFORD: Hi, this is David

7 Hungerford. I haven't said anything for a while. 

8 I am very encouraged by this. I appreciate the

9 effort you guys are putting into this and I am

10 looking forward to seeing what you end up

11 proposing.

12 MS. HARIHARAH: This is Johanna from

13 the Department of Energy. I just wanted to know,

14 are going to have a cutoff date for when this is

15 label is good until? Because if we change the

16 standards in the north, for example, then it

17 won't be able to be sold there or something like

18 that. Because I mean the 13 SEER is not going to

19 last forever, et cetera.

20 MR. DORIA: Yes, this is Jordan with 

21 Ingersoll Rand. I mean we haven't talked through

22 all of that but I think our general view is
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1 certainly that the label would evolve as regional

2 standards evolve and as long as they exist, we

3 would tie it in some manner to it. I guess

4 mechanically figuring out how we would do that,

5 whether it would actually be in the standards

6 rulemaking or the future enforcement rulemaking,

7 I don't know the answer to that but I think that

8 is very much our view.

9 The only other thing I just wanted to

10 say in response to Harvey, I am glad that you are

11 optimistic about this and definitely want the

12 feedback from others at ACEEE but you made the

13 comment about getting some of your people who

14 have expertise on sort of the consumer behavior

15 in the world of labeling. But the point we

16 really want to make here is that this is about

17 determination of compliance. The FTC guide is

18 the consumer label. It comes to the consumer in

19 many, many ways. Is that label that really

20 presents the potential to provide meaningful

21 information and potentially even educate people

22 moderately to the extent they choose to become
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1 educated? We are talking about a very, very

2 small label here. 

3 So, I just want to make that clear as

4 your people review it, that this is, in many

5 ways, not exactly a consumer facing label. That

6 is the EnergyGuide label.

7 MR. SACHS: Jordan, that is very

8 helpful. That is the good news. The bad news is

9 it stimulates another question. And that is that

10 we all, I think, are very encouraged by the idea

11 of a permanent label on the condensing unit. I

12 just assume it be something that can be read from

13 30 feet and actually covers one face of the

14 condensing unit but I am not going to get that.

15 (Laughter.)

16 MR. SACHS: But one firm here has or

17 does still offer condensing units labeled with

18 football teams but we are not naming names.

19 The question that I have is what of

20 this information will be carried on the box. 

21 That is a question really of clarification but

22 also of one more piece of evidence in case of
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1 people who turn out to be routine violators. Why

2 do I keep thinking habitual?

3 MR. DORIA: This is Jordan with

4 Ingersoll Rand. I think as we go back and look

5 at actual sort of drafts of a label, we can talk

6 about that. As I understand it, the EnergyGuide

7 label is on the box. Assuming we get the

8 guidance and all those other things, I think that

9 the issue is that the EnergyGuide label is not

10 permanently affixed to the outdoor unit.

11 MR. SACHS: Yes.

12 MR. DORIA: Right, so that this is

13 seeking to provide that additional source of

14 information. And I feel like on a box it would

15 be more duplicative than additional.

16 MR. SACHS: All right, so we are

17 putting all our eggs in this FTC basket -- all

18 our remaining eggs in this FTC basket and I very

19 much appreciate your providing the second basket.

20 MR. ROCKY: Harvey, that is the law.

21 MR. SACHS: I understand.

22 MR. ROCKY: So, we are adding
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1 information as part of the discussion for this

2 enforcement. Everything else goes back to the

3 FTC label.

4 MR. BALLO: So this is Tim with

5 Earthjustice and I think this is a great move

6 forward.

7 The only issue I have and I don't want

8 the content of this to be specified to the level

9 of detail that is in the FTC regs with the

10 EnergyGuide label in the sense of Arial narrow

11 point, you know eight-point font, whatever. I do

12 think there needs to be some just bare bones

13 regulatory requirement that the nameplate must

14 indicate X. And that is just because the

15 manufacturers in this room don't necessarily

16 account for 100 percent of the industry and there

17 should be some teeth to it, so that if there is a

18 bad actor out there that is not putting this on

19 their nameplate, that there is the ability for

20 FTC to get them.

21 MR. HURST: So, I just want to

22 clarify. This is John Hurst with Lennox. 
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1 Tim, we would commit to -- some

2 manufacturers have no issue putting it on the

3 nameplate and have real estate. Because of the

4 space or the configuration of some manufacturers'

5 nameplates, it may have to be a separate equally

6 ruggedized not a sticky note, something that will

7 stay on the unit for some time but reasonably

8 close to the nameplate. It is easier for some

9 manufacturers to do it than others.

10 MR. BALLO: And that is exactly the

11 sort of level of detail I wouldn't want the regs

12 to have go into.

13 MR. HURST: Yes, but I do think we

14 can't say that it is going to be size four font

15 and in Cyrillic alphabet or Mandarin Chinese or

16 something. I think we do need to come back with

17 some base standard.

18 MR. EISNER: Other comments? Other

19 questions?

20 MS. NOLL: This is Elizabeth. I would

21 just offer that I think this is great and I think

22 we are moving in the right direction. And I
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1 think this arms a lot more people and informs

2 them on if they were to choose to go and look at

3 their outdoor unit, they would be able to easily

4 identify. And I think that is helpful in what we

5 are trying to accomplish here. So, thank you.

6 I do have one question. Is the idea

7 that this would be, and again, obviously when you

8 guys would come back, but would go into effect on

9 January 1, 2015 that all labels would have that

10 applied to them?

11 MR. HURST: I don't know. I think we

12 have to wait for the rule to be published. We do

13 have, you know there is going to be a period of

14 time where you have the 18-month grace period. 

15 It may not be perfection. It may not start

16 January first for all manufacturers but I think

17 we will all commit to getting it implemented as

18 quickly as possible but I think we have to wait

19 until the rule gets published.

20 MS. MEYERS: This is Karen with Rheem. 

21 So, if we come back in three weeks with a concept

22 and we all agree on it and we take a vote on
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1 that, on what September 23rd or 24th? There is a

2 much better opportunity of this going into effect

3 January first. But if we wait until this rule is

4 final, it will not go into effect January first.

5 So, I think all manufacturers would

6 like to do it. But you know we have to have an

7 agreement around this table and a vote on the

8 concept in three weeks, if you want that to

9 happen. And still, it is going to be

10 questionable for some companies.

11 I just want everyone to know that this

12 was not an easy consensus reached among the OEM. 

13 So, we have been working on this for a long time. 

14 A lot of emails have been going back and forth.

15 So, you know, thanks for your support

16 on this. There is some timing issues with some

17 people and I think we all would like it to go

18 into effect January first but we will need some -

19 - you know there is some people that think that

20 it can't. I don't know because I don't know what

21 it is going to look like yet and what the size

22 is. So, my people can't tell me.
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1 So, the sooner I have an agreement on

2 that, then I can give you answer on when it would

3 go into effect.

4 MR. AMRANE: This is Karim with AHRI. 

5 In addition to what just Karen said, I mean DOE

6 has to do rulemaking on whatever we could agree

7 here around the table. And how long it is going

8 to take, I mean probably until the end of the

9 year, I mean at the earliest. And then it is

10 going to be up for comment. So, I don't know

11 when the rule is going to be final. 

12 So, obviously, January 1, 2015 is

13 probably not going to happen just because of

14 rulemaking. It is not going to complete by then,

15 right?

16 MR. RAWALD: Karim, I think you are

17 being very practical, given the fact that you

18 have been involved in a lot of rulemaking to

19 understand that there is going to be, no matter

20 when the notice is finally put out, there is

21 going to be a 30-day comment period. So, if we

22 are operating under an assumption that we
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1 actually finish by the beginning of October and a

2 rule gets published sometime in October, which

3 would be very aggressive, that would be the most

4 aggressive time I would have the rule finalized

5 by the end of the year. 

6 I think it is more likely that the

7 final rule probably would not happen before the

8 end of the year, just looking from a very

9 practical point of view. Though, I could say

10 that everyone is lining up and every way possible

11 to try to make this happen as quickly possible

12 until we hand them a list of items. 

13 One of the things that I am going to

14 be working with the contractors on during the

15 two-week interim we have here is putting together

16 draft language in some way to address the things

17 that I think we are pretty agreed upon that we

18 can tweak as we get to the final point so that we

19 can start trying to lean forward on this as much

20 as possible. I think it is important for people.

21 MS. MEYERS: This is Karen with Rheem. 

22 And I think just speaking for my company, if we
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1 have a vote and an agreement, in three weeks I

2 think my company will proceed down the path of

3 making the changes to the bills and materials, et

4 cetera, assuming that this is going to go into

5 effect.

6 So, I don't know if all OEMs will do

7 that or if they will wait. But that is why I am

8 saying in three weeks, if we have 100 percent

9 agreement, then we will probably start doing the

10 drafting and engineering work required to make it

11 happen. I don't know if other OEMs will do that

12 or not. But just speaking for my company, that

13 would probably be our action.

14 MR. SACHS: This is Harvey and I very

15 much appreciate the urgency and the efforts you

16 all are making. At the same time, if we are

17 going to engage what expertise we have, we will

18 have to have a little bit of time to do that. We

19 are scheduled tentatively to have meetings the

20 first and second of October. If I have a week,

21 that is certainly helpful if you want to send

22 drafts earlier that we can look at and try to ask
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1 people about, I am happy to do that. But I am

2 not at all sure that between the 24th and the

3 25th our folks would be in town.

4 MS. MEYERS: This is very time

5 sensitive.

6 MR. SACHS: It is very time sensitive

7 and I think we are all very respectful of that. 

8 I think in practice, it is -- 30 days into 2015

9 are of less concern than getting it right. And I

10 really appreciate what you all have been doing.

11 I do have one question for John, I

12 guess, relative to the term ruggedized. I am

13 taking that to mean that this will be an

14 externally mounted nameplate or whatever. We

15 haven't made that explicit but that is certainly

16 a concern I have.

17 MR. HURST: Yes, so different pieces

18 of equipment have different things affixed to

19 them today. For example, I have a unit outside

20 my house that had a 410A sticker on it. That has

21 withered under the elements of the Texas sun.

22 The data plate or the nameplate is
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1 typically of stronger material. It lasts

2 throughout the lifetime, hopefully, of the

3 equipment, where a servicing dealer or a

4 contractor, such as Chuck and his company, may be

5 able to get relevant data or information like the

6 serial number, the model number. But that has to

7 last or should last the lifetime of the

8 equipment. So, the idea of it being ruggedized

9 is of like material as what our data plates or

10 our name plates would be such that five years

11 from now it doesn't wrinkle, shred, and come off

12 the equipment.

13 MR. SACHS: This is Harvey again. 

14 Much appreciated. I think my concern is more

15 explicit that it not be behind the access plate

16 to the controls, the wiring and the --

17 MS. MEYERS: So, Harvey, this is

18 Karen. The conversations that we have had is

19 that it will either go on the nameplate or go

20 next to or as close to the nameplate as possible. 

21 So, it would be right there with all the other

22 information about the unit.
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1 MR. SACHS: Outside?

2 MS. MEYERS: Yes.

3 MR. HURST: On the bottom.

4 MS. MEYERS: I think Bryan may even

5 have a printed one that he can show you.

6 MR. HURST: Yes, and the idea, again,

7 is whoever is looking for information on the

8 nameplate or the data plate would also see this

9 information as well.

10 MR. SACHS: I love you all, sometimes.

11 MR. ROCKY: So this is Bryan. So, I

12 actually have a sample of our current print on

13 demand process rating plate used on our

14 condensing units. And it is an example of what

15 we do today. Every manufacturer has similar

16 products but not exactly the same. And so text

17 and font and available area differs by

18 manufacturer. In my case, we standardized

19 product on our labels a year and a half ago. So,

20 I am more fortunate than some of the other

21 manufacturers in what I can do immediately. It

22 is database manipulation. 
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1 But this is an example of a CSA UL2 approved material for rating plates. And we all,

3 as manufacturers, have to meet those requirements

4 under the standard for durability and readability

5 and everything else of this material. So, when

6 John says material like a rating plate, there are

7 options but they are going to be considered

8 permanent labels.

9 MR. RAWALD: This is Doug and because

10 I am always on a quest to find things that are

11 corollary to the things we do now, so for items

12 that are built for export that are noncompliant

13 with standards there is a requirement that they

14 be marked for export only. Are those items

15 marked on the actual condensing unit or are they

16 marked on the packaging somewhere? The ones that

17 are built that are noncompliant with the standard

18 but are for export only, what are folks doing

19 with that? Does anyone know offhand?

20 MR. ROCKY: Yes, so this is Bryan,

21 Johnson Controls. For our products that are

22 export only, they have unique model numbers. So
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1 that is what goes on the rating plate. And then

2 the cartons themselves are marked for export only

3 as far as the packaging.

4 So, we use the two different methods. 

5 The model numbers are different. And those model

6 numbers are not available for sale to any of our

7 customers in the U.S. If there is an exception

8 of a distributor like Steve, who is exporting

9 units, they have certain levels of paperwork and

10 requirements to fill out and tracking is very

11 key. But model numbers is the main thing,

12 cartons marked for export only.

13 MR. GIBBONS: Yes, this is John at

14 Carrier. Very similar but one thing to add is

15 Canadian units. They are marked the same as the

16 U.S. So, at least for the north.

17 MS. MEYERS: This is Karen with Rheem. 

18 I am not sure there is requirements for export

19 only, any federal requirements.

20 MR. RAWALD: So, the requirement under

21 EPCA is that if a product is a noncompliant

22 product -- so if it is compliant with the U.S.
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1 standards, nobody cares, right? But if you are

2 making, say a 12 SEER condensing unit because you

3 are going to ship it to South America, it needs

4 to be marked that it is for export only. So that

5 way, we don't confuse it and think that it is for

6 use in the U.S.

7 So, if you are not making those, it

8 doesn't matter. But I guess I was curious if

9 there was any corollary here to draw from. It

10 seems that there is not. It is more on the

11 packaging, not on the actual unit. So, there is

12 not much to be learned from that example for this

13 case. But I was just curious as we were thinking

14 about this.

15 So, I appreciate your guys' input. 

16 That was really helpful.

17 MR. GIBBONS: This is John again. And

18 in most cases, I think the voltage is different,

19 too.

20 MR. RAWALD: That is a give-away.

21 MR. GIBBONS: Yes.

22 MR. EISNER: Okay, anything else on
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1 this part? All right, we also had a second idea

2 on tear off labels. Is that something we still

3 want to talk about?

4 MR. RAWALD: So, Gary and I pushed

5 this aside to hear how people felt about record

6 retention and records production. So, I guess

7 now that we know we are kind of circling around a

8 pretty decent record retention scheme, I guess

9 the question is to Gary whether he feels that

10 this other approach is still necessary or if you

11 want to keep it on the table to see how the

12 language comes together for record retention for

13 a while? I mean so how do you feel about that?

14 MR. FERNSTROM: This is Gary for the

15 California IOUs. I am happy with the record

16 retention approach.

17 MR. EISNER: Does anybody else have

18 any thoughts on this or are we okay to go to the

19 next item?

20 Okay, the next item is QR Code labels. 

21 Any discussion on that?

22 MS. MEYERS: So this is Karen with
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1 Rheem. I would not support that idea.

2 MR. RAWALD: And this is Doug. With

3 the much more visible and informative label you

4 guys are offering, I think this is really not

5 going to be useful. This would be a fall back if

6 we weren't going to get this other thing which,

7 seemingly, is much more approachable to the

8 average person.

9 MR. ROCKY: Yes, Bryan Rocky. So, as

10 you may have noticed on my rating plates, we have

11 it on there. So, as a voluntary item, I think

12 that is acceptable if manufacturers want to do

13 that and tie it in to whatever the use the QR

14 code labels. But as a requirement, I would

15 support, as Karen said, I don't think it is

16 necessary at this point.

17 MR. EISNER: Okay, anybody want to

18 make a contrary argument? All right.

19 MR. SACHS: This is Harvey. I

20 reluctantly have to acquiesce. I think it is

21 something that adds value and I accept that Rocky

22 wants to do it and nobody wants to be required to
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1 do it. Let's go on.

2 MR. RAWALD: Harvey, you just really

3 prefer his last name to his first name, don't

4 you?

5 MR. SACHS: I'm sorry?

6 MR. RAWALD: You really prefer Bryan's

7 first name to his last name. It is an obsession

8 with Rocky. I understand.

9 MR. ROCKY: Actually, Doug, I

10 appreciate the fact every time you point out the

11 mistake, Harvey hits himself.

12 (Laughter.)

13 MR. SACHS: You know, some of us start

14 senility earlier than others. I began at 40.

15 MR. EISNER: Okay, I assume the next

16 one, manufacturing labeling is what we have taken

17 care of. Nobody had any other thought here, did

18 they?

19 Okay, that brings us to six, label

20 packaging in unit. I'm not sure what we meant.

21 MR. RAWALD: Right. And that, I

22 think, goes back to the question Harvey asked
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1 earlier about whether we have put it on the

2 outside or not or was it Tim, I'm not sure. One

3 of the two of you asked that question. And I

4 think that we have dealt with that as well as

5 part of this whole discussion we had about the

6 manufacturers. We wanted to put it on the actual

7 unit.

8 MR. EISNER: Anybody disagree? Okay,

9 that brings us up to communication. The first

10 item is public outreach or a list of things here

11 under A for DOE to do.

12 MR. RAWALD: Right. So as I mentioned

13 yesterday, I think we are ready to commit to

14 developing at least a trifold for folks to

15 distribute possibly some posters, et cetera, to

16 put out there for people to post it over the

17 counter distribution for folks to have in their

18 office space to remind their contractors who work

19 for them. And that is why it was trifold,

20 hopefully for the contractors to slide across the

21 table to the consumer so that they know what they

22 are getting into, if they are going to say they
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1 are going to buy it from somebody else who has a

2 cheaper product that isn't compliant.

3 So, I think we are -- I am pretty much

4 happy to at least do that. So, I will more on

5 that over the interim but I think that we are

6 there on that.

7 The more robust kind of questions for

8 grant money or for money for public outreach or

9 commercials, those kind of things, as I mentioned

10 yesterday, I don't think the money is going to be

11 there for that but I will ask the question. But

12 it seems like people from yesterday were at least

13 happy with the proffer that I was able to give,

14 which hopefully will give us somewhere to start

15 here.

16 Also, the webinars are definitely

17 doable, as I talked about before. From an

18 affordable point of view, I and my office will be

19 able to conduct webinars with folks, educate them

20 as we do now in terms of the industry. So, we

21 would open that up to anyone as far as that goes,

22 webinar education on what is going on but that
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1 would be more for the industry than for

2 consumers, I would think.

3 MR. MELCHI: This is Jon Melchi with

4 HARDI. Doug, if I could make a recommendation it

5 would be for the Department to also make those

6 collaterals available in a PDF format on whatever

7 website, in case a contractor runs out or a

8 distributor runs out of the trifolds, that they

9 could easily print some up at their locations. 

10 That would be hopeful.

11 MR. RAWALD: Yes, that makes sense. 

12 And I think that we would want to set up a whole

13 website regarding information regarding regional

14 standards, too. So, that is a game idea that we

15 could work on.

16 MR. EISNER: Does anybody want to

17 argue for this to be implemented via regulation

18 or just a discussion in the preamble?

19 MR. GIBBONS: Well, this is John from

20 Carrier. I was going to ask about timing because

21 the sooner we get in front of this, the better,

22 get professional contractors out showing folks
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1 what regional standards are and maybe already

2 starting to sell compliant product ahead of the

3 game. I think we are better off.

4 MR. RAWALD: Yes, I'm going to ask if

5 we can start working on this now.

6 MR. DORIA: This is Jordan with

7 Ingersoll Rand. I feel like it could be handled

8 in the preamble is my feeling. Just one sort of

9 thought for the group on the content. Obviously,

10 I think we are going to leave it largely to the

11 Department to decide but I think there is a sort

12 of thematically a couple of approaches.

13 One would simply be informative and it

14 is something from the Department simply saying

15 what the requirements are and what the regional

16 standards are.

17 Another approach would be something

18 that would, I would say, attempt to elicit some

19 degree of fear, for lack of a better term, that

20 if you don't comply you will in fact be caught. 

21 Right? And that could be some commentary on

22 possible approaches that the Department either
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1 will employ or could employee in an attempt to

2 catch bad actors. And it could also simply be to

3 focus on what are the penalties for

4 noncompliance. And I think this sort of ties in

5 with the idea that ultimately our goal is to

6 dissuade people from not complying in the first

7 place.

8 So, I would sort of ask the

9 contractors, as well as the distributors, whether

10 or not you think that approach may be in addition

11 to something that is purely informative would

12 have value.

13 MR. WHITE: This is Chuck White. I

14 think you bring up a good point and I hadn't

15 really thought about it in this respect but

16 perhaps we are only talking about a couple of

17 items, one for consumers that could explain the

18 benefits, the energy savings, the basis of the

19 rule, explain the geographic zones, similar

20 information to the contractors but also include

21 more information about enforcement actions and

22 methods they need to comply with, records
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1 retention, a lot of the business operation end.

2 And so perhaps we have a couple of

3 pieces of collateral here and not just a one4 size-fits-all. But the consumer, I think, needs

5 less information -- that is not really the right

6 thing to say. They need it a little more easy to

7 grasp and in shorter bites, so you get their

8 attention, you get the information to them. They

9 don't need as much detail as a contractor needs

10 to be sure the contractor is in compliance. The

11 consumer just needs to know the product they are

12 getting is right and this is why.

13 MR. EISNER: And should the consumer

14 information cite anything about purchases via the

15 internet and the implications of that?

16 MR. WHITE: This is Chuck White. I

17 would love to discourage internet sales but they

18 need to be aware no matter where they get the

19 product that especially in a competitive

20 situation, if they have three quotes in front of

21 them and two of them are SEER 14 and one of them

22 is SEER 13 or one doesn't have a specified SEER
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1 rating, that that is a question that they

2 probably need to ask. And here is the reasons

3 why: the compliance, it is going to save you

4 money in the long-run and it is a way that a

5 consumer can kind of have their attention up, be

6 paying attention to the things that are being put

7 before them. Because most of them see air

8 conditioner, X dollars and you are going to fix

9 it and I am going to be cool again. That is what

10 they see. And directing them that there is this

11 efficiency rating, there is a benefit to paying

12 attention to it. And it is possible, there are

13 people in the marketplace that may try to slip

14 one by you.

15 MR. PORTER: This is Steve Porter with

16 Johnstone Supply. Yes, I agree. I think there

17 should be something that informs the homeowner

18 that since anybody that installs will then become

19 a contractor and they will be subject to the same

20 level of fines. And a lot of those online sales

21 are going to be purchased by homeowners that are

22 going to get their brother-in-law, or they are
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1 going to do it themselves, or somebody is going

2 to install that unit.

3 So, I think that needs to be made

4 clear to them that they will be subject to the

5 same laws and the conditions as the contractor,

6 once they do the installation.

7 MR. RAWALD: So, this is Doug. And I

8 hear that. I am curious what would be our method

9 of delivering that message to people that are not

10 meeting with a contractor otherwise? So, what is

11 the best method by which I can get a message to

12 someone who is just going to go on the internet

13 and shop and never call a contractor into his

14 house who is going to give him the pamphlet? How

15 else? I mean, do you folks envision mailers? 

16 What do you think is the most effective means of

17 reaching those people that otherwise wouldn't be

18 touched by someone who is in the normal chain of

19 events that we have been describing over the

20 course of this discussion?

21 MS. MEYERS: So, this is Karen with

22 Rheem. I think one of the things that we would
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1 like is be able to link on our Rheem website to

2 the DOE website that has the webinar information

3 or whatever. I think that is something we are

4 looking for.

5 A lot of consumers do go to our

6 websites. Our websites are consumer facing. So,

7 we have other websites that are for our

8 distributors. But our primary Rheem.com website

9 is a consumer website and that is where we would

10 like to be able to link back.

11 MR. RAWALD: Okay. Amy, would AHRI

12 want to do that as well, do you think?

13 MS. SHEPHERD: Yes, we can put that 

14 information on our consumer page.

15 MR. RAWALD: So, I will have the

16 lawyers look at the implication of that. I don't

17 think it is an issue but I want to make sure that

18 it is not before I commit.

19 MR. PORTER: Steve Porter from

20 Johnstone. HARDI would.

21 MR. WHITE: This is Chuck White. I

22 know PHCC would and I will volunteer Charlie
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1 McCrudden too. I'm sure they would be glad to do

2 it as well.

3 The contractor associations, we will

4 be undertaking messaging out to contractors and

5 try to get information out. We have consumers

6 that check our websites for contractors and

7 changes in the industry and things like that. We

8 certainly would feature this in a prominent home

9 page position, at least early on, and try to

10 direct that information.

11 But one of the things, as an

12 association we try to do is make sure our members

13 are educated to what is going on in the industry

14 so we are all moving in the right direction. 

15 So I know at least our association

16 will certainly step up on that.

17 MR. HURST: John Hurst from Lennox. 

18 I agree with what everyone said. I wanted to

19 provide a little more context on why it is

20 important that we don't do it individually. 

21 There is already a lot of confusion in the

22 marketplace. It would be great to be able to
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1 direct people to one message.

2 So, regardless of whose website you

3 are going to, the contractor, the distributor,

4 that they are all getting the exact same message

5 from the same source. So, if there is anything

6 that can be done to support the notion that has

7 already been floated, that would be extremely

8 helpful.

9 MR. RAWALD: No, I get that. So, my

10 next question is how much oversight of the

11 content does this group want to have or are you

12 going to trust the Department to effectively

13 deliver the message in a way that is going to be

14 understood by the people that we want to receive

15 it?

16 MR. HURST: John Hurst from Lennox. 

17 I will speak for myself and I think my compadres

18 would be agree that we would want some oversight,

19 not from the standpoint of a lack of trust but

20 more to ensure that the message is delivered in a

21 manner that we break it down where it is very

22 easy to understand.
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1 And so if there is any confusion with

2 the language, we can help.

3 MR. RAWALD: No, I understand that

4 exactly, John because regulations are the

5 government's best example of how confusing we can

6 be. Right?

7 MR. HURST: Right.

8 (Laughter.)

9 MR. RAWALD: So, I understand that

10 that would be helpful for people are more in tune

11 with the obvious readers to be able to receive

12 it.

13 So, while the question I will ask of

14 the people I work with then is the willingness to

15 draft something up and then circulate it to this

16 group to kind of look at and see are our

17 comments. Here is where you can do better.

18 I don't think they would be adverse to

19 that but I want to make sure that everyone is in

20 line with that before I commit to that.

21 MR. HURST: Yes, Doug, I think the

22 other thing that would be very helpful is
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1 oftentimes we will read the regulation and we

2 will interpret it. It would be extremely helpful

3 if, and we would be willing to help, to come up

4 with examples of okay, so I think there was one

5 part that you read out a couple of meetings ago,

6 Part 1 with Part A and then 1 plus B. It was a

7 little confusing but it was an example that was a

8 real life example that you could actually take

9 and run with. Those are extremely helpful,

10 versus here is the reg. I hope you can figure it

11 out. Examples work great.

12 MR. RAWALD: I appreciate that, John. 

13 I will let the people know who wrote the guidance

14 how you feel about the examples they provided. I

15 get that and we will definitely work with you

16 guys with that.

17 I just wanted to make sure everyone

18 else was onboard before I commit to that but I

19 think that is very reasonable.

20 MR. SACHS: Doug, this is Harvey. I

21 want to strongly endorse giving this group some

22 days to mark up the drafts. I think there is
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1 wisdom in this crowd that you all are obligated

2 to use so it doesn't come back to us.

3 MR. RAWALD: Harvey, I would say

4 nothing different about this group.

5 MS. NOLL: Doug, this is Elizabeth. 

6 Would it be helpful if this group develops an

7 outline or at least a list of what needs to be

8 included?

9 MR. RAWALD: That would always be

10 helpful, yes, of must have items.

11 MS. NOLL: There are a lot of people

12 shaking their head no on that comment, though.

13 MR. PORTER: Steve Porter, Johnstone

14 Supply. I think it is easier for one person to

15 write it and then we pass it around it and kind

16 of footnote to it and then beat it up.

17 MS. NOLL: Maybe I misspoke, then. In

18 terms of what we are doing here like at a minimum

19 material will include and a list of it has to

20 explain, it has to address the sell through. It

21 has to address, as opposed to leaving it all to

22 the Department. And I guess we are saying now
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1 that we will have time to review any materials.

2 But in terms of what we are developing

3 here, that is more of what I was focusing on.

4 MR. PORTER: Yes, I don't know. I

5 guess I will wait for other comment. For me, I

6 know in my role it is easier to take a document

7 that, I mean you are better at taking all the

8 other rules and regs that I may not even be

9 thinking about and have it in there.

10 I know pieces I will want when I see

11 the document. So, I wouldn't know all of what

12 Doug needs to have in there, I guess. I guess I

13 would rather start with the Department of Energy

14 starting it and then adding to it or recommending

15 some change in language that is less confusing.

16 I have already offered to write and I

17 want to just remind about the 18-month sell

18 through and the confusion that is likely to be

19 around on that when we start right out with the

20 regional standards, particularly the homeowner,

21 the contractor, that there is going to be --

22 since it is not very clean right now going
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1 forward and it won't really become clean until

2 '16.

3 MR. EISNER: Elizabeth, I think Doug

4 was talking about that between meetings he is

5 going to develop an outline of some sort of what

6 it would look like, which will probably be

7 something that might be inserted in the preamble. 

8 And it sounds like that is what you want. You

9 will have an opportunity to hear about that.

10 MR. RAWALD: Yes, and I think what

11 might be helpful would be, and this is Doug, so

12 in the interim here, if people have a burning

13 notion, hey, I really want this thing in there,

14 email me, because we are allowed to do that. We

15 can communicate over email together and say Doug,

16 I think you should actually, this is in there, or

17 this might be a nice way to say that, just as you

18 are thinking about it. And I will certainly take

19 such feedback and incorporate it into what we are

20 doing.

21 And I will try to work with folks to

22 see what kind of thing we can put together in two
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1 weeks to bring it back to the table for people to

2 look at and say this is kind of where we are.

3 My hope would be that this would not

4 be something that we would put in the regulation

5 but that it is going to be in a preamble

6 discussion that DOE has agreed to and take a part

7 in this campaign, which is going to involve this

8 and the group has seen it and they have comfort

9 in what DOE is going to go ahead and say to

10 people about what we are doing. I think that is

11 probably the approach I would recommend from a

12 rulemaking point of view.

13 But I will get folks working on this,

14 understanding they have jobs to do, too, but we

15 will focus on this and try to get something to

16 you guys next time we meet.

17 MR. EISNER: Okay, anything else on

18 the label?

19 MR. BALLO: This is Tim with

20 Earthjustice. I have another issue to raise

21 here. There is the issue of the online sales. 

22 Currently, under FTC regs, anyone offering a
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1 central air conditioning unit online for purchase

2 must show the EnergyGuide label on that web page. 

3 I don't know if we want to maybe think

4 about adding an additional requirement to maybe

5 link to the DOE website or some additional

6 statement about what the consequences are of

7 purchasing and installing this unit outside of

8 the region for which it is legal for

9 installation.

10 MR. RAWALD: Right. So, Tim this is

11 Doug. So, that goes with the information

12 disclosure, I think, which has traditionally been

13 part of the FTC world.

14 So, let me talk to Hampton about that

15 and see what he thinks and then get back to you

16 guys. I think it is a valid notion, I just want

17 to make sure that is something that they are

18 supportive of.

19 MR. McCRUDDEN: This is Charlie with

20 ACCA. Doug, you said something earlier that kind

21 of intrigued me. And that was, you know, how do

22 we go after these internet sales and sort of
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1 insert yourselves or sort of get in-between or

2 somehow in that decision change for the

3 homeowner. And I was, on my iPad, I tried to go

4 onto eBay but the DOE server blocked me.

5 But and I don't know the technology

6 here very well. I know certain buzz words. But

7 is there a way that DOE could put banner ads, and

8 this may be way out there, so that if someone

9 does go to eBay and types in certain key words,

10 something pops up. And maybe it is a warning. 

11 Maybe it is an alert. Maybe it is just a --

12 MR. RAWALD: Right. So, you are

13 asking the question of if we could, if a consumer

14 went to a commercial site not controlled by the

15 government, could the government insert a banner

16 that would appear.

17 MR. McCRUDDEN: We do it.

18 MR. RAWALD: Right. So, I will look

19 at the legality of that question. I would guess

20 that that is going to be a big no.

21 MR. McCRUDDEN: Okay.

22 MR. RAWALD: But I will ask the
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1 question at your request.

2 MR. McCRUDDEN: And I try not to put

3 out crazy ideas that just pop in my head but that

4 did.

5 MR. RAWALD: We support crazy ideas

6 here. Didn't you hear John Hurst mention a

7 bioluminescence on the condensing unit earlier?

8 MR. HURST: That is an idea ahead of

9 its time.

10 (Laughter.)

11 MR. EISNER: Anything else on labels?

12 MR. RAWALD: That was public outreach.

13 MR. EISNER: Well, I was going to ask

14 if anybody wanted to take a break. We did break

15 earlier in the meeting but it has been an hour

16 and a half or so. Do you want to break? 

17 Take ten minutes.

18 (Whereupon, the above-entitled matter

19 went off the record at 10:55 a.m. and resumed at

20 11:06 a.m.)

21 MR. EISNER: All right, Harvey you

22 wanted to raise an issue about progress and where
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1 we are going?

2 MR. SACHS: Yes. I just wanted to get

3 a better sense, a refresher on what we are doing

4 the rest of the day.

5 MR. EISNER: Unless we want to do it

6 differently, I just thought we would continue

7 going through the list. The next thing we have

8 is the second part of communications, the D part

9 -- excuse me, the second part of number one under

10 communications and just keep going through it the

11 rest of the day. We seem to be making good

12 progress in not letting people go at the end of

13 the day.

14 That was supposed to be a joke, guys.

15 (Laughter.)

16 MR. EISNER: So, everybody happy with

17 continuing like that? We do have to talk at the

18 end of the day about whether we need that meeting

19 in October. We decided to put it off until this

20 week.

21 MR. BALLO: This is Tim. The only

22 think I would suggest is there anything that we
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1 could think of where we have a long way off

2 coming up where folks, issues that people will

3 need to go back to their constituencies and talk

4 more in-depth about, those should be teed up

5 before the end of today.

6 MR. EISNER: That is a good point.

7 MR. RAWALD: So, this is Doug. And I

8 think I made it clear earlier today that we are

9 going to take back the prohibited acts. So, if

10 there is any sharpening or thought after last

11 night's discussion, people want to do that, we

12 should definitely have that before we leave today

13 so that I can have that as a complete package to

14 bring to the folks that I work for to look at.

15 MR. AMRANE: Along those lines, this

16 is Karim with AHRI, it would be good to have a

17 list of action items at the end of the day or, I

18 don't know, tomorrow or whatever. I mean so a

19 list of what we have to do by when we get back in

20 three weeks.

21 MR. RAWALD: No, that is a fair

22 request, Karim.
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1 MR. HURST: Neil, this is John Hurst

2 from Lennox. I would also suggest maybe making

3 the determination on that October meeting either

4 right after lunch or after the first break. I

5 know some of us have flights, myself included. 

6 And I think we will be fresher right after lunch,

7 versus at the very end of the day when some of us

8 are either tired or not here.

9 MR. EISNER: Is everybody agreeable to

10 that? All right.

11 MR. SACHS: I sure would like to have

12 our consensus list of prohibited acts in hand, as

13 I am sharing information with the people behind

14 us.

15 MR. RAWALD: So, do you want to tee

16 that up for after lunch, just go straight into

17 that, and then try to bang out some of the other

18 things before then, between now and lunch?

19 MR. SACHS: Your discretion on the

20 sequence. I just want to make sure I have it.

21 MR. RAWALD: Okay. That way, it will

22 give lunchtime for everyone to kind of think
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1 about the prohibited acts a little more so they

2 can come back and be really thoughtful about it.

3 MR. SACHS: Then you had better

4 distribute them before.

5 MR. RAWALD: So, oh, you mean in

6 writing?

7 MR. SACHS: Yes.

8 MR. RAWALD: Okay, so we did get an

9 email out to everyone last night.

10 MR. EISNER: I think it was in this

11 document.

12 MR. SACHS: Oh, I'm sorry. In reading

13 materials?

14 MR. RAWALD: Yes, so everyone has

15 them.

16 MR. SACHS: Thank you.

17 MR. EISNER: All right. Go ahead.

18 MR. RAWALD: I was going to say I

19 think that for 1B, there is not really a whole

20 lot more to say. The manufacturers and everyone

21 said they are committed to this and that we can

22 develop some preamble language or not, just
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1 basically saying hey, we are going to go ahead

2 and make sure we tell people things and they want

3 to link to our sight. I don't think there is a

4 whole lot more to be said on that particular

5 point there at 1B.

6 MR. EISNER: You are talking about B?

7 MR. RAWALD: Yes.

8 MR. EISNER: Okay, everybody agree we

9 are done with that?

10 Okay, DOE database, contractors,

11 dealers, distributors.

12 MR. RAWALD: Okay, so there was at

13 least some people that are still interested in

14 this topic when we last met, although the

15 contractors themselves were least interested in

16 it. I asked the question at DOE, we have the

17 resources and abilities to do this. It wouldn't

18 be overly complex in that we would use our system 

19 we already have in place for tracking

20 certification of compliance of products to have

21 some sort of data place to put certification of

22 compliance by those who are installing or
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1 contractors who are going to do this.

2 So, what it would be, though, just so

3 everyone understands, it would be based upon the

4 entity, the contractor self-certifying they are

5 going to comply. I mean this is not going to be

6 a robust program where I am going to be auditing

7 their certifications. That is not the way we do

8 business. So, it is based upon self9 certification, though I would be following up on

10 them on occasion. It is just not going to be

11 based upon some sort of entry program, where you

12 have to give me a thing and I look at every

13 single entry.

14 So, when we are talking about possibly

15 over 100,000 people on the list, we are going to

16 be auditing on a more targeted basis, rather than

17 reviewing every applicant and saying yes, they

18 are someone that we agree with are compliant.

19 So, the list will, of course, not

20 always have a current reflection of who is in

21 operation because somebody may not notify me and

22 they may go out of business, so I will have to
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1 find that out over time. So, there are kind of

2 layers to how real-time the information will be. 

3 It will always be no realer than two weeks

4 because we don't offer a real-time database like

5 AHRI does. There will always be some update on a

6 biweekly basis at most.

7 So, those are the kind of technical

8 limitations we will have to it. But we have the

9 capacity and the ability to do it if folks are

10 interested in doing it.

11 MR. ROCKY: Bryan Rocky, JCI. So, I

12 have been thinking about this not from my

13 standpoint as a manufacturer but more from Steve

14 as a distributor, the HARDI guys, leaning towards

15 the contractor. And I have not fleshed this idea

16 out but the idea to potentially have a document

17 drafted by the Department that would be a point

18 of sale notification that a distributor or a

19 manufacturer that sells to contractors could

20 provide to the contractor when they buy a piece

21 of equipment, at least the first time. 

22 Here is the law, explain it to them;
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1 here is your responsibility as a contractor; here

2 is what we are doing. That is given to the

3 contractor when the pick up equipment at least

4 once, gives them some sort of document that could

5 be maintained by distribution points or by

6 manufacturer branches as part of this document

7 trail.

8 So, we talked about a consumer piece,

9 a contractor piece and other things. So, I am

10 wondering if a point of sale, one page or one

11 page front and back, Mr. Contractor, here is the

12 law. Here is your responsibilities. You

13 acknowledge that you are going to abide by these

14 and it is something that could be signed, given

15 back to our distribution partners or our branches

16 and just kept on file. Having a contractor sign

17 it, and again, Chuck and Charlie will have to

18 weigh in on this as well. You don't want to

19 create a lot of burden. You don't want to do

20 this every time you sell a piece of equipment to

21 a given contractor, but is that an option for

22 consideration?
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1 MR. PORTER: This is Steve Porter,

2 Johnstone Supply. I would not be interested in

3 that process whatsoever. Primarily, that is no

4 different than us starting to keep warranty on

5 every piece of equipment or another process or

6 record keeping. What am I supposed to do with

7 those records? Are they supposed to be checked

8 very time that person shows up, so, I got to go

9 over and find that piece of paper? I'm not

10 interested in anything that creates another piece

11 of paper to handle or process, especially if when

12 we are going to do trifolds and we will have

13 those available and all the other education

14 issues and record keeping we are going to get.

15 We also have contractors that the

16 person that shows up to get the equipment is not

17 the service person, not the person installing it. 

18 That person may never come in the store. I think

19 there is confusion that that owner entity or the

20 contractor always comes in the store. In many

21 cases, in larger companies, we never see those

22 entities. It is the technician that rolls in or
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1 a purchasing person or a parts runner or just

2 somebody delivering equipment. 

3 So, I think this just adds a lot of

4 confusion to what we are going to do. I think

5 the communication pieces and the trifolds that

6 are there will be available and on the counter,

7 they will be able to hand out, which would be

8 just as good a communication vehicle as any and

9 all the other communication pieces. I am not

10 looking to processing paper or handling that kind

11 of paper. It is expensive.

12 MR. McCRUDDEN: This is Charlie with

13 ACCA. I think this is one of those issues where

14 we are so limited because we don't know how many

15 contractors are out there. And so it is what

16 won't be on that, this self-certification

17 registry.

18 And I think we have heard this

19 argument several times which is, well, the

20 noncompliant contractor is always going to be

21 noncompliant and here is just one more way they

22 will be noncompliant. Meanwhile, the compliant
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1 contractor has to go through and register. And

2 that is likely to be, the registry is probably

3 going to be a simple process but is it creating

4 one thing without resolving what the real problem

5 here is, which is the bad actors who will be out

6 there and continuing to be bad actors.

7 And I think in terms of what Steve

8 just mentioned, he is right, there is a lot of

9 contractors who don't -- there is a lot of

10 installers, the individual who installs who never

11 goes into the shop, sometimes it is pickup

12 person, it is a delivery person.

13 So, I don't think this is going to

14 capture the people we want to capture.

15 MR. EISNER: Others?

16 MR. WHITE: This is Chuck White. I

17 don't think I have to tell you what I think of

18 it.

19 (Laughter.)

20 MR. WHITE: I think I have expressed

21 my opinion before. But it is naive to think that

22 this is going to stop sales. It is not. People
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1 are going to come. Somebody is going to forget. 

2 In short order, it is going to go by the way

3 side. It is going to be a lot of work for DOE to

4 track. It is going to be a lot of for Steve and

5 his folks to track. We are just going to fill

6 out a piece of paper and keep it on file. How

7 many file cabinets have you got, Steve? You have

8 got a lot.

9 It is work. And I don't see that the

10 bad actor is going to do this. And even if he

11 does do it, we still don't know what jobs he

12 does. You are making a list of us in the

13 industry. I guess from a personal liability or

14 liberties perspective, I sort of resent that. 

15 But the proof is what is the work that I do. And

16 you want to make a list of me just in case. 

17 MR. PORTER: This is Steve Porter,

18 Johnstone Supply. You know you look at it from a

19 contractor's side. Is he supposed to have that

20 paper on file every time he needs a piece of

21 equipment anywhere in town at 16 different

22 wholesalers? I mean even that they are going to
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1 check and verify or look or go through this

2 process, it just doesn't make any sense to me.

3 MR. WHITE: This is Chuck White again. 

4 I am EPA 608 certified. I haven't had anybody

5 ask me to see that card probably since the day I

6 got it. And nobody goes and looks in their data

7 base to see if I am on the list. They know who I

8 am. I've been coming in there forever. It is

9 not going to happen. End of my rant.

10 MR. SACHS: I agree but I do want to

11 point out that I am agreeing from the standpoint

12 of being an International Ground Source Heat Pump

13 Association certified ground loop installer.

14 MS. SHEPHERD: This is Amy Shepherd

15 from AHRI and I think that I guess my concern

16 would be how effective this database would be,

17 unless it was really robust. Because if it is

18 something that the Department just doesn't have

19 the priority for or resources for, which is

20 totally understandable, on a real-time basis for

21 this many people, where there is no other way of

22 tracking them, you are just going to have a data
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1 base that is full of garbage and not useful

2 information. And then relying -- sorry. I take

3 back garbage. 

4 You are going to have a database full

5 of not useful information and then I think you

6 get into the situation where it might even be

7 worse to start trying to rely on that, as part of

8 an effective enforcement process when you are

9 relying on data that you can't really trust.

10 MR. MELCHI: Jon Melchi with HARDI. 

11 I brought this up to some of my members and one

12 of the scenarios that was sent to me was that

13 scenario where somebody who works for Chuck's

14 company decides he is ready to strike out on his

15 own and tells Chuck, you know, hey, I am going to

16 be starting my own thing, registers with the DOE,

17 goes to the distributor, but the website hasn't

18 been uploaded. Therefore, my members aren't able

19 to sell this new contractor, this new small

20 business entity product. And maybe it is not

21 updated for a couple of weeks, a couple people go

22 on vacation. That guy is kind of in no man's
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1 land. I don't know how frequently that would

2 happen. That was just a scenario that was

3 brought to me by some distributors.

4 MR. EISNER: So, is anybody advocating

5 for this thing? Is there agreement on that?

6 Okay, that brings us up to training to

7 contractors/distributors in compliance with

8 regional standards.

9 MR. DORIA: This is Jordan, Ingersoll

10 Rand. And one thing I have been thinking about

11 here, I think this is when we had some of the

12 discussion about the different things that we, as

13 OEMs could do with our distributors, whether they

14 are truly ours or just those that we work with,

15 sort of in conjunction with things that we

16 already do.

17 I think that there is a lot that we

18 could ultimately offer there. Again, because it

19 is in conjunction with the kinds of training that

20 we would already be providing.

21 My view, in terms of whether or not it

22 should be incorporated into the regulation with
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1 any level of specificity, I am inclined to find

2 some kind of other mechanism which we, as

3 manufacturers, at least, could commit to this. I

4 am thinking some kind of MOU or something like

5 that where we all say that we are going to do the

6 following. And then I think that gets to the

7 idea of an enforcement plan but it would be

8 outside of the regulation, perhaps with the

9 exception of the regulation ultimately saying

10 that the OEMs potentially have agreed to jointly

11 or have agreed to -- something that will be

12 specified in another document, essentially.

13 MS. MEYERS: This is Karen with Rheem. 

14 How is this different from the public outreach

15 webinars, website, information that we talked

16 about earlier?

17 MR. RAWALD: This is Doug. It is my

18 opinion that it is not really. This is all

19 wrapped into the same thing and I think that is

20 going to basically be preambulatory discussion as

21 far as it sounds like of people's willingness to

22 engage in this but without any actual regulatory
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1 language requiring it or any sort of sanction for

2 not doing it.

3 MR. EISNER: So, do you envision this

4 as something that could just be in the preamble

5 when you discuss the outreach?

6 MR. RAWALD: From listening to folks

7 around the table, that seems to be the way to go,

8 is that people are saying hey, we are going to

9 commit to it and we will say that the working

10 group has come together and manufacturers have

11 agreed they are going to go and provide this

12 training to people as needed over time but

13 without further detail or any actual regulation

14 requiring it.

15 MS. NOLL: This is Elizabeth. I would

16 only offer the point that was made about

17 consistency of message. Do we divert from that

18 or would there still be a consistent message in

19 that process?

20 MR. ROCKY: This is Bryan. I think,

21 Elizabeth, that gets covered by the basis of this

22 will be the guidance documents and then the final
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1 enforcement rule as published. So, that will lay

2 out for manufacturers some of the key things that

3 we are going to have to discuss through the

4 chain.

5 MR. SACHS: This is Harvey with a

6 question that I hope Doug can answer.

7 Let's assume that I am a distributor

8 or a manufacturer and I don't offer training to

9 my customers. Is that information that you would

10 use in trying to help establish that someone is a

11 habitual violator?

12 I mean does it have use to you to know

13 that somebody is not offering the training?

14 MR. RAWALD: Right, I hear what you

15 are saying because I think this relates back to a

16 point you made before that somebody who is not

17 willing to participate may be someone who is more

18 likely to be plodding along, or at least maybe as

19 an indication.

20 So, I haven't thought about it in that

21 concept of this particular training. I don't

22 know off hand. I would really like to think
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1 about it a little bit more because I think it

2 could be indicative but it could be also

3 someone's say of saying hey, I didn't know. So,

4 they want to build in some sort of way of saying

5 I don't know the rules. I didn't have the

6 training. So, I want to think about that a

7 little more.

8 MR. SACHS: Because if it is

9 indicative, that again becomes part of this self10 enforcing fabric. That is why it matters.

11 MR. EISNER: Any other thoughts on

12 this particular point?

13 MR. McCRUDDEN: This is Charlie with

14 ACCA. I think that sort of a standardized

15 training that is going to be part of the public

16 outreach campaign on sort of just in general what

17 are the rules, looking at the rules as they apply

18 nationally, will then get changed in terms of

19 message to the audience at the contractor level

20 or the distributor level, which is going to be

21 the training for a contractor in Michigan is

22 going to be pretty easy because nothing is
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1 changing for that person.

2 But the training for a contractor in

3 New Mexico versus the training for a contractor

4 in Texas is going to be very different because it

5 is going to be about the EER value and the size

6 variation, versus simply just a SEER value.

7 So, I don't know. And I think if you

8 are going to hang your shingle out as a

9 contractor, you are going to train your

10 employees. Now, whether or not you should prove

11 you did that, I don't know if that is necessary. 

12 And if you are looking at distributors, well, did

13 the distributors train their potential customers? 

14 I mean, I think you will. I think our

15 contractors will. And I think is sort of -- this

16 falls, I think, also under the good ones are

17 going to do it. The bad ones may just ignore it.

18 But because it becomes so specialized,

19 I don't know if we can put a requirement on it

20 because you look at what does the training look

21 like? Does it meet a standard and do you want to

22 go down that road?
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1 MR. EISNER: It sounded like what

2 Harvey was saying was it wouldn't be a standard

3 for the training. It would be a factor for the

4 agency to consider they could balance the kinds

5 of concerns are you are talking about.

6 MR. McCRUDDEN: This is Charlie again. 

7 And then you go back to though, so if Doug is

8 evaluating factors, how does the contractor

9 prove? He could say yes, we scheduled a toolbox

10 talk one Monday morning before the crews all went

11 out and I had this PowerPoint. Or I walked

12 through, I had them all review the DOE webinar

13 but I mean if he did that but then didn't record

14 that he did that, how does he prove that?

15 MR. PORTER: This is Steve Porter,

16 Johnstone Supply.

17 Yes, I think that industry/contractor

18 piece is the easy piece. I mean the hard part is

19 the homeowner piece which you have got, Doug, it

20 really is the hard part to do on this.

21 You can look at distributors and

22 contractors and the training that went on over
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1 the phase out of R-22 to see what the industry

2 does. I mean I can't tell you how many thousands

3 of those that we held as a single entity to make

4 sure that everybody was aware. And I can promise

5 you right now, probably in that first year, is

6 our company alone would probably put out over a

7 million pieces on the subject. So, that is north

8 and south because we are going to put out mailers

9 and we are not going to discriminate who they go

10 to. So, they are going to be very aware.

11 Even though the north may not need it

12 in Michigan but we also have contractors we

13 talked about the other day that leave Michigan

14 and go south. We also talked we are going to

15 have all those border states that will need to be

16 educated just as if they were in the south.

17 So I mean we are really not going to

18 discriminate on the message. We will, probably,

19 tend to go over the top on regions. And

20 contractors are not, most of them, even though

21 they are not in that part of the country, they

22 are interested to hear what is going on and then
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1 they are going to be interested in the

2 regulations.

3 So, I think it is not a totally

4 complicated thing to explain. I don't think it

5 will be hard to deliver. I think the industry

6 has proven with all the regulations coming from

7 both the EPA or the DOE or over the years that

8 they get the message out.

9 MR. EISNER: Any more comments? Does

10 everybody agree this should just be informal or

11 do people still want to have something a little

12 more firm for the agency to rely on?

13 MR. WHITE: Well, this is Chuck White. 

14 I just wanted to throw this out that I think the

15 industry that is around here has committed to

16 really stepping up and trying to do the best we

17 can at informing every piece of the pie that we

18 can to help Doug out. And I am not trying to --

19 I am just saying that this has happened in the

20 past. 

21 I went to a training session of 410A,

22 way back when 410 was kind of coming out, by a
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1 manufacturer in the room. And I still have their

2 certificate of completion of the training hanging

3 on the wall in a frame because we never take

4 anything off the wall.

5 (Laughter.)

6 MR. WHITE: But certainly that is a

7 possibility that people will hand out

8 documentation. There is also the possibility

9 there is a lot of NATE training technicians out

10 there and they all need CEUs and this would all

11 kind of mesh with that. So, there is

12 possibilities that there will just -- not saying

13 we will be required but possibilities that these

14 kinds of documents will just kind of naturally

15 evolve with it.

16 That doesn't help you if you come ask

17 somebody were you trained and they don't want to

18 admit they were trained, so they take the

19 certificate off the wall and you see a nice clean

20 spot where it used to be. But I think there is

21 probably some voluntary documentation that will

22 be available for some of the stuff that will help
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1 people demonstrate their knowledge.

2 MR. EISNER: Other comments? Is there

3 any disagreement with the idea that it would be

4 essentially a voluntary requirement, so to speak? 

5 You don't have to do it.

6 MR. SACHS: This is Harvey. Again,

7 Neil, it is not a question of disagreement. It

8 is a question of seeking better, more

9 clarification on the extent to which the

10 Department can use training offerings and

11 training uptake as a factor in its consideration.

12 MR. EISNER: Yes, that is what I

13 meant, I'm sorry, by a requirement on this. DOE

14 can consider it. Do people want some provision

15 like that in there? We don't seem to have

16 consensus but I'm not sure.

17 MR. LATTANZI: This is Matt Lattanzi

18 with NORDYNE. I would agree it doesn't need to

19 be in the regulation for a couple of reasons.

20 One, as manufacturers, I think we have

21 been sending this message, literally, since the

22 consensus agreement was agreed upon and we are
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1 going to continue to do that if we have to.

2 And in my mind, it has sort of become,

3 this is a bad analogy but it is the only one I

4 can think of, it is almost like a de facto

5 requirement. The market expects it. Our

6 customers expect it, distributors, contractors,

7 they expect this education and we provide it.

8 Analogous to almost like the ENERGY

9 STAR program, I mean that is an optional program. 

10 We are not mandated by the EPA to participate in

11 it but we all do because it is a market

12 expectation. Not a good analogy, I realize that. 

13 But you get my point.

14 So, this is going to march on and

15 continue on just like it has since the beginning

16 of the consensus agreement.

17 MR. EISNER: I understand that. I

18 think the point that Harvey was making was they

19 don't want to necessarily require that the

20 training be done but when there is a question as

21 to whether you used someone who was a routine

22 violator, whether the agency can consider whether
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1 you had done the training that could have avoided

2 that problem.

3 Is that a fair way to express that,

4 Harvey? It is just the fine print that would be

5 listed in the things that the Agency would

6 consider in determining routine violation.

7 MR. PORTER: Steve Porter, Johnstone

8 Supply. So, would you be able to see which

9 contractor, all sales, maybe use the link,

10 recommend the link, log in, look at your site? I

11 don't know. I mean how are you going to go out

12 and enforce? How would you enforce this? Is

13 this going to start another enforcement hearing

14 on training? Just a question.

15 MR. SACHS: This is Harvey. And it

16 may be that my thinking is a little fuzzy but I

17 really wasn't trying to constrain it or enumerate

18 provisions but simply trying to look at this as a

19 factor the department could consider as it is

20 looking to differentiate good buys from bad guys.

21 Steve offers training. He has had a

22 large fraction of his customers take that
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1 training. He carried it out to his customer

2 sites for tool box talks. Whatever it is, helps

3 demonstrate that Steve is not a rogue.

4 And I certainly don't feel, at this

5 point, any need to get into specifics of what

6 information you would want to show or even be

7 asked for. I don't think that would be helpful,

8 if it is part of this sort of factors type thing. 

9 And again, I can't answer the question of what

10 happens in five years, a different administration

11 has different people pulling the strings or

12 cracking the whips but that is where I am.

13 MR. McCRUDDEN: So this is Charlie

14 with ACCA and I guess I will turn to you, Doug. 

15 I mean does your policy statements or do you have

16 a list of factors or do you line up the factors

17 or outline them right now?

18 MR. RAWALD: So, this is Doug. So, I

19 assume you are talking about our policy guidance

20 or policy regarding civil penalty and the scope

21 of that.

22 So, we do outline factors, though, of
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1 course as any good lawyer will tell you, we also

2 had it for any other factors they feel relevant. 

3 And I think that this could be a relevant fact in

4 assessing a civil penalty possibly. But I think

5 that we are really trying to go out and talk

6 about as far as is it additional evidence of

7 somebody who is noncompliant with the standard,

8 you know the fact that they didn't do any

9 training and they are not taking part in any

10 training. So, that is a question.

11 And I think that if I were to make a

12 case before a judge, because that is how I look

13 at these kind of things, on saying hey, here is

14 why I think this person is someone who violated

15 this and should, therefore, pay a penalty or

16 something like that, it is conceivable it could

17 be some sort of evidence but I don't think it

18 needs to be in any way regulated. It just needs

19 to be something I would once again bring up and

20 say here we have it, Your Honor, we know that he

21 never did any training. So, could that be a

22 factor to think about?
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1 I haven't really thought about how

2 that would play out or how important that would

3 be to me in doing that. And I am just trying to

4 think about that because Harvey put it forward.

5 But I think I would use it the same

6 way, regardless of whether there was a regulatory

7 requirement of some sort that manufacturers do

8 this or not. And we don't have any other

9 analogous provision in our regulations right now

10 requiring people to provide training. And I

11 would be hard-pressed to say that we would be

12 able to do anything to someone who failed to

13 provide such training or attend such training on

14 itself.

15 And so I don't want to create

16 provisions that we couldn't follow up on if they

17 weren't fallout. And so that is kind of my

18 concern.

19 So, I like the idea of us putting out

20 there that as a group we have agreed to do it but

21 I don't necessarily see the need for it to be a

22 regulatory text that would be in the CFR. That
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1 is kind of where I am thinking right now about

2 it.

3 MR. GIBBONS: Yes, this is John from

4 Carrier Corporation. I think as Bryan and Matt

5 have both stipulated, I think manufacturers, we

6 all have an obligation to do it, whether it is in

7 writing or not because we want to eliminate

8 confusion.

9 You know I speak for our company. We

10 are going to require our distributors to sign off

11 on a webinar that they attended and they paid

12 attention and blah, blah, blah, just because we

13 got a thousand lawyers who need something to do.

14 But we also have to train our customer

15 service people so when they answer a call from

16 our distributors that they know, wait a minute,

17 Steve is in Texas and he is asking for all these

18 13 SEER units. They need to raise the flag and

19 say should we be shipping these in there?

20 In addition, we have got a consumer

21 relations department. It is a 20-some person

22 department that is busy all the time and answers
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1 all kinds of questions from not only consumers

2 but from distributors -- well sometimes

3 distributors but mostly a lot of times

4 contractors. So, it behooves us to be out in

5 front of it and educate internally as well as

6 externally.

7 So, I think it needs to be informal. 

8 We want to eliminate confusion because I

9 certainly don't want to have to answer calls all

10 day and night either.

11 MS. NOLL: This is Elizabeth. I think

12 listening to the conversation I would generally

13 agree that maybe take it back and think about it

14 a little bit more but that the training be

15 informal. But I would think that the uniformity

16 might be important so that its manufacturers can,

17 at their discretion to deliver training and offer

18 training but that maybe the Department take on

19 putting together the training module and adding

20 that to the website. And the manufacturers can

21 add to it as they see fit but that there maybe be

22 a baseline kind of going back to that consistent
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1 message.

2 But I think in terms of the informal

3 nature of what a manufacturer or a distributor

4 offers, it seems reasonable.

5 MR. EISNER: Why don't we put the

6 decisionmaking on this off until Doug thinks

7 about it a little bit more and lets us know what

8 his thoughts are?

9 MR. WHITE: This is Chuck White. I

10 guess I would like to not be a contractor for a

11 moment, sort of a contractor.

12 We are professionals in the industry. 

13 And in our discussion of knowing, you either know

14 it or you should have known it. And one of the

15 concepts in licensing, and I can't speak for

16 every state and every license that exists, but my

17 license requires me to stay abreast of current

18 trends in the industry, changes in the industry.

19 So, someone who is acting as a

20 contractor, as a professional industry, should

21 have known. And you should make effort to keep

22 up with this.
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1 Now, if you are a guy working out the

2 trunk of your car, and you are putting air

3 conditioners in or classing them for the

4 contractor, but are they truly a professional

5 contractor?

6 I think it is -- I don't know how you

7 make this a formal requirement but I think the

8 professionals in the industry are essentially

9 honor bound to do this. And as we make all the

10 information available at the wholesalers where

11 they are going to go pick up 95 percent of the

12 product, 98 percent of the product they are

13 dealing with, they are going to be bombarded with

14 it.

15 So, I think we have a lot of

16 opportunity and really people have to do it.

17 MR. RAWALD: So this is Doug. So, my

18 position on this is that it should not be a

19 regulatory requirement, that it should be in the

20 preamble, unless there is somebody else who

21 really wants it to be a regulatory requirement

22 and then I'll go back and to talk to folks about
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1 the issue Harvey raised.

2 So, there is nothing for me to think

3 about unless there are people here who want it to

4 be a regulatory requirement of some sort. And

5 so, I think there is some unclarity whether,

6 Harvey, you want it to be a regulatory

7 requirement. You are shaking your head no. So,

8 it sounds like nobody really wants it to be a

9 regulatory requirement as I am hearing. So, I

10 think we have consensus on this.

11 MR. EISNER: Well, what I am hearing

12 --

13 MR. SACHS: My question --

14 MR. EISNER: Go ahead, Harvey.

15 MR. SACHS: This is Harvey. My

16 question to you was whether the existence of

17 training programs was something that you could or

18 were likely to consider as a factor as you are

19 trying to trace out whether somebody was a

20 routine violator. I hope that I was clear that I

21 was not asking for that as a regulatory action.

22 MR. RAWALD: Okay.
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1 MR. EISNER: And you had said you

2 needed to think about whether or not this would

3 help you in terms of making a case --

4 MR. RAWALD: Right but I also further

5 said it wouldn't affect my analysis of whether it

6 should be in the regulation or in the preamble. 

7 I mean I could use it regardless. So, I don't

8 think I need to make a decision on that for the

9 purposes of this process because I think that

10 what I am saying is if we have in the preamble

11 language saying hey, everyone is going to go

12 ahead and do this, whether it happens or not, is

13 going to have the same impact to me, as well as

14 if it is regulatory language.

15 So, I don't think it affects my

16 opinion on adding it to the regulation. I think

17 that the best way to go is going to be having

18 this in some way be a preamble kind of discussion

19 of the fact that we all agree that this should be

20 done and it is going to be done.

21 MR. EISNER: And you are saying that

22 you would just like to resolve it now with a vote
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1 on what Harvey is suggesting? Or would you like

2 to think a little bit more about it?

3 Because I think Harvey was thinking 

4 this is the way I understand it, is just another

5 one of the preamble discussions on the kinds of

6 factors you would consider when you were making a

7 decision about routine violation.

8 So, I thought that is what you were

9 saying, just something -- wherever all the other

10 language was going to go about routine violation

11 factors.

12 MR. SACHS: This is Harvey. Thanks,

13 Neil. I really did, I hope, posed it as a

14 question. I was not thinking of whether it

15 should be in the preamble or not because I have

16 thought much about the preamble.

17 It really was purely trying to get a

18 better understanding.

19 MR. EISNER: So, should we resolve

20 this now with a vote? Does anybody want anything

21 in the preamble or in the reg text about training

22 and whether it can be factored into the
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1 decisionmaking on routine violations? Is anybody

2 in favor of that?

3 Okay, I assume that means everybody is

4 opposed.

5 MR. ROCKY: So, Neil, you put two

6 contradictory statements there. So, if we are

7 going to say are we in favor or opposed to

8 requiring it as part of the regulation that

9 training be considered mandatory, that is one

10 motion. And I would say we could vote on that.

11 The addition of text in the preamble

12 is up to the Department. And I think we have

13 already stated that we are in favor of something

14 there that we are already going to do. Two

15 different items.

16 MR. EISNER: I was not suggesting that

17 what I heard was that the rulemaking language

18 would say training is mandatory. The rulemaking

19 language, I thought some were suggesting should

20 say the factors that will be considered in

21 determining routine violation could include

22 whether you provided training, not that it is
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1 required but whether you did that is generally

2 considered good practice in the industry, for

3 example.

4 MR. DENNIS: Just to clarify, I think

5 that what Doug was saying is it can be, whether

6 or not you say it or not.

7 MR. EISNER: I understand that. He

8 can consider what he wants to consider. I am

9 asking whether there is any vote for it being

10 either in the real text that he can consider it

11 or that it be in the preamble that he consider

12 it.

13 If you don't want it in either, then

14 we will finish with this. Does anyone want it in

15 either one of those places?

16 MR. SACHS: I'm withdrawing if it is

17 two separate questions.

18 MR. EISNER: All right, what would you

19 propose then in terms of what you have been

20 asking about?

21 MR. SACHS: I do not favor its being

22 in regulation. I am open to it being in the
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1 preamble, if others think it is useful.

2 MR. EISNER: All right. Assuming no

3 one wants it in reg text, does anybody else think

4 it should be in the preamble or want to at least

5 talk about it more?

6 MR. RAWALD: I do. I think I have

7 voiced the opinion several times. I think it is

8 should be in the preamble that the group came

9 together, as part of the working group's

10 discussion we felt that there should be some sort

11 of provisional training and that should be what

12 we said about it.

13 As far as whether it is a factor in

14 considering what I would ultimately do, I think

15 that is not worthy of being in there. But I

16 think the question of provisional training should

17 be in there and that is my position on the issue.

18 MS. MEYERS: This is Karen with Rheem. 

19 I agree with that.

20 MR. EISNER: Others? Comments?

21 MR. LATTANZI: Yes, NORDYNE supports

22 putting it in the preamble.
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1 MR. EISNER: Does anybody oppose

2 putting in the preamble a discussion of the need

3 for training?

4 Okay, so I assume that is where we end

5 up on this one.

6 Okay, the next one is use of AHRI

7 database and certificates. And you said DOE/CCMS

8 database.

9 MR. RAWALD: Right. And the way we

10 left the last time was we felt there was

11 generally no need to require a provision of a

12 printout from the database or from the directory

13 to the consumer, based upon what we know with the

14 label and the requirement that 14(c) or (b), the

15 minimum efficiency of the pair that we have.

16 So, we left it as those would be tools

17 that I could use in my enforcement, of course,

18 but they don't need to be involved in the

19 regulations or the preamble at all. It is just

20 tools my disposal we are all aware of but there

21 is no reason to provide regulatory language

22 regarding the use of them or the provision of
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1 stuff from them.

2 MS. NOLL: This is Elizabeth. I would

3 also add that with the strides that we made on

4 the label and the commitment the manufacturers

5 are making, that I think that takes us a long way

6 from not needing these certificates anymore or

7 requiring them. So, thank you.

8 MR. EISNER: Others? Okay, so nobody

9 feels we have any need to require anything under

10 number four.

11 Okay, that takes us up to DOE

12 collection of information, suspected violations

13 and data. The first item was whistleblower.

14 MR. RAWALD: This is Doug. So, I have

15 a general sense from the folks that I have talked

16 with that we would be supportive of a 1-800

17 number, a web-based submission process, and also

18 the current email process that we have now for

19 that.

20 So, I think that it is a resource

21 issue that I will make sure that we can nail down

22 so I can guarantee that but I think we are
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1 committed to doing that, providing those options

2 for complaints to made to the Department about

3 violations of regional standards.

4 MR. EISNER: And this would be

5 something you would do via the preamble?

6 MR. RAWALD: Well, so the question of

7 whether we want to provide some sort of

8 information in the regulatory text about this

9 resource or not, I don't necessarily the need for

10 it but other folks may think it would be helpful

11 to be able to flip open the CFR and see the

12 information possibly. So, I haven't thought

13 through. So, I guess I want to hear from folks

14 if they felt that it would be helpful to have

15 that in the regulation as opposed to not.

16 MR. PORTER: This is Steve Porter,

17 Johnstone Supply. I just would include it in the

18 training that you did.

19 MR. RAWALD: Yes, absolutely. I think

20 that is a must have. Any training we would do

21 would incorporate this. And the web page that we

22 would have as a resource on this information
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1 would have links to the site to submit your

2 complaint. It would have the link to the email

3 address to submit your complaints, as well as the

4 phone number with the mailbox. And I could, of

5 course, guarantee if people left information on

6 the mailbox, we would follow up on those

7 complaints. Because we do, as long as they

8 provide contact information back.

9 MR. MELCHI: Jon Melchi with HARDI. 

10 Doug, just a quick question. How long are

11 whistleblower records kept by the Department

12 typically?

13 MR. RAWALD: And so we are using the

14 word whistleblower but there is some government

15 context to that term that this is really people

16 complaining about something. And so we keep

17 complaints about investigations we have ongoing

18 for a particular period of time but I don't know

19 how long.

20 So, once an investigation is closed,

21 we do keep our records. So at this point, I

22 can't tell you what the time period but we do
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1 maintain the record of the complaint with that.

2 Now, we encrypt it. We do all sorts

3 of things to make it protected so it is not

4 available. And if it was a FOIA request, we

5 would treat it properly. We don't want to -- we

6 want to make sure people who complain feel that

7 they have protections as a complainant, so they

8 don't have that.

9 I would view the protections that a

10 person in a regional standards context would have

11 would be the identical to those we provide people

12 who complain now in the course of our regular

13 enforcement efforts, which are we would not

14 reveal your name or information unless you wanted

15 us to do so. So, that is how we would handle it.

16 MR. GIBBONS: Doug, this is John with

17 Carrier. The 800 number that you referenced

18 earlier, that you asked us to consider putting on

19 the label, would that be the same number as this

20 hotline number or would it be just press 1 for

21 whistleblowing; press 2 for --

22 MR. RAWALD: No, it would be this
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1 exact same number. So, I think that if we

2 established a number that was the number to

3 complain about the regional standards issues, it

4 would be that number that we would say oh,

5 consider putting that on the label.

6 So, just because that would be the one

7 stop shop. The guy could see that the label is

8 there and says oh, call this number if it is

9 here.

10 MR. GIBBONS: That information or the

11 two-way conduit.

12 MR. RAWALD: Right. So what I am

13 envisioning, based upon your label is the guy

14 walks into the backyard to service the unit. He

15 looks at it and says oh, not for sale within the

16 southwest. Call this number if it is there. And

17 he picks up the phone and he calls that number

18 and says hi, I am standing in the backyard of Mr.

19 and Mrs. Smith's house. I see I have model

20 number XYZ, serial number XY43, and it shouldn't

21 be here. And then we get the information and we

22 respond. That is how I would see that taking
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1 place.

2 MR. LATTANZI: This is Matt with

3 NORDYNE. 1-800-BAD-SEER.

4 (Laughter.)

5 MR. WHITE: This is Chuck White. So,

6 the question of is this in the preamble or in the

7 regulation, I think depends largely on your item

8 A there. Is this something that is going to be

9 required of industry members? And if it is

10 required, then I think it is going to have to be

11 in the regulation. So, maybe we can talk about

12 that.

13 MR. RAWALD: Yes, Chuck, I absolutely

14 agree. If we are going to place a requirement on

15 people, it has to be in the regulation.

16 So, the sense I got from the last

17 meeting when we discussed this was that folks

18 didn't want this step to be a requirement. And I

19 would have to spend an awful lot of time then

20 trying to enforce failure to do that and that

21 would be another burden on us that I don't

22 necessarily want to absorb enforcing its failure
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1 to make complaints.

2 So, I think my preference would be not

3 to create such a requirement but I would like to

4 hear if anyone has a thought to the contrary.

5 MR. WHITE: This is Chuck White. I

6 support that.

7 MR. EISNER: And if it is not

8 required, would there still be an issue about

9 conflict of interest? Somebody raised the last

10 question that is up there.

11 MR. RAWALD: So, the conflict of

12 interest issue is, as I understood it, was

13 somebody who is dealing with someone, a

14 manufacturer who is dealing with -- this is

15 manufacturer specific, by the way, because of the

16 act as we had designed or the statute gives us. 

17 A manufacturer who is dealing with a distributor

18 or a dealer they know is to be in violation, are

19 they going to be restrained from reporting

20 because they are going to feel that they are

21 going to get in trouble, too? And so is there

22 some sort of way of creating some sort of safe
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1 harbor around that one, was the request of the

2 group before, some sort of consideration. 

3 And I don't have a resolution to that

4 because I think that that is going to be fact5 specific. So, if the person acted upon

6 knowledge, if you knew and at that point you 

7 stop dealing with them and tell us about them,

8 that is a different scenario than if you knew but

9 you kept dealing with them for a while and then

10 told us later. 

11 So, I think those are two different

12 factual scenarios that might be treated

13 differently. And so, I can't give a one-size14 fits-all answer to that.

15 MR. DORIA: This is Jordan with

16 Ingersoll Rand. I don't think we can really

17 effectively address this until we get a little

18 bit more clarity on both the prohibited acts and

19 more importantly who makes the determination on

20 violation and routine violations.

21 MR. RAWALD: Right. I'm with Jordan. 

22 I guess we have to roll that up with that other
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1 thing.

2 MR. EISNER: Any more comments? Does

3 everybody agree we need to hear more about how we

4 are going to define these other terms?

5 All right, let's go on. The next

6 issue is the tear off label mailed in by

7 manufacturers. Do we want to talk about this? 

8 Is that resolved?

9 MR. RAWALD: Right. And Gary

10 volunteered earlier when it came up that he is

11 willing to let that go now that we are at where

12 we are with the records retention.

13 MR. EISNER: Okay. Records retention

14 is the next issue for specified times, specified

15 manner.

16 MR. RAWALD: Right. And what I

17 suggested yesterday was that I would want to

18 draft something and pass it around to the

19 distributors and the contractors, since it is

20 going to affect them as a new direction and have

21 them look at it.

22 So, what I am committing to do is, in
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1 the interim, to put together something and have

2 Charlie, Chuck, and Steve take a look at it and

3 give their thoughts on it before we come back. 

4 And also come back with a firm kind of Department

5 perspective on how long it would be that we would

6 want records to be retained. 

7 So, understanding that our position

8 will be a number of years but I can't say how

9 many, what I am proposing to the Department will

10 be somewhere between three and five. So, that

11 seems to be the reasonable number to me. If

12 anybody has any other numbers that they want me

13 to present to the Department, I will listen to

14 that. That seems to be the area that I am

15 looking at.

16 MR. EISNER: Okay.

17 MR. SACHS: This is Harvey and I do

18 have an opinion on that. It will probably cause

19 me to be thrown out of the room but half the

20 expected life of an air conditioner would be more

21 than five years. So, more than five years would

22 be easily the repair versus replace. And I think
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1 that something in the range of eight to ten years

2 is actually worth thinking about because that

3 increases the likelihood that the thing is going

4 to have broken and going to have been repaired by

5 somebody who was not the original installer.

6 It is not an issue analogous to paying

7 your taxes. So, it is perspective and I will

8 turn around so you can throw your slings and

9 arrows and stones at me.

10 MR. RAWALD: Well, I am not going to

11 say anything negative because that is a very

12 valid point. So, if we are trying to opine that

13 the first time that thing is actually going to be

14 determined to be in the wrong place is by a

15 servicing person and it is not going to happen

16 within the first three to five years of the

17 unit, then that makes a lot of sense. And so, I

18 want to think about that some more and keep in

19 that mind when I advise people on what I think

20 about this matter.

21 MR. WHITE: This is Chuck White. Most

22 units get service sooner than eight years. 
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1 Condensers need cleaning. There is routine

2 maintenance that is done. It should be done

3 annually. Some do it every two years. But there

4 is opportunity for service, probably not on every

5 unit ever installed but contractors sell service

6 agreements to make sure people's equipment is in

7 tip top shape. 

8 So, it is not just when the thing dies

9 that it gets looked at.

10 MR. SACHS: This is Harvey. Your

11 point is very well taken. I am not only an

12 installer but I have a service contract on my own

13 unit. I have long had the feeling that I was in

14 a small minority in having that service contract

15 and the benefits of those reminders.

16 MR. WHITE: This is Chuck White. And

17 you are not in the minority. And many times

18 those service agreements are not the company that

19 installed it. There is lots of opportunity for

20 cross-marketing and people will try and move in

21 on other people's territory, if you will.

22 MR. SACHS: Again, point well taken. 
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1 The one development I would like to add. This is

2 Harvey that the other time of discovery is a real

3 estate transaction. That is, again, pushing

4 things out. Can I offer a hard number as my

5 insistence that record retention be required for

6 X years? No.

7 Am I comforted somewhat by the offer

8 the manufacturers made today, which may

9 facilitate doing some look back? Yes.

10 But I do want to say emphatically that

11 I don't look at this as being dictated by -- the

12 considerations that form the IRS opinion being

13 determinative for this.

14 MR. WHITE: This is Chuck White again. 

15 And I understand what you are saying but you have

16 got to realize that the bulk of the record

17 keeping is for tax purposes and we can't afford

18 to do tax bookkeeping and other bookkeeping.

19 My view of the tax thing is that is

20 the convenient thing that we, most of us are

21 going to be doing anyway. And most likely, most

22 contractors have records older than that because
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1 we don't -- you know, I said earlier we don't

2 take things off the wall until the file cabinet

3 is overflowing. Probably there is records older

4 than that.

5 But as a rule to write for what the

6 common practice of folks is, the tax look back

7 window is the 800 pound gorilla in the room. 

8 That is what people have to comply with. And

9 SEER 14 equipment is probably could be the

10 majority of someone's business but in most

11 businesses, it is only a percentage.

12 So, to create a record keeping

13 procedure for 20, 40, 50 percent of your business

14 when you have a tax accounting rule for 100

15 percent of your business, seems a little over the

16 top.

17 MR. BALLO: This is Tim with

18 Earthjustice and I don't have a very strong

19 opinion of a particular year but it strikes me

20 that what we are sort of doing is creating a

21 statute of limitations by this record keeping

22 requirement, in that if we are past that record
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1 keeping date, someone finds the unit out in the

2 field, there is not really going to be much

3 anyone can do about it.

4 So, I am wondering, Doug, what does

5 the Department generally look at in terms of

6 product that violates the standards but just was

7 produced like ten years' ago? Do you have sort

8 of a cutoff date that the Department generally

9 looks at as we are not going to bother going

10 after someone for something they made ten years'

11 ago?

12 MR. RAWALD: Right. Generally, we

13 stick within five years of looking at violations.

14 But the point that I made before is

15 that our record retention requirement for

16 manufacturers is two years' past the life of the

17 item because oftentimes it is tested for the

18 first time well at the beginning of the item's

19 time. And so if the item is in circulation for

20 ten years, the record retention requirement is 12

21 years. 

22 And then after it has been out of
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1 circulation for two years, then there is no more

2 ability to get to it. So, that is kind of the

3 practice.

4 So, I get that, though I think there

5 is at least some sort of reason for us to

6 consider that the manufacturer's capacity to keep

7 those records and testing of an information is

8 certainly a lot easier than the contractor's

9 ability to keep records of many more

10 installations over a longer course of period of

11 time. So, I want to weigh those burdens as we

12 look at this.

13 You have to understand that we have to

14 do sort of cost benefit analysis from a PRA point

15 of view on this. So, that is going to be part of

16 what is going to drive the math on this.

17 But I really take Harvey's point with

18 a lot of information. I think it is a very

19 important data point for me to consider what

20 these folks have talked about this.

21 MR. EISNER: Okay, is there anything

22 else we want to discuss on this?
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1 MR. PORTER: This is Steve Porter,

2 Johnstone Supply. I support Chuck's position on

3 this and that we keep it within normal record

4 keeping process that exist today and so I don't

5 have to do a training effort throughout the whole

6 organization.

7 And quite frankly for us, and I am

8 sure for some, this is a space issue on

9 inventory. All this paper adds up, believe it or

10 not. They are not all -- so, we do clean ours

11 out and change our pictures on the wall.

12 (Laughter.)

13 MR. PORTER: But it is quite a bit of

14 records that we keep now. So, we are on it

15 because it is actually an inventory space issue

16 and a storage issue, not that that should drive

17 this but it is just I would rather keep it in

18 line with record keeping. I think it would be

19 more successful, you will have more success over

20 the issue and get better record keeping, if it is

21 in alignment with that.

22 And also, as far as what Chuck was
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1 saying, I mean, every homeowner knowing when or

2 even caring eight years later remembering when

3 the unit was in, it is not likely. Movement out

4 of the house and transition of sale and all of

5 those things that go on as well. And plus there

6 is, and most of the time it may not be the

7 installer, but service contracts are prominent in

8 the industry.

9 So, the likelihood that that unit is

10 not going to be seen in eight years is small.

11 MR. MELCHI: Jon Melchi with HARDI.

12 Doug, one of the question I got from

13 one of our members was does the Department

14 envision this record keeping requirement to kind

15 of encompass all distributors in all 50 states? 

16 The gentleman I am talking about is from the New

17 England area and his question was so do I have to

18 maintain my records in the same manner that a

19 distributor in the south or on a border state

20 would be.

21 MR. RAWALD: Right and so I think we

22 have talked about that a little bit before about
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1 -- and it was more from the contractor point of

2 view than the distributor point of view that

3 contractors are more limited in their geographic

4 scope, whether there was a need to make a uniform

5 requirement across the industry versus only those

6 that will be touching appliances going into the

7 regions. 

8 And I will say at this point I am open

9 to ideas. I am probably not going to send a

10 records production request to that New England

11 distribution house unless I have heard that

12 somebody got a 13 SEER unit from him in Virginia

13 and they delivered it to him.

14 So, unless he is operating in that

15 manner, I am probably not going to ask him for

16 records. And so if I never ask him for records,

17 he is going to have very little incentive to

18 retain them. So, that is kind of how I think

19 about this from a practical point of view. But I

20 would like to hear people's thoughts on it.

21 MR. DENNIS: Just from a utility

22 perspective, I mean I don't know how this is
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1 going to play out because a minimum standard we

2 don't really incentivize. But we do keep records

3 of when we help people with air conditioners or

4 other products.

5 And I think that when we are involved

6 in these rulemakings and in similar rulemakings,

7 we kind of come up with these bad actors and

8 think of these bad actors and get kind of

9 paranoid about them and then put additional

10 burdens on normal people who aren't bad actors.

11 I don't think that is a good way to

12 kind of live your life. Like what about this

13 guy? I have got to keep all my paperwork so I

14 can prove I am not him. I think we don't need to

15 spend a lot of time, as much time putting new

16 burdens on people who are acting good just to

17 kind of deal with this rogue contractor. And I

18 think that is probably the position that we face.

19 We are keeping the paperwork anyway. 

20 There is no reason to keep it for an extra couple

21 of years because there might be somebody out

22 there who four years ago did something they
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1 weren't supposed to do and now I have got to keep

2 paperwork. It doesn't make a lot of sense.

3 MR. FERNSTROM: Excuse me. This is

4 Gary for the California IOUs. So, I certainly

5 agree with that point of view. However, some of

6 us investor owned utilities that are regulated by

7 state utility commissions are obliged to follow

8 certain rules. And if we were to give an

9 incentive for a product, I think we need to be

10 assured for some significant time that it

11 complied with our eligibility requirements.

12 And for that reason, I think the

13 longer record keeping is probably appropriate. 

14 Once you do the record, it is just a matter of

15 having it sit there in a box.

16 MR. DORIA: This is Jordan with

17 Ingersoll Rand. I understand that point but, as

18 I understand it, obviously there is a higher

19 level of variability in utility programs but I am

20 not aware of really any program that does not

21 require submission of what the efficiency of the

22 product was, typically in the form of an AHRI
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1 certificate though not limited to that.

2 And in the case of the California

3 IOUs, almost all the split system rebates today

4 are predicated on a quality install. So, you

5 also need that additional documentation.

6 So, I think there is, in the case of

7 utilities, their record keeping is kind of

8 already there, independent of what would be

9 required here. At least that is my perspective.

10 MR. DENNIS: And to my point,

11 certainly when there is financials involved, we

12 would probably be required to keep it or we would

13 keep it longer. My point is we don't need to put

14 more on because of this, because there might be a

15 bad actor. There is instances where we do. I

16 don't think this is one of them.

17 MR. FERNSTROM: So this is Gary. 

18 Jordan, you are right about the California

19 Utility Rebate Programs. I agree. However, we

20 also operate this codes and standards program for

21 which we get energy saving credit. And we need

22 to assure ourselves that the credit, energy
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1 saving credit we claim for codes and standards is

2 legitimate and there might be a requirement to

3 assure, at some point in the future that

4 compliance with the codes that we advocated for

5 is actually being achieved.

6 MS. SHEPHERD: This is Amy Shepherd

7 from AHRI. I understand that but this record

8 keeping requirement has to be based off of this

9 enforcement plan. So, I think we have to look at

10 what is effective, what is the requirement for

11 this enforcement plan to be effective, even

12 though it may be used for other purposes. We

13 can't justify the length of time by what

14 California needs for other incentive programs.

15 And going back to the question of

16 whether it is sort of national or regional, I

17 think one thing we would consider would be to

18 have this requirement apply to distributors and

19 contractors located within the region or maybe

20 that make sales to the region. And I would just

21 tee that up for discussion purposes as a way to

22 sort of not make it national but to try and maybe
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1 capture those individuals who are making the

2 sales. That is food for thought.

3 MR. SACHS: This is Harvey and I am

4 intrigued by Amy's suggestion and would certainly

5 love to see further discussion of the pluses and

6 minuses in the general sense of all of us trying

7 to minimize the regulatory burdens where they are

8 not useful.

9 But at the same time, I editorially

10 want to differ with my friend Keith in that as

11 far as I am concerned, all manufacturers and all

12 businesses have, for many decades, paid the

13 burden, paid some burden of showing that they are

14 not bad actors, whether it is OSHA or wage and

15 hour regulations because there are a few people

16 who have been bad boys. We have chosen as a

17 society to impose that burden.

18 So, we are trying to minimize it but

19 I don't think that you can make the philosophical

20 argument that we can't impose some requirements

21 on everyone to avoid much worse damage for those

22 who would willfully violate. 
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1 End of rant.

2 MR. EISNER: Anything further? Have

3 we covered some of the issues that were up there

4 the last time? I think one of them is about

5 internet operators.

6 MR. RAWALD: So, I would recommend

7 this might be a good time for lunch. I know I am

8 beginning to lose a little momentum myself. And

9 if possible, if we could then tee up for the

10 discussion after lunch the prohibited acts, that

11 seems to be the most important thing to make sure

12 we get before people start flying out of here, if

13 that is okay with the rest of the room.

14 MR. EISNER: Why don't we come back at

15 a quarter after one.

16 (Whereupon, the above-entitled matter

17 went off the record at 12:13 p.m. and resumed at

18 1:22 p.m.)

19 MR. EISNER: I think the agenda for

20 after lunch was, first of all, to talk about the

21 October meeting and whether we are going to need

22 it. And then to start off with prohibited acts
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1 so we could get that done before we took two

2 weeks off.

3 So first of all, October. Any

4 thoughts on that? This is really to make sure

5 that people who want to come, have to come to the

6 meeting can get airline ticket reservations. 

7 MS. MEYERS: So, this is Karen with

8 Rheem. I guess to start the discussion, I think

9 October 1 and 2 are probably going to be

10 required. I don't see us wrapping this up next

11 time we meet. I'm not sure about the next one.

12 MR. EISNER: Does anybody disagree

13 with that?

14 (Laughter.)

15 MR. EISNER: All right, it sounds like

16 we have consensus. So, plan on the October

17 meeting. We have rooms for that, so we are all

18 set. Okay.

19 MR. LATTANZI: Yes, this is Matt. It

20 looks like it is at the L'Enfant. Is that

21 correct?

22 MR. RAWALD: That is correct.
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1 MR. LATTANZI: My sheet here shows it

2 is still in here, but it has moved.

3 MR. RAWALD: The October 1 and 2

4 meeting was tentatively scheduled to be at the

5 offices where we had the second meeting at the

6 L'Enfant office space. Now that we are closer in

7 time we could, of course, see if any rooms are

8 changed around. So, that tends to happen as

9 things come closer.

10 So, I will have my people look at

11 that. So, the meeting we have at the end of

12 September is going to be here in Forrestal, just

13 in the basement or the ground floor. There will

14 still be no windows.

15 MR. EISNER: Okay. The next thing is

16 to start with prohibited acts. And in the event

17 that we get through that quickly, you should be

18 thinking about whether there is anything else on

19 the list that we want to complete before we go

20 back to the schedule. We were -- the next step

21 and some of these didn't look like they were

22 going to take very long but the next step was use
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1 of warranty information. Is there anything else

2 on the list we should discuss first or any other

3 issues, start thinking about it.

4 Prohibited acts, I think last night's

5 handout gives you the current version, the

6 language we worked on yesterday. I don't know if

7 that is where you wanted to start. You had

8 mentioned the subject. We had the four or five

9 bullets we had created yesterday.

10 MR. RAWALD: Sure. And Amy approached

11 me during the break and I just want to make clear

12 how DOE views the term prohibited act.

13 So the prohibited acts are the things

14 that DOE has the authority to charge a civil

15 penalty for someone doing. So, we have

16 enumerated prohibited acts in our regulations,

17 which are mostly directly derived from the

18 statute, which lists prohibited acts as well and

19 then we have a couple that are interpretations of

20 the statutory authority for things that we also

21 take action on.

22 So, the consequences of a prohibited
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1 act is this would be something that I could turn

2 to the party named and say you committed an

3 unlawful act and you would face a penalty of up

4 to $200 per violation for doing. So, I want to

5 make sure that is clear to the group. That is

6 what we were discussing when we discussed

7 prohibited acts.

8 MR. EISNER: One which is upon the

9 board is what we suggested I think in the middle

10 of yesterday afternoon. There seemed to be

11 general consensus behind it.

12 MS. SHEPHERD: This is Amy Shepherd

13 from AHRI. And I just sort of want to clarify

14 sort of where this all started from which is in

15 the prohibited act that is in the statute right

16 now, it talks about what a manufacturer can do

17 and what they are prohibited from doing. And

18 because they are prohibited from knowingly

19 selling a product to a distributor, contractor or

20 dealer, who would acknowledge that that entity

21 routinely violates the regional standard.

22 So, for the prohibited act that is
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1 listed for manufacturers, manufacturers have to

2 know what a violation is, so that they know when

3 they have that knowledge.

4 And so that is that piece of it. And

5 so I think manufacturers are going to need

6 clarity on what a violation means, so that they

7 know when they can sell and when they can't. And

8 those violations could be similar to, they could

9 be the same as, they could be separate from any

10 additional prohibited acts. It really doesn't

11 make sense that they would be separate from but I

12 think they are two very related things but they

13 are kind of in different buckets, I think.

14 MR. RAWALD: This is Doug. I agree

15 with that entirely. That was the point I was

16 making yesterday when I was pushing against

17 people trying to conflate the two terms but then

18 acquiesced in the fact that it seemed like people

19 really wanted a defined prohibited act. So, I

20 said let's go ahead and do that, if that seems to

21 be the consensus of the room.

22 So, the caveat that I have, Neil said
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1 there is general consensus, is I don't have an

2 opinion on these at the moment. So, DOE has a

3 statute and we can interpret it based upon our

4 authority.

5 So, what I want to do is once we fine

6 tune what we want the prohibited acts to be, I

7 want to bring it back to our lawyers and have

8 them make sure that those words are words they

9 feel are a fair interpretation of the statutory

10 authority we have.

11 So, I mean I have said to the group

12 that we have broad authority but I want to make

13 sure that we are not going beyond that authority. 

14 So, that is why I am reserving any comment from

15 the Department. I am trying to do my best to let

16 you folks craft what you think are the ones that

17 would be acceptable to you, so that I could bring

18 them back to the Department for them to look at

19 further.

20 MR. DORIA: Doug, this is Jordan with

21 Ingersoll Rand. So, to that end, it would be

22 good, at least in my view, it would be good for
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1 us to try and get to our own consensus, so that

2 you could do that review between now and our next

3 meeting.

4 MR. RAWALD: I absolutely 100 percent

5 agree. 

6 MR. DORIA: Okay.

7 MS. NOLL: This is Elizabeth. Amy, I

8 apologize but can you explain one more time? 

9 Because I think I might be getting things

10 confused as well. I'm just not clear on it.

11 MS. SHEPHERD: Sure. Sure. Okay, so

12 EPCA sets out prohibited acts. That is the

13 things that DOE can take action on. DOE also is

14 of the view that, through their interpretation

15 authority and the sort of general authority they

16 have to do things that are necessary to enforce

17 these prohibited acts, I am paraphrasing, but

18 that they have in the past, in other cases,

19 identified in regulations other enumerated

20 prohibited acts. So, they are enumerated. It is

21 like one, two, three, four, five. We will ignore

22 that there is two sixes, but six and seven in the
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1 statute. 

2 So, that is the prohibited act. That

3 is what they can bring an action against and

4 charge civil penalties for.

5 So, in the section that deals with

6 regional standards, there is a prohibited act for

7 manufacturers and that talks about it is a

8 prohibited act for manufacturers, I am going to

9 paraphrase again, to basically sell a product to

10 a contractor, dealer, or distributor, if they

11 know that that entity is routinely violating the

12 law. But there aren't separate prohibited acts

13 listed out in the statute for contractors,

14 retailers, and dealers and distributors.

15 So, in order for manufacturers to know

16 what their prohibited act is, they have to know

17 what we think or DOE thinks a violation of that

18 act is.

19 Now, the separate question is, do we

20 want to add additional prohibited acts that DOE

21 could enforce with civil penalties, in addition

22 to this obligation of the manufacturer. But our
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1 point and the reason this was sort of brought up

2 is, at least for us, a first step is a

3 manufacturer has to know what a violation of the

4 Act is because that is what they are prohibited

5 from doing is selling to people who have done

6 that thing. So, that is kind of where at least

7 that piece of it starts.

8 And so I think then we get into the

9 question of okay so, we are going to define what

10 a violation is, so manufacturers know. Is that

11 violation also going to be a prohibited act? Are

12 we going to have separate prohibited acts or are

13 we just going to have violations? What do we

14 need for this to be an effective enforcement

15 plan?

16 MR. PORTER: And this is Steve Porter

17 for Johnstone Supply. 

18 So, I see the prohibited act you have

19 right now with the manufacturers. What I would

20 view as a violation is your are going to have,

21 somebody is going to have to show up and confirm

22 a violation. That is going to have to be the
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1 Department of Energy. So, they are going to have

2 to request records, do fact checking, confirm

3 that the contractor or homeowner or installer,

4 whoever did the job is in violation. That has

5 got to be communicated up to a manufacturer.

6 This is what we found. It was your

7 equipment that was at the job site. We found out

8 the contractor bought from X distributor. That

9 distributor is your distributor. We are going to

10 fine you, if you don't stop selling or restrict

11 the equipment to that, get your manufacturer or

12 your distributor to restrict, or maybe it is

13 yourself, restrict the sale of that type of

14 equipment to that contractor.

15 So, the manufacturer has a huge hammer

16 over the distributor because, typically, that

17 could be as much as 50 or 60 percent of their

18 business and they are under contractual

19 agreements with that particular entity, usually

20 the manufacturer. The manufacturer and

21 distributor will have a contract giving them

22 territory, giving them certain rights to sell
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1 that equipment.

2 So to me, it is once you get them all

3 in line and communicating but we would have to be

4 notified. I don't think a distributor or a

5 contractor or a manufacturer is going to know the

6 violation until it is confirmed by you, DOE.

7 MR. EISNER: Do you agree?

8 MR. RAWALD: I think there is a lot

9 more nuance. I think Steve is doing a good job

10 trying to give a layman's -- because there is a

11 lot more nuance to what is going to happen.

12 But essentially, the running discourse

13 between Jordan and I is the question of whether a

14 DOE determination is absolutely necessary before

15 somebody could be found to having knowing

16 interaction with somebody who they have knowledge

17 is a routine violator. And I think that there is

18 some middle ground there where if DOE puts you on

19 notice, certainly you have knowledge that that

20 person shouldn't be someone you are dealing with. 

21 But if you have knowledge yourself because they

22 told you, hey I am going to go ahead and install
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1 this in Tupelo, Mississippi and you sold it to

2 them anyway, then I would argue that that is also

3 knowledge sufficient to be found hey, you were on

4 notice that this guy was doing the wrong thing. 

5 So, there is some gray area there that

6 I don't think necessarily requires the Department

7 to have a determination for then you to be found

8 to have been playing with the wrong actor from a

9 manufacturer point of view.

10 So, just to get to where we are. So,

11 I was trying to approach it yesterday from the

12 point of view that I think Amy and I share, which

13 is I wanted to define the violations so the

14 manufacturers can understand them but we kind of

15 shifted focus from that and we put that aside to

16 look at what acts would people want in an ideal

17 world to add as prohibited acts, for which DOE

18 could take independent action for, which may then

19 inform what we decide to make -- define the

20 violations as. I mean, we could as easily say a

21 violation is a commission of one of the

22 prohibited acts that have been enumerated. And
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1 that is as simple as it could get at the most

2 basic level.

3 So, that is kind of, I think, how we

4 got to where we are. And so I think what we

5 really need to decide is does everyone understand

6 that when we were putting these on the board that

7 we were talking about things that for which the

8 person is named, they would face a penalty for

9 doing that thing? And is everyone okay with how

10 it is drafted or would you want to redraft with

11 an understanding or dismiss it all entirely?

12 MR. MELCHI: This is Jon Melchi from

13 HARDI. I thought I said yesterday and maybe I

14 will clarify today that this is something that we

15 would need to get that we specifically need to

16 take back to our members. And one night is not

17 sufficient to do that.

18 My question for you, Doug, is -- I

19 certainly understand the Department's ability to

20 add prohibited acts. My question is, is there

21 precedent for the Department adding regulated

22 entities to those prohibited acts?
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1 So, I get that there could be

2 additional prohibited acts added to

3 manufacturers, falling, I guess, under this EPCA

4 umbrella. But is there a history for adding,

5 say, contractors as violators of a prohibited

6 act?

7 MR. RAWALD: Right. So, this is Doug. 

8 I gave you guys, during my short spiel back on

9 the second day of this, I wish we had the

10 PowerPoint, hopefully you guys can go back and

11 look at that, which listed the ten prohibited

12 acts we have in our regulations.

13 So, none of them list contractors as

14 a current body. There are two prohibited acts in

15 the statute that name distributors and retailers. 

16 So, it is not unprecedented that they would be

17 considered part of a prohibited act.

18 Only one of those is a DOE prohibited

19 act, so only one of those ended up in our

20 regulations. The other one is an FTC one. So,

21 those are the two occasions where those folks are

22 named. And there is no place where the term
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1 dealer appears at all in any prohibited act

2 either. So that would be new terms. The term

3 reseller doesn't appear in regulations anywhere,

4 so that would be new as well.

5 MR. PORTER: Steve Porter, Johnstone

6 Supply. So, I will try and give the

7 understanding of the difficulty as easy as it

8 sounds as someone telling someone at the counter

9 that I am going to do this. And whether -- not

10 distributor is going to then drive out to a

11 homeowner to check to see if what they were told

12 and get on a homeowner's property to investigate

13 an issue like that. That would be just something

14 that would be way outside of our scope or an

15 invasion of dealing with our contractor customer. 

16 So, I am going to put somebody in a van and have

17 them follow that contractor to a job site to

18 watch an installation, to do that process.

19 Now, I think the whistleblower number

20 takes care of that issue, as long as it is

21 anonymous and we have that ability. And I think

22 it is easier for a distributor to turn in a
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1 violation in that fashion than it is to get what

2 may or may not have happened but we are not set

3 up to be an investigative group.

4 MR. RAWALD: And this is Doug. So, I

5 don't want to imply that that would be a

6 requirement at all. What I am saying is, and

7 this is not about -- and for the manufacturer

8 prohibited act, which is the one from the

9 statute, which is the first one there, because it

10 requires knowledge that they are a routine

11 violator, it is not that you have the guy come in

12 and say yes, I am going to go ahead and install

13 this one time in Tupelo but the guy routinely

14 comes into you and buys and he is always saying

15 yes, I am going to Tupelo to install this today. 

16 So, you know that -- you have knowledge that this

17 guy has told you on multiple occasions that is

18 where he is going with this thing. You don't

19 have to investigate it but you are pretty much

20 put on notice that he is going to do this in the

21 place he shouldn't be doing it in.

22 And if you keep on selling to him
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1 knowing that that is where he is saying he is

2 going every time he has come into your office,

3 then we are going to say okay you were put on

4 sufficient notice to have knowledge here under

5 the statute that he was routinely violating the

6 statute. That is how I would approach it from a

7 pure fact applied to the law from that example, I

8 think.

9 MR. PORTER: And just, since you are

10 not at the counter and understand that process,

11 you know, that contractor could be going to

12 different locations, stores, talking to numerous

13 people. Whether they line that information up

14 and actually go, oh, yes, and they all get in

15 the break room and yes, he said that to me, they

16 are going to sit around on their break and talk

17 about regional standards is probably not very

18 likely.

19 So, I mean that is why I would prefer

20 that I get notice that this person is a bad

21 actor, that obviously we are going to cease and

22 desist on selling that type of equipment. If my
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1 manufacturer or manufacturers come to me with

2 that information that they obtained from you and

3 then it is confirmed and it is not a maybe or a

4 guess that I am cutting off customers on either

5 rumor, or innuendo, or my guy doesn't like that

6 guy, and I heard he was doing this, and I think

7 he is a violator, I need something a little more

8 hard before we go down that road.

9 MR. RAWALD: This is Doug and I get

10 that. I mean a lack of knowledge is the perfect

11 defense to knowledge. So, you would then be

12 explaining why you have no knowledge of that

13 thing.

14 And I think the easiest case for us to

15 bring is a case would be one where we have a

16 finding that a guy is a routine violator and then

17 we have sales to that person after we told you

18 that person is a routine violator. That is the

19 easy case.

20 What I am saying is I can't sell to

21 the Department that is the only case. They have

22 got to leave room for the massive email chain
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1 between the manufacturer and the distributor and

2 the dealer. And this scenario is very unlikely

3 to happen. I am giving you the worst case

4 scenario here. But of the guy saying yes, we had

5 this 100 house home project in Tupelo,

6 Mississippi, as soon as I get all these 13 SEER

7 units in, I am going to go ahead and bring them

8 down there and everybody is saying that sounds

9 great. Good job, you are going to save us all a

10 lot of money, which nobody wants. Everybody

11 wants to make money. I understand. But because

12 there are people who think in these kind of

13 terms, I have to reserve the ability for us to

14 not only bring cases where I have found someone

15 to be a routine violator, but where there is the

16 possibility that everybody knew the guy was

17 routinely violating and didn't tell us about it

18 and we found out later.

19 MR. PORTER: Steve Porter, Johnstone. 

20 I mean that is why I think the whistleblower

21 works for us. It works fine, I think, as long as

22 they are aware of it. And I think direct
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1 knowledge, like you just described in the email

2 trail, I don't think anybody is going to have any

3 trouble with that.

4 MR. RAWALD: Okay.

5 MR. PORTER: Right? I mean they have

6 stated it. I have documentation. I am not

7 listening to someone in the organization three or

8 four levels down or a warehouse guy coming and

9 telling me, or conversation at the counter or

10 whatever that we will actually have physical

11 proof, absolutely.

12 MR. EISNER: So, this is going to be

13 in this language that is up here. Are you

14 comfortable with this explanation or are you

15 still troubled by having that in the list of

16 prohibited acts?

17 MR. PORTER: I guess I am -- as I

18 understand it, once we find a violator and the

19 violator is known and DOE has communicated that

20 to the manufacturer, then it is the manufacturer

21 to the distributor, to the distributor to the

22 contractor. So, whether you call that a
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1 violation or prohibitive act, it seems more like

2 a violation to me than it does than to put it in

3 a prohibitive act.

4 But you know I think the mechanism is

5 in place, I guess, how I view it already because

6 DOE is going to be talking directly with their

7 manufacturers about that issue and fine. And if

8 we are routinely violating the manufacturer is

9 going to be canceling that contract that is with

10 the distributor.

11 MR. RAWALD: So, and I want to address

12 Jon Melchi's point and then I will address yours

13 as well.

14 So, I don't expect anyone to say that

15 this is where their group is willing to go. I

16 understand fully if you want to take these back

17 to that group as well. I think we want to iron

18 out what we hear, feel comfortable presenting to

19 our group in unison, so we can all go back to our

20 respective people and get their views so when we

21 come back in three weeks we can say I have talked

22 to my folks and they hate it. I have talked to
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1 my folks, they are okay with it. So, we can kind

2 of gauge that we are all listening to a piece of

3 information to them.

4 So, the question of whether it is a

5 violation versus a prohibited act is important

6 only because DOE assesses civil penalties for

7 commission of prohibited acts. That is what a

8 prohibited act means to us. So, if we define a

9 prohibited act as something that we are saying

10 DOE has the authority to charge a civil penalty,

11 a monetary amount of penalty for somebody

12 committing. 

13 So, the violation is important but

14 separate because the violation is the thing that

15 if the person is doing it routinely, the

16 manufacturer who deals with that person, once it

17 is known, will have to pay a penalty for. And

18 that is a baseline. So, that is going to exist

19 no matter what. The manufacturer will -- if that

20 happens, that prohibited act exists.

21 So the question on the board really is

22 are folks comfortable with recommending that the
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1 Department of Energy add prohibited acts to

2 address different people in the chain, so that

3 they could face financial liability for actions? 

4 Whereas, right now the only person that actually

5 faces a financial consequence from the

6 Department, because I understand there is market

7 consequences that are financial in nature, are

8 the manufacturers from the statute.

9 I am trying to make this as -- it is

10 so complicated and I really want to make sure I

11 am making it very clear because I don't want

12 anyone to be confused on this. I think it is 

13 really important that everyone has clarity on

14 what we are doing.

15 MR. GIBBONS: This is John from

16 Carrier. Can we take the easy one first and that

17 would be the resellers and the retailers? We all

18 like that one.

19 MR. RAWALD: That is the easy one from

20 you guys.

21 MR. GIBBONS: Yes.

22 MR. RAWALD: So, it is probably the
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1 hardest one for me because they are the people

2 who are not named by name in anything before

3 here. So, I will put that out there. But

4 everyone does want these guys to be responsible.

5 Now what is interesting to me, and

6 this goes back to John Hurst -- is he still here

7 or not? So, what he mentioned was the definition

8 of retailer that we have, which everyone has

9 before them in the statute describes someone who

10 takes delivery of a product. And so it may not

11 actually imply in the context of the air

12 conditioning retailer market. And so I want to

13 talk to him more about that to make sure that we

14 are careful. Otherwise, if it doesn't apply to

15 them, then in effect, they are distributors.

16 So, that is one thing that I want to

17 get his opinion on because he was going to work

18 on a definition he thought or some tailoring of

19 this to meet the regional standards context. And

20 he is not here, so he can't now.

21 

22 So, there is that caveat but I am
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1 going to have people really looking at this hard

2 over the next two weeks because I think this is

3 really important.

4 But it sounds like around the room,

5 everyone, because there are no retailers here and

6 there is no resellers here, they should face some

7 monetary penalty if they are selling things.

8 MR. PORTER: I will disagree.

9 MR. RAWALD: Okay, Steve.

10 MR. PORTER: This is Steve Porter with

11 Johnstone Supply. I will disagree a little bit

12 with that and put them in as what is a violation. 

13 And I will do it in this context that I mean what

14 I want on that kind of violation is there doesn't

15 seem to be a lot of motivation right now to get

16 that equipment offline and out of those hands.

17 And I know that sometimes I get the

18 excuse of I am just playing whack-a-mole with

19 contractors but there has been no motivation to

20 seek out those contractors that put that online

21 and sell to an end user directly out of their

22 territory or in other regions or to unqualified
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1 people or people that don't have a 608 or all of

2 those things that seems to go on unchecked. And

3 so, I would rather see it as a violation because

4 I want some motivation up the stream. 

5 MR. ROCKY: So, this is Bryan. I

6 think you just said your agreement with this as a

7 prohibited act is the motivation is if it is a

8 prohibited act, the violation can be defined and

9 that leads to civil penalties to these people

10 that are doing the potentially bad behaviors.

11 So, I think you agree that that is

12 necessary, not that it is not necessary.

13 MR. PORTER: I understand if it is a

14 violation, then it is going to be on the

15 manufacturer, who is under the prohibited act, if

16 we call this out as a violation, unless I

17 misunderstood Doug.

18 MR. ROCKY: No, adding prohibited

19 acts, as shown up there, leads to the opportunity

20 for the Department to have civil penalties in any

21 of those categories for violations, which we

22 still have to define violations for a couple of
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1 those categories.

2 MR. PORTER: I'm sorry, Bryan, maybe

3 I wasn't clear. I see the retailers and

4 resellers as a violation, not as a prohibited

5 act.

6 MR. RAWALD: Yes, what I hear Steve

7 saying, this is Doug, is that he doesn't see the

8 need to give the Department authority to charge

9 civil penalties to the retailer or reseller. He

10 wants to put the emphasis on the manufacturer to

11 stop dealing with them, based upon the statutory

12 prohibited act we already have, by finding to be

13 a violation on their part and to deal with the

14 retailer who is routinely violating that, that

15 would then be a prohibited act committed by the

16 manufacturer. Is that right Steve? 

17 MR. PORTER: Yes.

18 MR. RAWALD: Okay.

19 MS. MEYERS: So, this is Karen with

20 Rheem. In the instance where the manufacturer is

21 not dealing with the retailer or the resaler and

22 it is another entity, maybe a distributor, then I
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1 have a problem with it going back to the

2 manufacturer. Because I probably am not selling

3 to the retailer or the resaler.

4 MR. PORTER: This is Steve Porter,

5 Johnstone Supply. But you would be selling to

6 the distributor. So, you would have, once you

7 find that violation or you seek it down, why is

8 my equipment online, you would have motivation to

9 police.

10 MS. MEYERS: There is a lot of my

11 equipment online that I have no idea how it is

12 getting there.

13 MR. PORTER: That is my hope, that you

14 will find out why it is there.

15 MR. SACHS: This is Harvey. And we

16 have tried real hard to be supportive of a system

17 that is purely reactive but that is built on the

18 assumption that there are the incentives for

19 information to flow from wherever it is found for

20 appropriate action.

21 There are two pieces that weren't

22 mentioned. One of them is what I was picking up
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1 between the lines and Steve may have not meant at

2 all that it is not so much the question of a guy

3 walking in and saying I want 100 of these units

4 for Tupelo, unless it is a sting. And I am

5 hearing react. I am trying to interpret reactive

6 as meaning the Department doesn't routinely do

7 stings.

8 The other piece of that is that I

9 really do want to see prohibited acts or

10 violations recourse for any party who can cause

11 or facilitate knowingly the installation of a

12 product that is out of compliance with the

13 regional standards.

14 MR. RAWALD: Right. So Harvey, if I

15 hear you correctly, what you are saying is you

16 want anyone in the chain that could be the source

17 of it being installed, a noncompliant unit, to

18 face the possibility of having to pay civil

19 penalties.

20 MR. SACHS: If they are the source of

21 the problem, they ought to be held accountable.

22 MR. RAWALD: Okay. No, I get that. 
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1 I do want to be clear, the Department

2 has not committed to a reactive only process. 

3 And I know it has been -- what I am telling you

4 that based upon the resources and the

5 practicality, I would say most things are going

6 to be reactive but we are at least proactive in

7 that we will be testing things. We will be

8 looking at trends on occasion but we have to be

9 honest with ourselves that for the most part, the

10 best tool that we are going to have here are

11 going to be complaints, it seems like, just

12 because of what we are dealing with.

13 And so reactive is going to be the

14 more likely course of action but I don't want to

15 say it is going to be the only action. I don't

16 want to say the Department won't be taking things

17 proactively. I mean I would love to run some

18 stings. That sounds both fun and also

19 interesting. Right?

20 (Laughter.)

21 MR. RAWALD: I mean, who doesn't like

22 the movie? It is just a question of resources
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1 and time and energy and what I know about how the

2 Department works right now.

3 MR. DORIA: This is Jordan with

4 Ingersoll Rand. I guess I just wanted to maybe

5 circle back. I think where we might be getting

6 hung up to Steve's point is the way we eventually

7 sort of got to these prohibited acts that we have

8 is because we initially got clarity that we

9 weren't actually talking about actors but acts. 

10 And then the definitions flowed from that.

11 So, I guess my question would be for

12 retailers, resellers, is that act the act of

13 doing that actually different than distribution,

14 as defined?

15 So, the question becomes do we

16 actually need a prohibited act for them, or does

17 based no how we defined distribution in a

18 distributor, is it actually different? And I

19 don't know but I just want to us to make sure

20 that we are staying focused on the act itself,

21 not some sort of actor.

22 MR. RAWALD: Well, and Jordan, what I
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1 hear Steve saying is he doesn't feel there is a

2 need to have a fine assessed for those actors in

3 the chain, contrary to what Harvey is saying,

4 which he is saying he would like to have the

5 ability to assess a fine to every actor in the

6 chain who is responsible for the action.

7 MR. DORIA: This is Jordan again. And

8 I would agree with that as well. So, I think I

9 am aligned with Harvey.

10 I guess my question is when we go back

11 to these prohibited acts tailored to specific,

12 again, I would say that these are actors, I think

13 you could get at all the acts for which you would

14 want to levy a civil penalty, potentially without

15 having all four of those definitions up there for

16 the actors.

17 MR. BALLO: This is Tim. I guess the

18 concern is that distributors are defined in the

19 statute and it is not clear that all retailers or

20 all resellers would be distributors and that

21 retailers is also defined in the statute and

22 would all the people that we are trying to get at
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1 here qualify as retailers if they don't actually

2 take delivery of the product.

3 I guess to Steve's point, that this

4 group of actors should be sort of left to have

5 the manufacturers, or if we have a prohibited act

6 for distributors, to have the distributors be the

7 ones that bear the responsibility for providing

8 it to them. I think we need to keep in mind that

9 as it is currently worded, manufacturers are

10 distributors, assuming these are the prohibited

11 acts that we would have for them, would only be

12 responsible for knowing violations.

13 So, if a retailer/reseller gets a

14 product through some other dishonest

15 representation to that party further up the

16 chain, this would essentially allow that to

17 occur, if there is no separate responsibility for

18 the retailer/reseller.

19 MR. RAWALD: And further to add to

20 Tim's point, so the assessment of civil penalty

21 would rely upon routine behaviors. So, there

22 would be nothing at all for a guy that was
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1 engaged in behavior that was less than routine. 

2 And so the question is, does that give someone a

3 threshold of feeling I can break the law a couple

4 of times because they are not going to be a

5 routine violator. Or do they need that

6 individual concern from a contractor level, a DOE

7 level, or from a distributor level that hey, if I

8 do it one time and get caught, I am still

9 possibly facing a $200 fine, which may not be

10 much, but could be the difference between the

11 margins for a month for a particular operation,

12 depending on how close they have got to run to

13 the wire.

14 MR. DENNIS: I think it is important

15 what Tim said about the knowledge of what you are

16 doing and I think that is key. If you know you

17 are breaking the law, you should be in trouble.

18 My question is what is the actual --

19 is there a line, like a limit to what we can

20 decide is lawful? Like how is our ability to

21 make the law right here limited in any way?

22 Like could we say, for instance,
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1 contractors who don't have any knowledge are

2 violating the law? Are we making law at that

3 point and is that within the authority? I mean

4 are there any lines or we can just kind of make

5 up the law right now?

6 MR. RAWALD: Okay, so we are not

7 making up any law. Congress has given us a law

8 but within the ambit of the playing field they

9 have given us, we can interpret what they have to

10 apply to our situation here.

11 So, we have the authority to take what

12 Congress has given us and interpret it in trying

13 to create an effective enforcement plan to

14 require these particular additional prohibited

15 acts.

16 So, what I would suggest to you is

17 that not only is there going to basically be a

18 baseline kind of issue that is going to be

19 necessary but if you want to put forward a

20 prohibited act that does not have knowledge as an

21 element or has some sort of other caveat, we can

22 certainly consider it.
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1 What I really want to do is have the

2 room come to a consensus kind of what they think

3 are the things that I should then have the

4 lawyers really look at. And say, okay, we think

5 this is a fair interpretation of DOE's statutory

6 authority so that we can come back and say yes,

7 DOE would be okay with us adopting it instead of

8 no, DOE doesn't think this is a starter. And for

9 this reason, let's go ahead and see what else we

10 have to do to change this.

11 And meanwhile, folks can bring it back

12 to their particular constituencies and say how

13 would you feel about this or would you be against

14 this. And so, they could also come back with an

15 informed opinion to our next meeting about

16 whether they would be okay with it or not.

17 MR. DENNIS: Well, I mean deference to

18 agencies is well established administrative law

19 but I just am questioning whether we are not the

20 agency. It doesn't seem like we are really

21 giving deference to the law. We are kind of

22 maybe even going a little bit outside that by
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1 having so much room to determine what is lawful

2 and lawful.

3 But you know, I think we are on the

4 right path anyway. I think that knowingly, just

5 I don't see the clear line with limitations of

6 what we can and can't do or what we should be

7 doing, other than to kind of give the agency

8 advice on what their deference should be.

9 But it is not kind of just what we

10 feel like. Right?

11 MR. RAWALD: This is Doug. So, I

12 think what it is supposed to be is from your

13 vantage point in the industry, what do you think

14 would be an essential prohibited act, if

15 necessary at all, to make this an effective

16 enforcement plan. And so some folks have come to

17 the table and said I don't think it is going to

18 be effective if we don't add prohibited acts. 

19 And other folks are going to be saying we don't

20 need to add prohibited acts; it will be effective

21 based upon the other things we have put into

22 this.
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1 And so that is kind of what I am

2 asking folks to consider and then we will look at

3 it from there.

4 MR. WHITE: This is Chuck White. 

5 Yesterday when I left, I thought we made great

6 progress and I was feeling really good about all

7 this. And today, I am a little more confused

8 than I was.

9 The difference between prohibited act

10 and violation, we are looking for people who are

11 routine violators. So, perhaps you could touch

12 on that, the difference between prohibited act

13 and the violation.

14 But first, I am wondering is it

15 important that we attach who does what because it

16 is unlawful to install a product. It doesn't

17 matter who installed it. It is unlawful to do

18 it. It is unlawful to provide the product with

19 knowledge that that is what is going to happen. 

20 Is it important that you say that only

21 applies to retailers and resellers? Because if a

22 distributor does it, I guess we have got that
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1 covered in the above. But is it important to you

2 that each of these things has a person attached

3 to it that does that? And lastly, what I heard

4 you say was you have ten things you regulate and

5 in those ten things, contractors aren't in that

6 list. 

7 So, it is probably a big concern for

8 me that we are kind of expanding and setting some

9 precedent and I am uneasy about that concept.

10 MR. RAWALD: Right, so this is Doug. 

11 So, taking your middle question. So, we have to

12 identify who the party is. That is required. I

13 can't use a passive voice, prohibited act. I

14 have to identify who the party is that doing the

15 thing would be held liable for doing that thing. 

16 That is just going to be a legal requirement and

17 it is consistent with how the other prohibited

18 acts are drafted.

19 What I said was, under the current

20 scheme, which is geared entirely around

21 manufacturing of compliant products, all the

22 prohibited acts center around manufacturer except
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1 for one under DOE that also talks about

2 distributors and retailers not having the ability

3 to sell certain things.

4 So, there is no other DOE regulation

5 that relates to installation of anything. And so

6 that is why there is no prohibited act regarding

7 that because it is not an issue that is before

8 the Department in any other context.

9 So, you are correct that it would be

10 precedent-setting, though we could, of course,

11 limit that precedent in however way we want to in

12 what we do here but it is at least a fair

13 interpretation of the breadth of the statute. 

14 And if the statute talks about installation being

15 the act and it talks about the effect on

16 contractors and dealers and the fact that

17 contractors and dealers can in some way be

18 violating.

19 Now, taking your very first question

20 because I have answered your second two now, I

21 think, so the difference between a violation and

22 a prohibited act, and I think Amy and I have kind
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1 of sort of made this clear but I think I may -- I

2 don't know, I really want to try and make this as

3 clear as possible and I am sorry if I am being

4 confusing because I really want to be clear.

5 So, the prohibited acts that are

6 enumerated are the ones for which the Department

7 of Energy can assess a monetary fine against the

8 person that does the thing for doing that thing. 

9 So up here, I could charge a contractor up to

10 $200 for installing one unit. The violation

11 relates only in fact to the first prohibited act

12 that we have from the statute and, as drafted,

13 the second we have discussed, in that the

14 manufacturer will be charged money if they

15 knowingly sell products -- which we haven't

16 defined what product means yet. That is still a

17 marker. Don't worry, we are going to get back to

18 that hopefully within the next two weeks -- to an

19 entity that routinely violates the standards.

20 So, the question is, what does it mean

21 to routinely violate? And we discussed the term

22 routinely and we discussed the term violate. But
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1 the violation could be the commission of a

2 prohibited act. You know we could simply say the

3 contractor was a routine violator because he had

4 four times he installed a product that shouldn't

5 have been installed. We could do that but we

6 don't have to.

7 So, we have to come to an accord at

8 some point about what the violations are. And I

9 feel like we really have in terms of the dealer

10 of the contractor, though with the distributor we

11 are still a little bit more in a gray area. So,

12 they are different in that way, because of the

13 consequences about what we are talking about,

14 Chuck.

15 MR. DENNIS: This is Keith Dennis. In

16 my experience with these rules, it has been very

17 helpful that the point of regulation is on the

18 manufacturer. I think that if we were a

19 homeowner, we had homeowners within our

20 territory, members within our territory who say

21 we all decide to take out the knowingly part. 

22 Since the knowingly is in there, I don't have as
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1 much problem with it. They put in something and

2 now DOE is assessing a fine. And we look back to

3 the law and we see that it says it is always

4 applied to manufacturers. It applies to

5 manufacturers for that type of thing that we

6 would be in court saying they went well beyond

7 their deference to say this applies to a

8 homeowner now who is putting in something

9 compared to all the precedent in this law in

10 other areas.

11 So, I think a violation makes sense. 

12 I mean a violation is talked about, manufacturer. 

13 I don't know that expanding the authority to

14 whole new areas of different types of people that

15 aren't normally regulated under the law is really

16 something that we should be doing with this

17 workgroup. 

18 MR. BALLO: This is Tim with

19 Earthjustice. And I would respond to that by

20 saying that Congress has instructed DOE to

21 consider, at least, the possibility of expanding

22 that authority by virtue of the fact that it
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1 ordered the Department to come up with an

2 effective enforcement regime.

3 And the fact that Congress merely

4 supplied one additional prohibited act

5 specifically tailored to manufacturers, doesn't

6 necessarily reflect that Congress only intended

7 for manufacturers to bear the responsibility. It

8 just reflects the fact that Congress believed

9 that that one was so important that it codified

10 it.

11 So, I don't think it is a question of

12 DOE or this organization, this working group

13 going out and rewriting the rule, rewriting the

14 laws, and going beyond what DOE would ordinarily

15 just have to do to implement this law as it is

16 written.

17 MR. DORIA: This is Jordan with

18 Ingersoll Rand. I would agree with that and also

19 say Congress also said you cannot install these

20 products. Right? So, installation is not a

21 manufacturer act.

22 So, the moment they did that, that to
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1 me, as much as the prohibited act itself, if not

2 more, is the reason why we have to talk about

3 other actors in the chain. There is just no way

4 around that.

5 So, that is just sort of a response I

6 think we have to deal with that.

7 But the other comment I wanted to make

8 in response to this, and I understand where HARDI

9 is coming from that they need to talk about this

10 more and I certainly think that is fair, I am

11 going to offer an opinion. And I am sure Doug

12 will correct me if I go awry here but I would say

13 that if we do not define a prohibited act for a

14 manufacturer -- excuse me -- for a distributor,

15 it would be next to impossible for DOE to ever

16 really assess a civil penalty against a

17 manufacturer because we would not have knowledge

18 of that party that we would be actually

19 interacting with, which is the distributor not

20 the contractor, has in fact done something wrong.

21 Whether that is DOE making an

22 affirmative determination or not, we still need
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1 to have some sense of what the distributor's

2 wrongdoing in this would be. Because otherwise,

3 as I understand it, they have no ability to

4 actually affect their statutory language here. 

5 And furthermore, as I understood it, the

6 Department has said that is basically an option

7 here. And that if we do not give that to them,

8 they will do that on their own.

9 

10 So, I think -- I certainly understand

11 the need for HARDI and others to come up with

12 this but I think at the end of the day, the

13 answer to that distributor piece is going to

14 come, whether it comes from us or somebody else. 

15 So, I think we really can't lose sight of that.

16 MR. RAWALD: Right, this is Doug. So,

17 the question it really turns on whether you want

18 to give the Department authority to charge money

19 to the other actors in the chain. Because the

20 statute already gives me enough room to make a

21 finding that the person is a routine violator,

22 though I have to define what routine and
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1 violation is. They already give me that room to

2 do that. The question is whether that person

3 should also bear some financial penalty to the

4 government for their violation or for their

5 actions, if they are not the same thing. So,

6 that is the concern. So, that is where I am

7 coming down on.

8 So, if the folks in the room feel like

9 they want other people in the chain of commerce

10 or they feel it is appropriate in order to make

11 sure the enforcement program is effective, that

12 they face the penalty of monetary -- the

13 possibility of monetary penalties, then we need

14 to describe additional prohibited acts.

15 If people don't feel that it is an

16 additional stick that the Department needs to

17 wield, then we don't need to define additional

18 prohibited acts. That is all the question we

19 would ask comes down to. There is a question of

20 whether or not you want the Department to have

21 the ability to assess monetary fines for the

22 behavior of people in the chain besides the
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1 manufacturers as enumerated already in the

2 statute.

3 MR. FERNSTROM: This is Gary for the

4 California IOU. So, it seems to me that to have

5 effective enforcement of compliance, DOE needs to

6 have the authority to easily subject violators to

7 monetary fines.

8 MR. PORTER: This is Steve Porter,

9 Johnstone Supply. I understand that Congress has

10 asked to enforce and has given them the ability

11 to go out and do that. They also gave them the

12 ability to do regional standards and that is

13 probably something they shouldn't have pursued

14 either.

15 (Laughter.)

16 

17 MR. PORTER: So, I would put caution

18 to the wind here. Be careful what you ask for

19 the day you deliver a fine to a homeowner because

20 he installed equipment. That would be my

21 cautionary tale that if you think that is going

22 to go over easily with other groups out there or
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1 whatever, I think we are heading down another

2 delay process. 

3 I think we need to put caution here

4 and do we really -- they can still tell the

5 manufacturer we found the units. This was the

6 contractor. He bought from this person, which

7 the manufacturer sold to.

8 What more information you need beyond

9 that, I don't know. The fine isn't the issue at

10 all. It is who has the better ability to

11 control. And for me, it is my relationship with

12 my manufacturer. There is a lot of dollars at

13 stake and they wield a much bigger hammer than a

14 $200 fine. That is my point. Let's make this

15 thing clean. Let's not go down areas that you

16 haven't regulated fine before. I mean I can't

17 imagine what is going to happen when the

18 installer is the homeowner.

19 MR. ROCKY: So at this point, Steve,

20 this is Bryan, the installer as the homeowner is

21 not going to be a routine violator. A routine

22 violator --
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1 MR. PORTER: We have got to define

2 routine.

3 MR. RAWALD: Right. Bryan, let me cut

4 you off. Because it is not a question of the

5 routine violation for the purposes of the

6 assessment of civil penalty. So, it is that as

7 drafted we have a prohibited act against the

8 installer for a one-time violation.

9 Now, as a practical matter, I could

10 say with almost 100 percent certainty, I cannot

11 imagine bringing an action against a homeowner in

12 that consequence. But I won't always be here and

13 so we have got to think of the unintended

14 consequences. I think that is absolutely a fair

15 point. What we are really talking about from a 

16 practical matter is DOE going to wield authority

17 over somebody who does something? And frankly,

18 is the government going to bring a $200 action? 

19 Probably not very regularly. We are looking at a

20 guy who is going to be doing this on a more bulk

21 nature. That is the more likely action against

22 someone who has 10 or 15 homes and you go ahead
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1 and bring an action against them. That is a

2 little bit more effective and a little bit more

3 judicious use of taxpayer dollars. But I can't

4 guarantee that will be the only thing.

5 So, I think Steve's point is fair. We

6 have to think about all the consequences that we

7 are looking at here before we describe prohibited

8 acts by which the Department can assess monetary

9 fines against people for committing.

10 MR. DENNIS: Yes, and I would suggest

11 that if it is not practical that you don't add it

12 in. Because what is going to happen is somebody

13 is going to ask oh, so does that mean that

14 somebody puts in -- a homeowner puts in an air

15 conditioner across the border, they can now get a

16 fine under this rule. And I really don't think

17 that that is what -- first of all, I don't think

18 that that is what Congress intended. I don't

19 think that that is a news story that you would

20 want to see about this. I don't think that is

21 what we are intending to do.

22 So, I don't think that it is worth
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1 even going there, especially if you say there is

2 no chance that we would ever do something like

3 that. It just doesn't make sense to even go

4 there, especially when it is not routinely. If

5 it was routinely, I can't see a homeowner

6 routinely putting air conditioners in their own

7 house or something like that. But that is

8 especially troublesome that that -- if you were

9 asked that question directly, the answer is kind

10 of silly, considering what we are trying to do, I

11 think.

12 MS. SHEPHERD: This is Amy Shepherd

13 from AHRI. I guess I have a very practical

14 question for Doug, which I don't know if he can

15 answer. But our job here is to recommend

16 something to ASRAC and then ASRAC would recommend

17 to DOE that it adopt such a rule.

18 Do you think that the Department would

19 feel that they would have an effective

20 enforcement plan if there were not separate

21 identified prohibited acts but that maybe these

22 things were defined as violations, such that that
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1 is how a manufacturer alone would be responsible.

2 So, I guess I am just saying because

3 if the answer to that is the Department is not

4 going to find that viable, then it kind of -- I

5 mean we have to factor that in.

6 MR. RAWALD: Right. I did not come

7 here with any marching orders to achieve

8 prohibited acts being added, nor was I told that

9 we don't want them added. So, the slate is

10 clean, really. Because we really want to know

11 from the folks who are dealing with this from

12 both ends of the industry, what do you think is

13 going to be the most way to make this work.

14 And so if having the prohibited act as

15 a stick or whether there are various people in

16 the chain is what is going to be required to make

17 it effective, then that is what I need to bring

18 back to folks.

19 But I would say there is no druthers

20 one way or the other. I don't have many marching

21 orders either way.

22 MR. WHITE: Doug, this is Chuck White. 
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1 I would like to ask for five or ten minutes to

2 make a phone call, if that is okay.

3 MR. RAWALD: That seems fine with me.

4 MR. EISNER: It is quarter after. 

5 Let's take a ten-minute break.

6 (Whereupon, the above-entitled matter

7 went off the record at 2:13 p.m. and resumed at

8 2:49 p.m.)

9 MR. EISNER: Does anyone want to speak 

10 on behalf of the group? Or you are not reaching

11 any agreement or anything like that?

12 MR. RAWALD: Well, Chuck is the one

13 that called the break, said he was going to make

14 an important phone call to a friend. So, I don't

15 know if we want to start with him or if the

16 manufacturers have had a lengthy caucus.

17 MR. WHITE: This is Chuck White. I

18 used a lifeline.

19 (Laughter.)

20 MR. WHITE: I still have a couple

21 concerns that I really need to -- I have a

22 committee that I deal with routinely. I can't
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1 probably pull them together tomorrow but I know I

2 can get a meeting with them next week to talk

3 about a little bit of this.

4 I don't know that I have any big

5 problem talking through it but I do need to talk

6 with my people before I say yes or no. I hope

7 that doesn't shipwreck us too badly but I need a

8 little bit of time.

9 MR. RAWALD: I guess, Chuck, I don't

10 think it derails us. As I said to folks earlier,

11 I know everyone needs to go back and talk to you

12 before they commit to these things.

13 What I really want to get on the table

14 is are there anything else prohibited act wise or

15 any other refinements to the prohibited acts

16 added, or shall I reflect back that folks are

17 less interested in the idea of even adding

18 prohibited act while we are looking at these

19 issues at large?

20 Because yesterday I left it and I was

21 like oh, it seems like everybody seems to at

22 least believe there should be some prohibited
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1 acts. And now I am not so certain that everyone

2 believes that.

3 MR. WHITE: This is Chuck White. That

4 is kind of how I left yesterday, too.

5 MR. EISNER: So, anymore comments or

6 thoughts? Should we go to another issue then,

7 go back to the chart?

8 MR. RAWALD: Well, I guess I would

9 like to hear as a baseline just the question

10 really to me from the prohibited acts is right

11 now the manufacturers are the only ones in the

12 statute who face financial liability for failure

13 to comply with the regional standards, whether it

14 is theirs or someone else's.

15 So, how do people feel, as a general

16 manner, about there being financial liability for

17 other actors in the chain? So, I have heard from

18 Harvey who thinks there should be some financial

19 liability. I have heard from Steve that he

20 thinks there shouldn't. So, where is everyone

21 else kind of shaking out so I can help with the

22 Department about kind of where the room is on
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1 this issue?

2 MR. DENNIS: This is Keith Dennis. I

3 think that as a baseline, it says violation and

4 you need to have these things be violations. I

5 think that as a matter of implementation, I think

6 it makes sense to have people have a penalty for

7 knowingly breaking the rule and putting things in

8 appropriately. My main concern is adding

9 prohibited acts to classes of people who aren't

10 usually regulated by DOE and the implications

11 that that has in general -- broader implications

12 it has as we look at utilities as potential

13 distributors of end-use products.

14 I think that writing back in my notes

15 that Congress said it is unlawful, what it says

16 up there, for a manufacturer to knowingly to

17 provide this to anyone who violates law. In

18 order to do that, DOE then had to make it a new

19 thing that it is illegal to do. And a fine on

20 that for distributors, retailers, and then all

21 the way down to homeowners, a new unlawful law

22 that can be penalized. I think that I would run
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1 into a lot of problems with supporting that, if

2 that is the way it came out.

3 So, that is where we are. I think

4 violations, I mean I think -- these things --

5 when I read that, those are violations. Like, I

6 think as a baseline, I think they have to be. I

7 am just a little bit not confident that making

8 them prohibited acts when it wasn't made a

9 prohibited act in the statute would be a tough

10 sell.

11 MR. EISNER: Let me ask a question to

12 see if maybe I am misunderstanding some of this.

13 If we did not agree to call them

14 prohibited acts but the statute calls them

15 violations, would you have the same problem if a

16 structure were created that penalized the parties

17 for their violations in some way?

18 MR. DENNIS: I would have to ask the

19 lawyers what they thought of that, if that was

20 the same thing, if there was a distinction. I

21 think expanding the EPCA to non-manufacturers

22 would be a big issue for progress.
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1 MR. EISNER: Say that again, expanding

2 it to?

3 MR. DENNIS: To a non-point of

4 manufacturer for prohibited acts would be an

5 issue with our lawyers.

6 MR. RAWALD: Yes, this is Doug. I

7 don't think that Keith's issue comes down to

8 nomenclature so much as the fact that it would be

9 the financial penalty that hasn't been otherwise

10 been something that was assessed to these parties

11 before. That is the concern to him.

12 So, I guess that is my baseline

13 question is I am hearing from -- so, I have heard

14 from two people that are saying we have some

15 concerns with assessing a civil penalty, though

16 for slightly different reasons against people for

17 committing certain actions. And at least from

18 Harvey, that not only do I think that is

19 necessary in order to make this an effective.

20 And Gary seemed to indicate that

21 earlier, I think.

22 MR. FERNSTROM: Well, this is Gary. 
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1 Let me respond by asking a question. I think it

2 is pretty clear that DOE has determined that

3 actors down the market channel from the

4 manufacturer, wholesalers, distributors,

5 contractors for the purpose of determining

6 compliance can be considered as if they were

7 manufacturers and be responsible parties in this

8 regard.

9 So, the question is can a penalty be

10 assessed on down the chain just as these entities

11 have been determined to be responsible parties? 

12 And it would seem to me that if they are going to

13 be judged responsible, they similarly ought to be

14 responsible for accepting penalties. I don't

15 think you can have one and not the other and have

16 an effective enforcement scheme.

17 MR. DORIA: This is Jordan with

18 Ingersoll Rand. I mean I would stress that

19 again, that prohibited act is not the only thing

20 that was changed.

21 You said in 2007 Congress said it is

22 illegal to install. Right? So, the moment that
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1 happened, as far as I am concerned, Congress made

2 it very clear that installation becomes an issue. 

3 And that necessarily moved us away from what has

4 been a long-standing paradigm of the appliance

5 standards program, which is a manufacturer only

6 approach to this.

7 So, in my view, there is really no

8 question that, at least for this specific

9 category or product, which is all we are talking

10 about because it is the only product category,

11 with the exception of furnaces, for which

12 regional standards exist, I really don't think

13 this is precedent-setting because, again, we are

14 talking about a very limited class of product.

15 MR. MELCHI: This is Jon from HARDI. 

16 Jordan, you continue to cite with the EISA

17 changing to installation. Did EISA also talk

18 about prohibited acts? And I believe it does. 

19 And it says that it is the responsibility of the

20 manufacturer. Correct?

21 MR. DORIA: I don't know that it was

22 changed. I think it was.
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1 MR. MELCHI: Yes, it was. So,

2 Congress did, indeed, make a determination on

3 enforcement and they said it is a purview of the

4 manufacturer. Within the same law that you are

5 citing, that is indeed what they said in regards

6 to enforcement.

7 MR. RAWALD: Right. This is Doug. I

8 want intercede because these are both, they are

9 both, I think, valid interpretations that at

10 least I have, whether they are the right ones, or

11 the most reasonable ones is a different question. 

12 But I hear both sides of this. People can read

13 the statute differently.

14 The question is from developing an

15 effective enforcement plan, some people have

16 voiced that it can't be effective without having

17 everybody in the chain have a financial

18 liability. And that is from the advocates I have

19 heard that. And then from the distributors and

20 possibly from Keith, they think that no, it can

21 be effective without having that financial

22 liability.
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1 So, what I am really curious about is

2 where the contractors are, and it seems like

3 Chuck is saying I need to think about it some

4 more but Charlie hasn't voiced anything. And

5 where are the manufacturers in this? Do they

6 think there needs to be a spreading of the

7 wealth? Because at this point, only the

8 manufacturers are the ones under the statute

9 facing a financial risk or a penalty because

10 there are market risks as well, but a penalty

11 from the government.

12 MR. FERNSTROM: This is Gary again. 

13 I don't think you can have an effective

14 regulation and have it effectively enforced if

15 there is no penalty for noncompliance. Now, so

16 far as how the law reads on this with respect to

17 evidence and so on, I don't know. But it seems

18 like a simple fact to me that we can't have

19 effective enforcement without penalties.

20 MR. HURST: John Hurst from Lennox. 

21 I am going to wade into the cesspool here.

22 (Laughter.)
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1 MR. HURST: The only financial -- the

2 financial penalty doesn't have to be the one we

3 are talking about. I think to Steve's earlier

4 point, there are contractual obligations between

5 manufacturers and distributors and with

6 distributors and dealers.

7 Now, the challenge is, they are all

8 different. Some are very complex and involve

9 agreements between very large entities. Some are

10 probably more on a handshake. And I am not

11 committing in any way, shape, or form, to get to

12 a standard agreement between manufacturers,

13 distributors, distributors and contractors.

14 But I would like to do, and I think

15 what we are kind of hung up on, is are there

16 other carrots and sticks that we can use between

17 manufacturers and distributors, distributors and

18 contractors. And I am too tired to maybe

19 articulate what those are. But instead of

20 getting hung up on, I think we are hung up on

21 this, there was a settlement agreement that we

22 have to consider as well. But I would like to
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1 take some time between maybe the manufacturers

2 and the distributors, the distributors and the

3 contractors, to figure out what those other

4 potentially financial penalties or incentives

5 could be outside of this. I don't know if I said

6 that well but we need to explore that.

7 MR. FERNSTROM: Well, this is Gary

8 again. You said yourself that these other

9 approaches would have financial consequences,

10 although they may not be deemed directly

11 penalties. And if it turns out that the law

12 doesn't allow for penalties, I would suggest that

13 the law wouldn't allow for other approaches that

14 are de facto financial penalties either.

15 MR. DENNIS: One thing that I think a

16 little bit distinguishes what has been said is

17 that there are other penalties and other things

18 in the market that kind of punish people for

19 doing the wrong thing. Whereas, when you are

20 talking especially about the consumer level

21 installing a product that it wasn't supposed to

22 install and DOE saying they would never even
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1 enforce a penalty on them anyway, that is a big

2 difference. I mean to set up a penalty that is

3 never going to be enforced or implemented is

4 different than something that actually already

5 exists in the market as a real penalty.

6 MR. RAWALD: So Keith, I want to be

7 careful because what I said was from a practical

8 matter, I don't imagine that the Department is

9 going to assess a fine against the homeowner. 

10 Nowhere up on here does there seem to be a

11 homeowner as a listed party. The question is

12 could they possibly be considered a contractor if

13 they do a self-install.

14 But the prohibited acts as drafted

15 would be ones that if the Department agreed with

16 them and promulgated, we would use against

17 somebody in some way. So, I want to make that

18 clear. If we agree with these and put this

19 forward, we would use them.

20 So, the question really comes down to,

21 the very basic question that I have articulated a

22 couple of times is do you people want to have,
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1 give the Department the authority to charge

2 monetary penalties for failing to do -- for doing

3 these certain things.

4 I am hearing kind of a little

5 difference of opinion between John and Jordan,

6 possibly. Like Jordan is open to the idea while

7 John is saying, I would rather look at other

8 things. So, I am not sure if the manufacturers

9 are all on the same page here and I don't think

10 there is a need for that. But I just want to

11 make sure I am hearing -- I'm not hearing a

12 direct answer. So, before I run all these up the

13 Department's flagpole and do a lot of things I am

14 going to have to do, I kind of need to get a

15 sense from everybody where we are, so I could say

16 here is where people are, everyone. This is kind

17 of why it is important or not.

18 And if they come back and say well,

19 they are all putting it off to the next meeting,

20 guess what they are going to do for me for the

21 next two weeks, guys, while we are thinking about

22 this? I am not going to get an answer.
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1 So, if we want to have an answer from

2 the Department about where the Department is on

3 this, I need to need to know from you folks where

4 at least you think you are leaning on the issue,

5 if you thought about it. And if you don't have

6 an idea, then you need to tell me we don't know

7 and then I will have to reflect that back to

8 folks.

9 MR. DORIA: So, this is Jordan with

10 Ingersoll Rand.

11 Can we maybe take a step back from

12 this and just talk about these in the context of

13 being violations? I mean I don't think we have

14 actually said these are all in fact violations by

15 the parties. Question. Violation, understanding

16 that it is a separate term does not necessarily

17 mean it is a prohibited act which carries civil

18 penalties. Right?

19 So, I mean at least from my

20 perspective, just looking at -- well I was about

21 to point out those terms but looking at those

22 terms, to me those strike me as reasonable things
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1 to effectively prohibit, to say are unlawful,

2 regardless of whether or not every single one of

3 them ultimately carries a civil penalty. That is

4 my opinion in reading them, that that seems like

5 it should be a baseline. And we can talk about

6 the other pieces but we haven't actually, at

7 least my understanding, have not actually agreed

8 to that. So, I feel like it would be progress if

9 we at least agreed to those concepts being

10 violations.

11 MR. RAWALD: Okay and I am okay with

12 that approach. That is kind of where I was

13 trying to head, I think yesterday a little bit.

14 So, the concern would be from the ones

15 we have listed, the statutory text as described

16 right now list the three parties that the

17 manufacturer would be at risk for dealing with as

18 distributor, dealer and contractor. So, there is

19 no wedge in there for a violation for a

20 manufacturer selling to a retailer or a reseller. 

21 So, that could not be one of those violations

22 under the description of the statutory text
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1 because the statutory text doesn't mean those

2 parties in that way.

3 So, really, we are looking at the

4 distributor, with that would be a violation with

5 regard to the distributor and would that be a

6 violation with regard to the contractor and

7 dealer. If we are trying to keep it within what

8 is the violation, that the manufacturer would

9 need to be on notice that if they routinely see

10 it, they shouldn't be dealing with the guy for

11 doing.

12 MR. DORIA: Doug, maybe I am just

13 confused but we had yesterday, and on one of the

14 previous slides, there is discussion of violation

15 being a violation would be installing a product

16 that doesn't comply. I don't know that we

17 actually got to a point where we all agree

18 definitively that was in fact a violation. But I

19 mean, at least from my perspective, that is an

20 important thing to get clear on and get agreement

21 on.

22 MR. RAWALD: No, I am with you on
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1 that. I am with you.

2 What I am saying is so if Laura would

3 go back to that slide that lists these, so the

4 prohibited act we have, which is where the

5 violation is important, says it will be unlawful

6 to sell a product to a distributor, contractor,

7 or dealer, with knowledge that that entity or the

8 entity routinely violates any regional standard.

9 So, if we were to define what would be

10 a thing that a retailer or a reseller can't do,

11 that wouldn't come into play in that particular

12 text. That is all I am pointing out. But I

13 agree with you.

14 I mean it seems like there is general

15 consensus that the installation of a bad thing is

16 a violation. Everyone seems to at least agree to

17 that. That seems to be a place where we all have

18 held up our hands that we agree on that.

19 So, now there is a question of what

20 installation is. But that is one area where we

21 have at least consensus. So, I feel good about

22 that.
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1 So, I am not sure we have complete

2 consensus on what the violation would be by the

3 distributor and there needs to be at least some

4 sort of progress on that because, otherwise, we

5 are going to fill the gap, as Amy intimated

6 yesterday, with what that violation would be.

7 So, here is the idea that Amy put

8 forward and Bryan did as well with regard to the

9 violation. And then the question is, are there

10 other violations that a distributor, dealer, or

11 contractor could be committing such that if they

12 routinely did that thing, a manufacturer would be

13 charged money for dealing with them. That is

14 what it comes down to from the defined prohibited

15 act we have within the statute.

16 MR. FERNSTROM: This is Gary. So, a

17 related issue is that we seem to talk again and

18 again about the situation where a homeowner might

19 install a unit. And I would suggest that if I

20 went down to Steve's place and tried to buy a

21 condensing unit, since I am not a contractor,

22 they probably wouldn't sell it to me because it
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1 is a wholesale only business.

2 I don't think the likelihood of a

3 homeowner installing their own equipment is very

4 great. Sure, we all have connections. We may

5 have friends that are contractors that would

6 facilitate our buying a unit. But just because

7 they have a vacuum pump in the garage, doesn't

8 mean that I would be able to go down and buy a

9 condensing unit and install it myself in my

10 house.

11 MR. PORTER: This is Steve Porter,

12 Johnstone Supply. So, I am glad this

13 conversation has gotten more lively.

14 We have different issues on the HARDI

15 side obviously that we have to take back to the

16 membership, so we do have to have those

17 discussions.

18 But my direction really on the fine

19 where there is a violation is not about the $200

20 and I don't think it is about $200 to a

21 contractor. They can put that on the invoice, if

22 they want. I think the reality for me, as I look
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1 at it is really I want the onus back. I want it

2 on the manufacturer because they are the source. 

3 And it is better to start it at the source and

4 have that managed from the source than I think in

5 any other way. Because the first thing I am

6 going to do when we are done here is probably

7 call you with every online retailer, so you will

8 be busy for the next couple years chasing down

9 violations because those are all likely going to

10 homeowners that are being bought on the internet. 

11 And I, as a distributor, who have made numerous

12 phone calls to manufacturers and said stop this,

13 can't get it stopped.

14 So, our interest is and I want it done

15 at the source because they are the ones in

16 control of who gets what, even though it may go

17 to a contractor and then show up online, which

18 can come from a distributor as well but we need

19 some help running that stuff down.

20 So, once it is run down, we put a stop

21 to it but the penalty needs to be at the source

22 of the product.
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1 MR. DORIA: Steve, this is Jordan. 

2 Just a clarifying question. I mean that sounded

3 to me like a comment more focused on the

4 retailer/reseller piece than an overall comment,

5 right?

6 MR. PORTER: Yes, which is I believe

7 we are a large, most of the violations are going

8 to come from because they are going direct to

9 homeowners and they are less likely to be aware

10 of the law and they are more likely to see the

11 violations there than in any other spot. But do

12 I want to put penalties on them for getting their

13 product -- I mean I guess they are not at the

14 table.

15 I have a little bit of trouble

16 throwing somebody under the bus that is not

17 sitting at the table. Because there are online

18 sites that may eventually marry contractors and

19 homeowners, right, and that is the only way they

20 sell. So, not knowing how that evolves as a

21 market, I don't know if I want to -- how we would

22 want to -- I would have to think about that one
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1 more.

2 But I do know that if you deal with it

3 at the source and they have the ability to sell

4 you or not sell you, you know and we have those

5 discussions and they have been made aware by DOE,

6 when somebody has violated because I don't know

7 how they get that information any other way as a

8 manufacturer until an investigation is done and a

9 determination is made.

10 We can make assumptions and I can pass

11 you, which we will pass those assumptions onto

12 you, based off we have somebody come in and tell

13 us directly and we suspect, we need to give that

14 to somebody to go act on.

15 I am not going to go act on it. I am

16 not going to go to a homeowner. I am not going

17 to go do those things but I will pass that

18 information on to the DOE and I think everybody

19 would.

20 But then we need a determination made. 

21 It is like we can't -- somebody I think mentioned

22 earlier, you can't throw somebody in jail if you
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1 haven't had a trial. Right?

2 MR. RAWALD: This is Doug. I hear

3 what you are saying, Steve, and I definitely,

4 once again, I don't want you guys to be

5 investigators. I prefer people give us

6 information they have. And I think you and I

7 were clear before on what the extent of knowledge

8 that I think would be necessary and all that. 

9 So, I think we are on the same page there.

10 MR. PORTER: Okay.

11 MR. SACHS: This is Harvey. And what

12 surprises me a little bit but pleases me a little

13 bit is how much of what you said, Steve,

14 resonates very positively with me but leads me to

15 a little bit different conclusion.

16 And like you, I have got to report

17 back to a constituency that has some hardliners. 

18 I got beat up pretty bad last year for not

19 emphasizing enforcement enough in the commercial

20 equipment thing. So, I have still got a couple

21 of open sores there. That is to say that I am

22 the good cop and I have got some bad cops.
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1 And as I think about this package, I

2 am hoping I can convince them that it is

3 sufficient. I am sure they will consider the

4 minimum that is necessary, that to put it

5 slightly crudely, regardless of where the

6 information comes from, everybody from homeowner

7 to manufacturer has got to have a bit of risk, a

8 bit of skin in the game if, unlike you, they

9 don't do the right thing.

10 I think the position the manufacturer

11 is in of fearing, threatening the relationship

12 with his distributors, he doesn't have really

13 firm evidence with fear that that distributor

14 will defect to another manufacturer that all of

15 these things, to me, seem to require to make this

16 workable. We probably need to have everybody

17 involved, as painful as that is, to keep this at

18 the minimum total burden.

19 So, I could be wrong that is what I

20 see from this picture that is on the board now.

21 MR. BALLO: This is Tim and I have got

22 a question. If the concern is the people that
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1 sell product over the internet and buy that

2 product and install it out of region, the people

3 that are selling that product over the internet,

4 I had thought got it from dealers and from

5 distributors. But if only the manufacturer can

6 be held, if it is only a prohibited act for the

7 manufacturer to knowingly sell a product to a

8 distributor, contractor or dealer with knowledge

9 that entity routinely violates a standard, it

10 seems to me we are sort of delaying the ability

11 to effectively enforce this, because there would

12 have to be a finding not only that we are getting

13 these products sold online and they are being

14 installed out of region, but that someone is

15 supplying them, having been supplied, having

16 gotten the product from the manufacturer, a

17 distributor or dealer is then violating the

18 regional standard by providing that product to an

19 internet retailer.

20 So, it seems to me that if there is no

21 ability to hold the distributors -- if the buck

22 only stops when it gets to the manufacturer, it
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1 is sort of injecting this extra level of findings

2 the DOE would have to make to ever start actually

3 levying fines to bringing the situation under

4 control.

5 MR. PORTER: This is Steve Porter,

6 Johnstone Supply. I don't think the buck stops. 

7 We are talking about violations and ultimately

8 that conversation and the proof of a violation

9 has to happen with the Department of Energy. 

10 Right? So, I mean they have -- somebody has to

11 tell somebody this is a violator. We have gone

12 to that job site. We have absolute proof. And

13 now if you continue to sell to that person, you

14 are going to be in violation. That is all the

15 way down the chain.

16 But in the end, it all rolls back up

17 to the manufacturer. It doesn't matter who or

18 where or what or why, it will all end up back

19 there. 

20 MR. BALLO: I think what I was saying

21 is that it doesn't have to end up back there. If

22 you can isolate that bad distributor who is
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1 providing the product to the online seller, we

2 can actually stop that process sooner, if you can

3 find the prohibited act there and fine the

4 distributor.

5 MR. PORTER: But if you fine the

6 distributor, you are going to notify the

7 manufacturer, no matter what. You are going to

8 have to say because you are going to tell that

9 manufacturer -- I didn't make the product. You

10 are going to tell the manufacturer your

11 distributor is selling to somebody that is in

12 violation. If you continue to sell them, you are

13 in violation. It all ends up back at the

14 manufacturing. Everybody in the chain is going

15 to have to be notified in this process.

16 MR. BALLO: But there has to be a

17 finding that there is a routine violation before

18 you can do that, before you can move it up the

19 chain.

20 If a routine violation is one

21 instance, then I agree, it collapses and it goes

22 to the manufacturer.
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1 MR. PORTER: Right, which would be on

2 that when we talked about contractors, dealers,

3 homeowners and see who installed it is a

4 violation I thought. Didn't we say that

5 yesterday? That is what it says. So, that

6 pretty much takes. And if it happens on

7 installation, that is the violation.

8 MR. BALLO: It happens on installation

9 but the manufacturer isn't dealing with the

10 installer. They are only dealing in this case

11 with the dealer or distributor. 

12 MR. PORTER: Well, that is not all

13 manufacturers, number one. And even if they

14 aren't the chain still has to be notified about

15 that violation. I mean I would imagine that

16 everybody is going to get some notification of

17 that violator sent out to them if it is that

18 equipment, if it is their equipment, if it is

19 everybody's equipment because you are not going

20 to want that person to move around. So, he may

21 move.

22 He is buying from a distributor and
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1 only the distributor and the contractor or end

2 user in the chain and then he goes over to a

3 manufacturer that is also a distributor that

4 hasn't been notified because he a manufacturer. 

5 That doesn't make any sense to me. He could now

6 move his business. Correct?

7 If you are saying that if it is just

8 going to happen to the manufacturer or the

9 contractor and we are not going to haul everybody

10 in because he was just the distributor and we

11 don't need to involve the manufacturer so we can

12 stop it there. But sometimes manufacturers are

13 distributors as well.

14 MR. BALLO: I think I am getting

15 confused because if the manufacturer is the only

16 one who is going to have pay a fine and the

17 manufacturer, this particular manufacturer only

18 deals with distributors or dealers, and it is

19 those parties who are providing product for sale

20 over the internet, to someone else for sale over

21 the internet, it just seems to me like it would

22 take more time to declare, to trace it back up to
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1 the manufacturer that there is a routine

2 violation for a party that you are dealing with.

3 MR. PORTER: I don't understand more

4 time. I mean I see that as a notification that

5 would be sent out instantly to everybody in the

6 chain. So, I don't understand more time.

7 MR. RAWALD: Right, I think the time

8 isn't the notification process that Tim is

9 talking about. You have to observe a routine

10 violation in order for it to arrive at the

11 manufacturer level. But if it is a prohibited

12 act, the one-time sale, I could then pick up the

13 phone and say hey, internet dealer, you violated

14 the law. You face a $200 penalty or get yourself

15 in line. So, then I have that kind of option.

16 So, that is seemingly what I am

17 hearing Tim saying that pulls their way into

18 observe them selling five or six times and then

19 say okay, now I percolate it up to the

20 manufacturer and say oh, internet DRX is a

21 routine violator and you need to go ahead and

22 move against them. That is what I think the time
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1 is. Am I right, Tim?

2 MR. BALLO: It is not only that they

3 are acting as a routine violator but the

4 distributor supplying it to them is now a routine

5 violator. And now you, the manufacturer cannot -

6 -

7 MR. RAWALD: But it is the routineness

8 that is the time you are talking about, the fact

9 that we have to observe a course of conduct over

10 time, as opposed to addressing the one incident

11 and nipping it in the bud with an action by DOE

12 against that individual who is, at the end,

13 taking the act.

14 MR. PORTER: So, if you don't give

15 them visibility along the way, you just drop the

16 bomb on them when it is routine? I mean, I am

17 confused here that there wouldn't be a matter of

18 course and process so he can start to see

19 routine. How do I know routine? You are telling

20 me I don't get routine until it is routine.

21 MR. BALLO: So, for the DOE

22 enforcement process, I think we heard it can take
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1 three months or so to go from first learning

2 about a violation to having some sort of finding

3 or penalty or whatever. If someone is selling

4 one or two products on the internet at a time,

5 are they going to trigger the level of a routine

6 violation within a fast span of time?

7 I don't know what the seller's

8 practices are for people who sell things over --

9 air conditioners on eBay. So, I have to assume

10 that, like a lot of sellers, they are doing one

11 or two products.

12 MR. PORTER: Yes, I mean I hear what

13 you are saying, Tim. And I don't think that eBay

14 sales are something that is going to call -- it

15 is out there. I'm not denying that that isn't

16 going to be out there or happen but there is much

17 bigger online sites that sell millions and

18 millions of dollars' worth of equipment to

19 homeowners directly. And those are the ones. We

20 are more concerned about the bigger actor on that

21 type of sale.

22 But I still want to know how, if we
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1 just, if you are just going to contact them and

2 deal with them on a one direct basis that how do

3 I know or get visibility to end up to routine.

4 MR. RAWALD: Right. So, this is Doug. 

5 So, there are a couple of different ways to

6 approach this. So, if it is a prohibited act by

7 the individual to any time they do it they sell

8 this thing or they install this thing, then if I

9 take an action against the individual, then of

10 course there is a public action. Right? So, the

11 contractor does it one time. I bring a penalty

12 against them. They pay the $200. It is over.

13 They do it again. I bring another

14 action, $200. Every time, it is a public action

15 so that then that kind of builds up a routine. 

16 If I don't have a prohibited act against the

17 individual then I kind of have an open

18 investigation. I say oh, okay, I see one thing. 

19 I will add it to the list but I can't do anything

20 to that person. And so, I have an open

21 investigation until such time as they have

22 reached a routine level of activity and then it
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1 is okay, now they are a routine actor. I am

2 going to go ahead and do that. So, the level of

3 visibility to the person above in the chain is

4 actually heightened if it is a prohibited act

5 because I am able to announce publicly that I

6 took an action against the individual that can

7 inform the decisionmaking of those people higher

8 up in the chain. So, that is, I think, what

9 level of visibility comes I response to your

10 thought process.

11 MR. PORTER: So, Doug, you are saying

12 if it is a violation it wouldn't get that

13 visibility?

14 MR. RAWALD: I am saying if the

15 prohibited act is the only prohibited act that we

16 have under the statute and I have to find a

17 routine violation, I don't really have a recourse

18 by which I am going to come out there and say

19 every time I find someone committed a violation,

20 I am going to put it out there. There is no

21 mechanism by which I am advertising a one-time

22 violations of things until they get to the point
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1 where they are enough where they are routine,

2 unless we establish one here.

3 The one method that we have of kind of

4 establishing a pattern of conduct is a pattern of

5 action against somebody. They have been assessed

6 a penalty against them multiple times. Now we

7 know they are a routine violator. That is one

8 way of looking at it.

9 So, we could develop a process by

10 which every time we find a one-time violation, we

11 make it public without charging any fine, we

12 could do that if it is effective and necessary to

13 the process.

14 So, I guess it is open for

15 consideration. But if it is a matter of

16 prohibited act as drafted right now, what I would

17 -- if I only took this as drafted right now, if I

18 just took the one prohibited act as drafted right

19 now, what I would have to do is find a routine

20 course of conduct by a person, find that person

21 to be routinely violating it, I would then make

22 that announcement and then also deal with the
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1 fact that who is dealing with them.

2 And so I wouldn't be observing someone

3 over time and be giving the hey, dealer X is

4 doing this. He has done this again. He has done

5 it again. I wouldn't be doing that because that

6 is not the way the case would be structured. 

7 Because this is what that says.

8 MR. PORTER: And I guess I understand

9 that. The part where I was at was when you have

10 the way the contractor/dealer is written, because

11 it is a one-time event, and that is a violation. 

12 So, you are not waiting for routinely. That is

13 what I was talking about.

14 MR. DENNIS: As a hypothetical, say

15 somebody comes in and they install this

16 inappropriately, that is a violation. You send

17 them a note. You say you have been in violation. 

18 They do it again. Now they are a routine

19 violator. Now, who can they buy anything from? 

20 Because anyone else who would sell it to them is

21 then going to be also violating.

22 MR. RAWALD: No, your point is
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1 correct, that is the whole purpose of this I was

2 thinking the other day is to stop sales of

3 someone that has been a routine violator.

4 But the question is whether there is

5 a mechanism for me to say we have seen your one6 time violation and the mechanism proposed by

7 people yesterday seemed to be the mechanism would

8 be assessment of a sole penalty or lesser, but at

9 least having that option. So, if I had the

10 ability to assess a civil penalty against

11 someone, I am not going to always assess a civil

12 penalty. You know I may send them a warning

13 saying this is your first time out there, buddy,

14 you may have made a mistake. Don't do it again.

15 If you do it again, you are going to

16 face a $200 penalty.

17 MR. DENNIS: Or you can't buy them

18 from anyone. Nobody will sell them to you

19 because we will put you on the list.

20 MR. McCRUDDEN: This is Charlie with

21 ACCA. Did we determine whether or not the cutoff

22 would be for all equipment or just the covered
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1 equipment?

2 MR. RAWALD: Right, so this is Doug. 

3 That is an open question that the DOE has promise

4 to give an answer to.

5 MR. McCRUDDEN: Okay, because

6 potentially you could be an ENERGY STAR only

7 contractor at that point, only selling 14 SEER

8 and above.

9 MR. PORTER: This is Steve Porter from

10 Johnstone Supply, just to give an opinion on

11 this, I mean I am not interested in cutting

12 people off and putting them totally out of

13 business. I mean if they violate it, they are

14 not going to get that equipment again is how I

15 viewed it. I mean Doug is going to go back and

16 look at it but I mean it is -- I mean I think

17 that goes above and beyond what we are trying to

18 accomplish, which what we are trying to

19 accomplish is not to have the illegal units -- or

20 the units in the wrong spot and protect

21 homeowners from making sure they get the correct

22 information about their energy and all of those
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1 things.

2 MR. RAWALD: This is Doug. And what

3 I heard yesterday is there is a wide area of a

4 way of interpreting this. And I think it is on

5 us to really give you guys some guidance on where

6 we are on this. Because it could be as simple as

7 you can no longer sell product that is below the

8 minimum standard of the region to that person to

9 as severe as you can no longer sell product

10 period to that individual, which would be parts. 

11 And to that nth degree, as I think John Hurst

12 recommended or not recommended but mentioned, hey

13 listen, that is as extreme as it could possibly

14 be.

15 So, my thought would be it would not

16 be the extreme approach but I can't say what the

17 Department's approach is because I never asked

18 the question. And so we need to go back and

19 think about that.

20 MR. EISNER: Doug, in terms of your

21 enforcement program, if it is not a prohibited

22 act, there is no penalty for what they have done
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1 if they have done it one time.

2 So, one typical case would be you get

3 a phone call that the person has installed a 13

4 SEER in the south. You do whatever you do. You

5 find out in fact they did it. If it was a

6 prohibited act, you would then follow up to find

7 out if they could explain how it happened, if you

8 want to do anything about it, if you want to

9 penalize them.

10 But if you can't penalize them, would

11 you simply keep that information and not proceed

12 any further after you found out it was a 13 SEER? 

13 Because there is nothing to penalize.

14 MR. RAWALD: Right. So, we haven't

15 thought through how we would deal with it if

16 there was no prohibited act because it is

17 unchartered territory. So, I think part of this

18 group could come up with other things that we

19 could do. 

20 So, in building a case of a routine

21 violator, it would seem to me that you would want

22 to -- I would want to follow up on that and see
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1 if it has been routine or not and then observe

2 that person's conduct over time and if it is not

3 routine based upon their records or other things

4 I find, to see if they do it again, and then

5 establish the case as routine.

6 But if it is a one-time violation and

7 it is not prohibited, then the question is, what

8 is the impact if I make a public pronouncement,

9 hey, this is a one-time act? If people aren't

10 prohibited for that act, if we don't have anybody

11 that prohibited act, that could have a very

12 negative effect on that person's business and it

13 may not be actually what folks intended. So, I

14 think we need to just think about that. So, by

15 making it a prohibited act, we are saying no, no,

16 no, we are saying that that one-time act is going

17 to need to be a public kind of act to be dealt

18 with.

19 MR. EISNER: In fact if I understand

20 you, if you go in and you look and you find out

21 that was the only time they did it, so it can't

22 be called routine, do you even have the authority
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1 to make a decision without first having a hearing

2 for which you can't impose the penalty anyway. 

3 Don't they have the right to come in and defend

4 themselves and say here is what happened?

5 MR. RAWALD: Right, so it depends. So

6 if it is a prohibited act and I said okay, it is

7 a one-time act and we decide that we are going to

8 go ahead and assess a civil penalty against that

9 person, we could then bring the action and they

10 could choose to have a hearing before an

11 administrative law judge or go to the federal

12 courts for it.

13 If it is not a prohibited act, then

14 there would be no process at all because there

15 would be no penalty they would be facing from the

16 Department.

17 MR. EISNER: And there would probably

18 be no public record without the adjudicatory

19 hearing, unless you did start a different

20 process.

21 MR. RAWALD: Unless we develop a

22 different process here. And that is the option. 
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1 So, people here could say well we want to develop

2 a different process by which if a one-time

3 violation well, it doesn't rise to the level of

4 being assessed a civil penalty, we think it

5 should be documented and made public in some

6 fashion. So, that is the alternative, as I see

7 it.

8 MR. EISNER: Any other comments or

9 thoughts on this?

10 MR. HUNGERFORD: Yes, this is David

11 Hungerford. Can you guys hear me?

12 MR. EISNER: Yes.

13 MR. HUNGERFORD: I think it is

14 important that we spend some time discussing how

15 enforcement would happen if a violation occurred

16 or communicated and discovered. But I think a

17 part of this question about whether the

18 responsibility for violations falls to these

19 different parties comes in setting up a set of

20 incentives that, I guess may align people's

21 incentives and disincentives so that their

22 natural action is to avoid violating this law.
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1 And to that extent, it seems like the

2 people in the middle of the supply chain who have

3 the most incentive, it seems, to violate the

4 rules by buying a group of 13 SEER, a shipment of

5 13 SEER boxes and having them delivered to

6 Chicago and then shipping them to California or

7 to Texas, that they ought to have some skin in

8 the game.

9 The prosecution of a violation or an

10 enforcement action is going to be a very, very

11 rare event, honestly. And it seems that just

12 structuring the incentives is the first step, so

13 that if there is an incentive to make a better

14 profit by moving this device into a place where

15 it is not supposed to be, then there is also a

16 disincentive to do that. And if you get caught,

17 you will get a fine.

18 It is not unlike enforcement of speed

19 limit laws. On the interstate in certain areas,

20 they are not very much enforced and people drive

21 at 85 to 90. In areas where it is not as safe or

22 the local government wants to make a little
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1 money, it is more heavily enforced and people

2 know that and they slow down.

3 A good rule will structure incentives

4 so that it encourages proper behavior and

5 discourages the other behavior. And that is my

6 general sense of this.

7 MR. EISNER: Other comments on this?

8 So, we leave this to the next meeting

9 or do we want to talk about alternatives if this

10 is not acceptable to a significant number of

11 members of the group?

12 Do we want to develop an alternative

13 approach that would be satisfactory?

14 MR. DORIA: This is Jordan with

15 Ingersoll Rand. I just want to maybe reiterate

16 the way I read the statute on prohibited act,

17 Doug correct me if you don't agree with this, I

18 would contend that if we stopped our work today

19 and had no definition of the word violate, that

20 statutory requirement would be unenforceable. 

21 That is my understanding.

22 MR. RAWALD: Well, I think what would
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1 be more likely to happen would be that DOE would

2 fill in the gap and you would have to settle with

3 what we do.

4 MR. DORIA: Correct, yes. But absent

5 any definitions by us, by you, by somebody, it

6 would be unenforceable.

7 So, forgetting for a second the

8 prohibited act piece, I also think getting to the

9 different parties that have a lack of comfort

10 with extending the prohibited acts, which I fully

11 understand, I think it is very hard to get behind

12 a prohibited act, unless you actually know what

13 the violations are.

14 So, perhaps if we move in a step-wise

15 manner, get comfort with what amounts to a

16 violation and then determine whether or not that

17 violation should also be a prohibited act seems

18 like a reasonable path forward. 

19 That is not abandoning saying there

20 could be other prohibited acts but to me it seems

21 like we could move in a stepwise manner here. It

22 is just a thought.
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1 MR. DENNIS: I think that that makes

2 a lot of sense because I think the violation is

3 the easier threshold and I think that all three

4 of those things -- I still don't understand why

5 retailers/resellers can't be a violation just

6 because it is written that way but it could be a

7 prohibited act. I think a prohibited act is even

8 a further jump away from that language than

9 making it a violation.

10 But I don't know that the concern

11 would be as much with having, at least with my

12 organization, with having these things be

13 violations because I think that the language

14 indicates that they are.

15 So, I think that the stepwise approach

16 probably gets us at least somewhere instead of

17 nowhere.

18 MR. EISNER: Other thoughts or

19 reactions?

20 MR. RAWALD: I am content and, once

21 again, that is the course of action I was trying

22 to take yesterday until we kind of reversed to
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1 try and define prohibited acts.

2 So, if we want to start off and say

3 are these things violations in the context of

4 that manufacturer prohibited act that we have, I

5 think that is a fruitful discussion. What I want

6 to make clear, Keith, is that the statutory text

7 for that prohibited act that we have is limited

8 to three parties, distributor, contractor or

9 dealer. That is what we are talking about with

10 that. That statutory prohibited act are those

11 three parties. That is very clear.

12 Now, DOE believes we can interpret the

13 statutory text in a way to create prohibited

14 acts, if necessary, to make an effective

15 enforcement plan. But when we are talking about

16 this one statutory prohibited act we have, the

17 three parties in our numerator are the ones we

18 are talking about. That is the point I am trying

19 to deliver here. Retailers and resellers are not

20 in that.

21 So, we are talking about what the

22 violation would be vis-a-vis those three named
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1 parties that the statutory prohibited act exists

2 already for. And if we don't define them here, I

3 will then fill in the gap and the rule will be

4 promulgated.

5 MR. DENNIS: I guess a solution to

6 that might be if you think that you can add

7 prohibited acts, add a prohibited act it is the

8 exact same for retailers and resellers in it to

9 the manufacturers and just add that one thing,

10 and then make that a violation.

11 Or, I mean if you can add prohibited

12 acts, I don't see why you can't add

13 retailers/resellers to the prohibited act list

14 but you could add all these other things to

15 prohibited act. There is a solution there.

16 MR. RAWALD: Right. Keith, the group

17 can do that. Unfortunately, you are the first

18 guy who said to me I don't think DOE can do that.

19 So, if DOE, if the group wants to

20 suggest prohibited acts, we can suggest adding a

21 more fulsome prohibited act that would be dealing

22 with retailers and resellers. But if we want to
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1 focus in first on the statutory text we have and

2 defining that, then we should focus on the

3 statutory text we have, which doesn't have

4 additional parties in it. And then if we want to

5 add to it, then we can. So, I am trying to go

6 down the path that Jordan described, which is

7 take what we have and let's define the violations

8 as we have.

9 And then if we decide that it is

10 necessary to add parties to that, then we can do

11 that.

12 MR. MELCHI: Jon Melchi with HARDI. 

13 One of the things that we have been working on is

14 to find a -- there is no definition for

15 contractor/dealers/installers and that is what

16 part of this group is working towards. Correct? 

17 And I wonder within that context because if maybe

18 one of those, I think John from Lennox tried to

19 do this yesterday, which was maybe lump the

20 reseller of that or retailer in with those

21 definitions. I don't know, and I am probably

22 saying this inartfully. We have been at this for
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1 a little while. But I think from hearing, at

2 least from my members, there is a thought that a

3 lot of the resellers are oftentimes contractors

4 or dealers. So, in that sort of line of

5 thinking, if it is indeed a contractor that buys

6 from a Lennox and then turns around and said

7 doesn't install the product but puts it online, I

8 am just trying to think we would be classifying

9 them as a contractor because that is where they

10 purchased the product or a retailer or reseller. 

11 And in the context of us maybe defining these, is

12 there a place for that?

13 MR. RAWALD: Right. This is Doug. I

14 think that we do have the ability to define those

15 terms because they are undefined terms broadly

16 enough to include those people that Steve has

17 referred to as the internet resellers. We just

18 need to come to an accord of how to do that.

19 We had the proposed definitions that

20 we handed around this morning and that we emailed

21 out last week, which gives us a starting point.

22 I, just sitting outside the industry,
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1 I don't know if the definition, as defined, cover

2 those folks. And so we need the advice of the

3 folks in the chain to say no, no, no, the way you

4 have the definitions laid out would incorporate

5 the guy who is selling on the internet. And that

6 is why I need your advice on this point.

7 MR. DORIA: So, this is Jordan. I am

8 looking at this document I think we all have in

9 front of us. Under dealer, second bullet, the

10 entity that that purchases the equipment for the

11 purpose of selling to the consumer. That sounds

12 like what we are saying with an internet reseller

13 and a retailer. No?

14 Doug, this is Jordan Doria. This is

15 a question. Because there is a definition though

16 of retailer, could -- to the extent that a

17 retailer for the purposes of what we are talking

18 about here meet our created definition of a

19 dealer, how does that intersect with the existing

20 definition of retailer that exists, I think, in

21 statute?

22 MR. RAWALD: Right. Well, I would
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1 have to confer that with the lawyer but there is

2 nothing on the EPCA definition of retailer that

3 stops that person from being something else, if

4 we were to define it. So, there is nothing

5 preventing that.

6 The only thing that is preventative is

7 the distributor definition explicitly calls out

8 that manufacturers and retailers cannot be

9 distributors. But nothing about the retailer

10 definition would stop them from wearing another

11 hat as well. That is my understanding but the

12 lawyers can contradict me after some research but

13 I think we can proceed under that assumption. I

14 think that is a pretty safe one.

15 MR. EISNER: Do we want to try that

16 now? Do we want to try to merge these into the

17 statutory terms?

18 MR. RAWALD: Is everyone looking at

19 me? Because I am game for that. I mean, listen,

20 I am up for that. We have a proposed definition. 

21 We have a chart with some characteristics of

22 these folks. I want to make sure the proposed
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1 definition includes who you think it needs to

2 include so those people could have a

3 responsibility under the statutory prohibited act

4 we have before us.

5 So, if you want to make sure that the

6 term distributor, dealer or contractor includes

7 the internet reseller and the retailer, let's

8 make sure the definition does that. Let's do

9 that. I think it is the easiest way to get to

10 Keith's solution. He is raising his thumbs up

11 there. He is supportive of this.

12 MR. EISNER: She's ready to go. Does

13 anyone want to suggest something?

14 You have got the term distributor on

15 this sheet that was handed out. 

16 MR. RAWALD: Right. So, the terms we

17 are trying to define are dealer, contractor. 

18 Those are the terms we are trying to define and

19 possibly installer. So, the distributor and

20 retailer are defined by EPCA. So, we already

21 gave you those.

22 MR. EISNER: Okay, so all the rest has
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1 to be under contractor.

2 MR. RAWALD: Or dealer.

3 MR. EISNER: Or dealer. So, put the

4 definitions -- 

5 MR. DENNIS: The one under dealer

6 after the second bullet put a comma, which

7 includes --

8 COURT REPORTER: I'm sorry, sir, I

9 can't hear you.

10 MR. DENNIS: Why not under dealer,

11 under the second bullet, just put comma, which 

12 includes retailers and resellers, just to be

13 explicit?

14 I mean I think that there is wiggle

15 room in there to say that that definition as

16 written probably does include them.

17 MR. DORIA: So, this is Jordan with

18 Ingersoll Rand. The question, unfortunately, I

19 think John is now gone, but I believe he has said

20 that in many instances a retailer does not

21 actually purchase the product.

22 MR. RAWALD: What he said was they
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1 don't take delivery of it in the case of air

2 conditioning, unlike other big box products. So,

3 whereas, the refrigerator would arrive at the

4 hand of the retailer, the big box store range is

5 just simply a drop shipment of some sort, where

6 they are not involved in actually receiving

7 delivery of the product.

8 So, I am not sure that is actually

9 something that gets them out of the retailer but

10 it is really irrelevant. So, if we can describe

11 what the retailer function is in the air

12 conditioning world, such that it would fit within

13 the ambit of the dealer definition, then we would

14 be covered. So, that is what we really need to

15 do. But once again, I am relying entirely upon

16 you guys as the market members to tell me how to

17 do that.

18 MR. EISNER: What we worked on in

19 terms of the conduct was provide a product to end

20 users. Is that an adequate description of the

21 retailer and the reseller? You add that to one

22 of the three.
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1 MR. DORIA: This is Jordan with

2 Ingersoll Rand. Is there a difference between

3 consumer and end user?

4 MR. RAWALD: So, I guess the concern

5 is when you are talking about these large tract

6 housings and so the product is delivered into a

7 home that is unoccupied, is there really a

8 consumer there or as an end user? So, how do you

9 really define that term?

10 I think that is possibly one of the

11 areas that are of concern. If there is no actual

12 consumer there when that product is delivered, so

13 if it is just being installed into an empty home

14 --

15 MR. PORTER: This is Steve Porter with

16 Johnstone Supply. The reason why we put end user

17 in was also to capture daycare, capture all types

18 of other entities. So, it is whether a homeowner

19 is not in that home, the contractor or somebody

20 owns that property. Somebody owns that entity in

21 the units there.

22 So, it is not the end user. I mean
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1 end user encapsulates, it brings in everybody

2 that you need to bring in is why I think end user

3 is appropriate.

4 MR. EISNER: So, is everybody happy

5 with adding that and which one do we add it to,

6 dealer?

7 MR. DORIA: Jordan with Ingersoll

8 Rand. I think it is the second bullet under

9 dealer and, instead of saying selling to the

10 consumer, I think it is selling to the end user. 

11 I think that would cover the two, essentially the

12 two broad forms of the term dealer that we care

13 about here.

14 MR. EISNER: Okay. So, if that takes

15 care of retailers and resellers, and if we got

16 everything covered, we have got contractor. We

17 have got dealer. Distributor is already defined. 

18 Retailer is already defined. So, have we covered

19 everything?

20 MR. RAWALD: So, this is Doug. So,

21 everyone understands what is going on with the

22 document, so we have proposed definitions, which
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1 are those are the simplified definitions that we

2 came up with as a group after listing out in the

3 area below the different characteristics we felt

4 that were endemic to each one of these groups.

5 So, what we need to decide is do we

6 need a more robust definition than the ones that

7 we initially proposed that incorporates more of

8 the characteristics we have in these charts

9 below.

10 I am not going to pull out a table as

11 a definition. So, I need to have -- we need to

12 make sure the definition we are proposing

13 incorporates all those characteristics we want it

14 to incorporate. That is where we should start

15 here with this.

16 MR. WHITE: This is Chuck White, in

17 the proposed definition of a dealer or

18 contractor, it is a person who sells to and/or

19 installs. So, if a retailer could sell it but

20 not install it they would be captured by that. A

21 reseller would be similar. They don't

22 necessarily have to install it but they sold it. 
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1 And whether they took delivery or not is

2 irrelevant. They sold it.

3 MR. ROCKY: So, this is Bryan Rocky. 

4 I believe the proposed definition text matches

5 the descriptions in the intent of the discussion

6 notes in the boxed area and that we should

7 proceed with acceptance of the proposed

8 definition as shown.

9 MR. EISNER: Repeat again what you are

10 suggesting we adopt. We have got the definition

11 ideas.

12 MR. ROCKY: So, this is the discussion

13 of we take a vote to accept the proposed

14 definition, as shown on the screen, that states

15 that a dealer or a contractor is a person other

16 than the manufacturer/distributor who sells to

17 and/or installs for an end user a residential

18 central air conditioner covered by regional

19 standards. An installer is a person that

20 installs a residential central air conditioner

21 covered by regional standards. A contractor,

22 dealer, or installer may perform any of the
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1 functions defined above.

2 MR. EISNER: All right, anybody want

3 to comment on that or should we just see if there

4 is support for it?

5 MR. RAWALD: So, what I can commit to

6 is bringing the definitions back to the

7 Department to the lawyers and how to make sure

8 they are comfortable with them. I mean I think

9 that as long as the industry is saying this

10 covers the groups that we want to cover, I am

11 comfortable saying that sounds good to us. But I

12 want to make sure that they are agreed before I

13 vote formally on that.

14 MR. GIBBONS: This is John from

15 Carrier. And I have amnesia when it comes to why

16 did we change -- I thought we had residential

17 product covered by regional standards. Then why

18 did we change to central air conditioner? Are we

19 just limiting it to central air?

20 MR. RAWALD: So, people -- this is

21 Doug. What I recall is --

22 MR. GIBBONS: You have got heat pumps
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1 and you have got small package products.

2 MR. RAWALD: Right. So people really

3 want to keep this cabined to the residential air

4 conditioner split systems and single package that

5 we are talking about here. They didn't want to

6 do anything that would have unintended

7 consequences, in case the Department develops

8 regional standards for something else. They

9 really wanted it to keep it cabined to that

10 particular instance.

11 MR. GIBBONS: Okay. And again, I

12 mentioned I had amnesia.

13 MR. RAWALD: No, I think it is an

14 appropriate question to ask because people are

15 listening online that may not have been there for

16 that past conversation as well.

17 MS. SHEPHERD: This is Amy Shepherd. 

18 I actually had a question. So, what are the

19 functions defined above? Is that installing or

20 selling? So, that second sentence of installer.

21 MR. RAWALD: Right. So,

22 unfortunately, Karen has left but she is the one
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1 that proposed this language to kind of save us. 

2 And you can wear multiple hats.

3 If you are an installer, you can also

4 be a contractor. So, there may be a more artful

5 way of saying that, especially because I didn't

6 really know where we would put that. So, I mean

7 we would have a defined term for dealer or

8 contractor. We have a defined term for

9 installer. And then it had this other language

10 kind of wandering on the CFR, so I want to be

11 able to put it in somewhere artfully.

12 And if we could come up with an idea

13 for that, that would fulfill this intent because

14 I don't think this is it. But that is what I

15 think she meant there.

16 MR. EISNER: And do we want to say

17 anything about retailers or resellers? For

18 example, this sometimes refers to retailers or

19 resellers are other names used for this group or

20 something like that.

21 MR. ROCKY: This is Bryan. I think we

22 have covered that as a language relative to what
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1 a dealer is in the discussions. It covers that.

2 I think at this point we, as a group,

3 can decide yes or no this is a definition that we

4 want to put forward so that Doug can take it to

5 the Department and let his group and the lawyers

6 and everything else decide if this is an

7 acceptable definition. So, I think this is a

8 point where we vote either yes or no.

9 If the point is no that this is not

10 acceptable, we open it up back and we can go

11 through the next 45 minutes or whatever to decide

12 what the definition should be. So, this is the

13 process. I would like to call for a vote on

14 either accepting or not accepting that

15 definition.

16 MR. WHITE: This is Chuck White. I

17 second that.

18 MR. EISNER: Okay. Does anybody

19 object to this language? No objections. So, we

20 have got a unanimous consensus at this time on

21 that.

22 MR. RAWALD: Okay, so what I will do
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1 is I will take these definitions back to the

2 Department and make sure everyone is content with

3 them and then bring them back. But I think it is

4 a good starting point.

5 So, as long as everyone is comfortable

6 with the fact, and it seems like they are, that

7 this would cover all of the entities we want. 

8 So, now we know who the playing field is that we

9 are talking about for that prohibited act. So,

10 my question is, do you want to reengage on the

11 routine violator at this point? I mean, whatever

12 you feel you want to come back to.

13 MR. BALLO: This is Tim. I think it

14 would be helpful to go back to the slide of what

15 we had initially envisioned as prohibited acts

16 and are now thinking maybe about as violations to

17 see how the definitions need to fit into that

18 slide.

19 MR. RAWALD: Okay.

20 MR. DORIA: So, this is Jordan,

21 looking at the contractor dealer bullet, it is

22 solely right now about installing a product. And
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1 if a dealer is an internet reseller, they are not

2 installing.

3 So, Doug, is this where we use that

4 unclear legal phrase, caused to be installed? I

5 don't know. I'm just sort of making it up. I

6 don't know what it is we need to insert but we

7 need something beyond just installed if dealer is

8 now internet resellers.

9 MR. RAWALD: Right. So, I like that

10 term because I am a lawyer and I like those kind

11 of fun words. The other idea which John Hurst

12 put forward and was kind of shouted down a little

13 bit yesterday was combining that provide and/or

14 install. So, which may be a little bit clearer

15 and easier for the average person to figure out,

16 as opposed to reading through my legal muckety

17 muck.

18 So, I think those were kind of the

19 options we have before us.

20 MR. ROCKY: So, this is Bryan. So, I

21 would suggest that the prohibited act terminology

22 matches the proposed definition where we just
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1 said sells to and/or installs.

2 MR. RAWALD: Okay.

3 MR. ROCKY: Trying to keep it

4 consistent, and/or installs.

5 MR. RAWALD: Installs for and

6 knowingly sells.

7 MR. ROCKY: For an end user, et

8 cetera. And I think the rest of it is --

9 MR. RAWALD: Right. So if we are

10 incorporating that, it is installs for an end

11 user, a -- after end user. So, make that

12 singular. A residential central air conditioner

13 covered by regional standards with the knowledge

14 that that product -- with the knowledge that that

15 product shall be installed in violation of the

16 applicable regional standard.

17 It is very wordy. Now, that is always

18 good. Exactly.

19 MR. DORIA: This is Jordan with

20 Ingersoll Rand. I mean we have knowingly and

21 knowledge, referring to what I interpret to be

22 fundamentally the same actions. It seems we
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1 could eliminate one of those.

2 MR. EISNER: We talked about that

3 earlier. The statute uses it also.

4 MR. DORIA: Right. But I am saying

5 using it twice in this one act.

6 MR. EISNER: I think the idea was to

7 keep the language consistent in each definition

8 and the first one is statutory.

9 MR. RAWALD: Right, so the purpose

10 behind that is there is the knowledge of your

11 sale and the knowledge of where it is going to

12 be. So, you both knowingly sell the product to

13 the person or install the product, so you know

14 you are doing that thing. And you also have

15 knowledge that the product has a regional

16 standard.

17 And the reason why this would be

18 significant it would be, and this is in defense

19 of the contractors, where it would be they are

20 going to knowingly install a product but if they

21 install a product we don't want them to be held

22 responsible for that lack of knowledge -- they
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1 wouldn't have knowledge of products in violation. 

2 That is why there is two knowinglys. 

3 MR. ROCKY: This is Bryan. 

4 Retailer/resellers are now somewhat redundant and

5 should be removed. Also the bullet to

6 distributors.

7 MR. RAWALD: Well, I want to not go so

8 fast with the distributor bullet because there is

9 still a party that could be in some way violating

10 the regional standards. So, we need to

11 understand what their violation would be.

12 So, is their violation going to be

13 sell to an end user? Because they are never

14 going to be selling to an end user. Right? So,

15 in order for there to be some sort of fulfillment

16 of the language in the statute which says that a

17 distributor could be the person that is violating

18 it. We need to define the violation vis-a-vis

19 the distributor.

20 MR. EISNER: Any thoughts on that?

21 MR. ROCKY: This is Bryan. So, I

22 think this dates back to the discussion of what
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1 is a violation for a distributor.

2 MR. EISNER: This is not agreement

3 that we will still keep this in for distributors. 

4 It is just changing the definitions to conform

5 with what we did earlier. I thought that is all

6 we were doing in this exercise.

7 MR. RAWALD: Right. So, right now, we

8 are looking at what would be a violation, vis-a9 vis the defined prohibited act in the statute. 

10 So, Bryan's question is the exact question on the

11 table. What is a violation by a distributor? 

12 And Amy had put forward this language as defining

13 what a violation would be yesterday, as a

14 starting point and I would be interested to hear

15 other people's thoughts on that.

16 MR. EISNER: This is now for the

17 purpose of you taking it back and talking to

18 everybody about what is acceptable and what is

19 not acceptable.

20 MR. MELCHI: I thought I would switch

21 mikes here. Jon Melchi from HARDI. I wore out

22 that one.
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1 I think in the context of violation

2 via distributor, this language seems acceptable

3 to us in the context that it helps define how the

4 manufacturer would violate.

5 MR. DENNIS: Does the slide need to be

6 cleaned up so that the headers doesn't indicate

7 that those are both prohibited?

8 MR. RAWALD: Right. I think where it

9 says prohibited act, you would want to say

10 violation instead.

11 MR. DENNIS: Yes, that is just for the

12 second. It would be -- yes, right.

13 MR. RAWALD: Right. I think we are

14 all set where we are.

15 And Laurie is doing a good job of

16 updating the slides to reflect that the various

17 prohibited act versus the violation we discussed

18 is a violation.

19 MR. FERNSTROM: This is Gary. So, by

20 writing it this way, are we suggesting that

21 violations by distributors or contractors/dealers

22 are not prohibited acts and, therefore, they are
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1 not subject to penalty?

2 MR. RAWALD: So, we are not saying

3 that exclusively. We are defining violation and

4 we have tabled the question of prohibited act so

5 you are productive on this discourse.

6 So, we could separately decide that we

7 have prohibited acts, which these violations

8 would constitute a prohibited act. So, what we

9 are saying is these are the violations in terms

10 of the manufacturer defined prohibited act we

11 have.

12 MR. FERNSTROM: Thank you.

13 MR. EISNER: Okay, other thoughts on

14 this? Acceptable?

15 MR. RAWALD: So, the one concern I

16 have from my point of view as the Department

17 would be so we have to think about how these

18 terms work together. So, if the prohibited act

19 by the manufacturer is to -- it is what it is. 

20 It shall be unlawful for any manufacturer or

21 private labeler to knowingly sell a product to,

22 in a distributor context, to a distributor with
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1 knowledge that the distributor routinely violates

2 any regional standard.

3 So, it would then be the violation

4 would that he sells to someone who routinely

5 sells to the contractor/dealer.

6 So, I need to find the distributor

7 routinely sells to someone and then the

8 manufacturer has to observe him doing that

9 routinely. So, it is now a double burden on the

10 Department as saying okay, we have got to find

11 that the distributor is dealing with someone who

12 routinely violates it and the distributor

13 routinely does that. So, be it with multiple

14 dealers or multiple times with that same person. 

15 So, that is kind of the double layer we are

16 putting on the Department, as far as finding a

17 violation vis-a-vis the distributor here.

18 MR. DORIA: This is Jordan with

19 Ingersoll Rand. I appreciate that and I think

20 that is an important point. Is it possible to

21 address that by potentially differing thresholds

22 around what is routine for the different parties,
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1 as opposed to either modifying or adding

2 violations?

3 MR. RAWALD: So, I think that if we

4 define routine differently, it is going to become

5 extremely confusing. Because that is going to be

6 hard to enforce.

7 So, I would rather not do that. I

8 would rather keep it similar. So, I would rather

9 streamline the distributor prohibited acts such

10 that it works more in concert with this about

11 putting a double layer on there. 

12 I don't think that is what we intend.

13 MR. PORTER: Doug, this is Steve

14 Porter, Johnstone Supply. I mean that was my

15 concern about that communication level all the

16 way up the channel when there is a violation. I

17 mean it should be all at one time because we are

18 just holding temporarily for a period of days

19 product that ends up in the violation. So, we

20 are just in the stream as a distributor, pulling

21 the product, selling the product.

22 So, if we all have that communication
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1 at the same time, then you are not really a

2 double check there. Because as long as we have

3 some agreement that hey, we have seen this two or

4 three times or whatever, and I don't think we

5 need to put a number on it because I think there

6 needs to be that whether you want to be able to

7 do that warning or whether we want to have some

8 freedom here and wiggle room, we know they look

9 like honest mistakes here, we know it was honest

10 mistakes because they have communicated I'm not

11 going to do this again I didn't know or whatever

12 it is.

13 I think that as long as we are

14 communicating when you find the violation and we

15 are all pinged on the same message on the entity,

16 then we all have line of sight to it. And that

17 would make everything happen at the same time. 

18 And with today's communication vehicles and the

19 emails and notices, I mean, it is like that.

20 MR. RAWALD: I get that. I hear what

21 you are saying.

22 MR. EISNER: I would ask under the
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1 construct of the statute what are we saying when

2 we say it shall be unlawful on the second and

3 third where it carries no penalty, whereas in the

4 first it is a prohibited act when we say it is

5 unlawful? We might have to reword those but I

6 will leave that to the group to decide.

7 MR. RAWALD: Right, so if we are going

8 to just limit the violation, we would take out

9 the it shall be unlawful and say it would be a

10 violation for any distributor to knowingly sell a

11 product.

12 MR. EISNER: Well, then we say that it

13 would be a violation to routinely violate. Yes,

14 actually, that would work.

15 That will still raise the question of

16 so what.

17 MR. WHITE: So this is Chuck White. 

18 The way I see this structured at the moment, we

19 have a prohibited act and then we have, which we

20 deal with routine violators, so here is the

21 violations and now you can start counting them.

22 So, if a distributor does it once,
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1 that is one. Now we see it twice. Now we see it

2 three times. At some point, you could make an

3 evaluation this was routine. So, you can go

4 upstream with it.

5 So, wouldn't similar to the

6 contractor, what you are looking for is did

7 somebody do it. Did the distributor do it once

8 or that the distributor knew of a contractor that

9 did it once.

10 So, take the routinely out of

11 distributors?

12 MR. RAWALD: Right. So, that is what

13 I would prefer. As long as it is not a

14 prohibited act. We are not talking about

15 prohibited acts right now. We are talking --

16 MR. WHITE: That seems logical.

17 MR. RAWALD: To me, I would prefer it

18 to read without that. That the entity will --

19 and I would actually will install the product in

20 a violation of the regional standard.

21 MR. BALLO: This is Tim. I don't

22 think it can just be installed because they could
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1 be selling to a dealer.

2 MR. RAWALD: Right. You are right,

3 Tim. That's a good point.

4 MR. RAWALD: So Neil, the point of

5 what -- I am just really concerned because a lot

6 of people are actually leaving. So, is there a

7 quorum point for this? We are down to ten, maybe

8 less soon.

9 MR. BALLO: You can really get things

10 done.

11 MR. RAWALD: Right, if it is just me

12 alone in the room, we can get a lot done.

13 MR. PORTER: Yes, you just changed

14 something that I am going to have to think about

15 here, too.

16 MR. RAWALD: Right, I got that and I

17 don't want to do it without you.

18 MR. PORTER: And I guess Chuck timed

19 that as I was leaving the room.

20 MR. FERNSTROM: This is Gary. Even

21 though our numbers are dwindling, I think we are

22 getting much closer. This wording provides some
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1 protection for the manufacturer because they

2 don't necessarily know where this stuff is going. 

3 The distributor probably has a better idea where

4 it is going but it doesn't necessarily know

5 either, unless there is some sort of routine

6 violation going on by the purchaser. The

7 contractor/dealer knows certainly every time

8 whether a violation is occurring.

9 So, in terms of the level of

10 responsibility at each stage in the market chain,

11 I think we are pretty close here with what seems

12 reasonable.

13 MR. EISNER: So, does the group want

14 to continue with so few people here? Do you

15 think we can get something done?

16 MR. RAWALD: I think we could get

17 something done. It is a question of the

18 legitimacy of our accomplishing that without them

19 being here and the anger that we might feel in

20 three weeks when they come back and see what a

21 mess we have made. So, that is the question we

22 have to ask ourselves.
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1 MR. MELCHI: This is Jon Melchi with

2 HARDI. Just seeing that I believe we have lost

3 the majority of the manufacturers, including the

4 representatives from AHRI. I think it would

5 probably be best to maybe punt until we are -- I

6 don't normally speak for our manufacturer

7 friends.

8 MR. EISNER: So, John, just to

9 identify, we still have five of seven

10 manufacturers here.

11 MR. MELCHI: Oh, I'm sorry. I was

12 just counting the chairs. Sorry.

13 MR. FERNSTROM: So, this is Gary. We

14 don't have enough people at this point to take an

15 action, do we? I mean --

16 MR. EISNER: I mean, again, the way we

17 have been proceeding on almost every one of these

18 issues, if not all of them is to say is this okay

19 for now. You know we are going to go back and

20 have to look at this whole thing and see the way

21 it fits together, just like these got modified

22 after we worked on the earlier definition.
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1 MR. FERNSTROM: So, thank you, Neil. 

2 I think that is a good way to proceed. And this

3 is okay for now with me.

4 MR. EISNER: Okay. I mean you guys

5 could decide. You know there is however many

6 hours of the meeting, you could decide no, we are

7 going to impose all these new things on people

8 and get a unanimous vote. But if everybody is

9 ready to leave, then let's do that.

10 I'm going on vacation Saturday, so I

11 am ready to start early. All right? Let's

12 adjourn then.

13 Well, that is what I am saying, does

14 anybody want to continue talking?

15 MR. DORIA: This is Jordan with

16 Ingersoll Rand. I mean I think there was a

17 discussion by Harvey, who is now gone, too, of

18 action items and just making sure that we are

19 doing as much as we can between now and the next

20 meeting.

21 I mean I think there was one action

22 for party members to talk about this violation
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1 and make sure it was right or that comports.

2 MR. EISNER: There were a whole bunch

3 of items. In fact, Doug alone, I think, assumed

4 about ten of them. Maybe what we should do is

5 put together a list circulated to everybody and

6 make sure we covered everything we thought we

7 should and then people can get to work on it. Is

8 that okay?

9 MR. RAWALD: Yes, let's do it while we

10 are all in the room here, so everyone knows,

11 everyone has on their list what they have.

12 So, I have the AHRI is working on the

13 label, a possibility of the EnergyGuide label

14 recommendation to FTC. So that is what they are

15 working on for us.

16 So, I have that the manufacturers --

17 MR. EISNER: Wait and let Laura catch

18 up with you.

19 MR. RAWALD: I have the manufacturers

20 are going to be working on some proof of concepts

21 for the nameplate or the nameplate located near

22 the nameplate, which would discuss the exclusion
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1 of the sale from the area in which it could not

2 be sold in.

3 The distributors are going to bring

4 back the idea of the definition that we have now

5 put forward for a violation regarding

6 distributors to their membership and talk about

7 that.

8 So from a DOE point of view, I am

9 working on getting some clarity regarding the

10 term "product" in this prohibited act, as defined

11 by the statute.

12 I am also going to get the

13 Department's opinion on the definitions that we

14 have proposed and voted on as being acceptable to

15 the group.

16 I am going to put forward the

17 violations that we have described for both the

18 manufacturer and the -- I mean for the

19 distributor and for the dealer and contractors

20 for consideration by the Department.

21 I am going to present the issue that

22 there are some people in the room who want there
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1 to be a prohibited act carrying a civil penalty

2 versus some that do not.

3 I will be reflecting the fact that the

4 manufacturers never stated a definitive position

5 as a group on that issue. It seemed that the

6 distributors had a definitive position and the

7 advocates had a definitive position that were

8 diametrically opposed to one another but the

9 manufacturers seemed to be leaning away from

10 taking a position at the moment. They were

11 really just listening to what everyone else was

12 saying, with Jordan and Jon voicing an opinion

13 but not being definitive on yes or no.

14 And possibly thinking about the

15 manufacturers are going to come back with

16 possible alternatives to having civil penalty17 producing prohibited acts that would be sticks

18 and carrots in this situation.

19 MR. EISNER: You were supposed to do

20 something, I'm not sure if it is up there

21 already, an authority to require fixes, since you

22 don't currently do this when you find a product -
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1 -

2 MR. RAWALD: Right. So, I said the

3 lawyers would look at the question of whether we

4 have legal authority to require performance by

5 the contractors to replace or make good on an

6 installation that was not in compliance with the

7 regional standards.

8 MS. NOLL: You were also going to work

9 with the distributors and contractors on what

10 would be required --

11 MR. RAWALD: Right, record retention.

12 MS. NOLL: -- in a record retention.

13 MR. RAWALD: Right, I was going to

14 send around some language to them about record

15 retention. And I was going to come back to you

16 with the Department's position on the length of

17 time for record retention.

18 MS. NOLL: And I think right now in

19 our slide deck, we are showing record retention

20 as a prohibited act. Is that as well going to be

21 something that we are going to determine?

22 MR. RAWALD: So, I can ask the
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1 Department's opinion on that. What I heard is

2 that once again, there is divergent opinion. So,

3 whereas the advocates thought I was helpful, the

4 distributors were wholesale against it. The

5 manufacturers remain agnostic because they

6 already have, they -- they won't be able to add

7 to that thing.

8 And I never heard anything from the

9 contractors one way or the other about how they

10 felt about adding that prohibited act.

11 MR. EISNER: There is an issue about

12 you checking into or thinking about if training

13 is not offered, whether you can then factor that

14 into routine violations.

15 MR. RAWALD: I don't have that an open

16 item, no, because I think we resolved that, which

17 is that we are not going to put that in the text

18 of this and it something I would just consider.

19 MR. FERNSTROM: This is Gary. I would

20 just like to observe that if not maintaining

21 records is not a violation or a prohibited act,

22 it would make it pretty difficult to achieve
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1 enforcement. Because when you went to go find

2 what you are looking for, you might well receive

3 the response sorry we haven't got the

4 information.

5 MR. RAWALD: Yes. No, Gary, I agree. 

6 And that is the position I heard also from Harvey

7 yesterday. I think it is pretty consistent. 

8 And I am lumping you in with them when I say the

9 advocates because I think you are kind of aligned

10 with them on these particular issues. And I

11 don't mean to speak ill of you otherwise. I

12 didn't mean to imply that.

13 MR. DENNIS: In that case, there was

14 the subpoena authority, though.

15 MR. RAWALD: Right, as an alternative

16 to the civil penalty. That is absolutely true. 

17 And don't worry, I am going to make that fulsome

18 discussion.

19 MR. FERNSTROM: So with respect to the

20 subpoena authority, if they haven't got the

21 record, they haven't got the record. So, you can

22 subpoena it and if isn't there, you are not going
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1 to get it.

2 MR. RAWALD: Right, I am just going to

3 have an injunction that is going to be

4 unfulfilled, if I have to go to a court and get

5 it.

6 MR. ROCKY: So, this is Bryan. Doug,

7 one of the other things I saw in the notes was we

8 had the discussion on the interplay of this

9 enforcement with state standards or state

10 enforcement. So, I think that is in your court,

11 Doug.

12 MR. RAWALD: What I promised to do was

13 to go back and get some research going on this

14 issue. So, what I am also going to do is have

15 folks start working on what would be some

16 proposed ideas for a trifold/web page concepts

17 and bring that back for consideration.

18 And the rulemaking folks are going to

19 start at least putting together a skeleton of

20 what a rule would look like so we could spot any

21 of the issues that we want to bring to you folks

22 and say hey, this is how this is going to go,
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1 with the hope that we are trying to jumpstart

2 this as much as possible so that when we come up

3 with an opinion to add or subtract, we can get

4 the rule actually moving quickly.

5 MR. EISNER: Anybody see anything else

6 that should be on the list? Do you remember

7 anything else?

8 As long as he is here, anybody got any

9 assignments, other assignments they want to give

10 Doug?

11 Nobody feels a bit sheepish about

12 that, huh? Give Doug more work.

13 MR. RAWALD: You have to wonder what

14 I did bad to deserve this job, who I made angry.

15 MR. EISNER: Okay, anything else? All

16 right, see everybody in a few weeks.

17 (Whereupon, the above-entitled matter

18 went off the record at 4:19 p.m.)

19

20

21

22
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162:4 192:9 199:10

207:14 208:18 231:19

231:20 242:14 245:12

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a.m 1:11 4:2 42:20,21

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162:20

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185:5,12,15 189:12

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229:13,16,18 239:21

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278:20 281:3,21

300:6

Bryan's 72:6 282:10

buck 237:21 238:6

buckets 163:13

bud 243:11

buddy 249:13

build 111:4

building 4:20,22 252:20

builds 245:15

built 67:12,17 186:17

bulk 4:12 146:16

208:20

bullet 264:9 267:6,11

270:8 277:21 281:5,8

bullets 161:9

bunch 294:2

burden 9:1 13:14 26:11

100:19 139:21 157:13

157:13,17 236:18

285:9

burdens 3:3 4:5 5:10

149:11 153:10,16

157:7

Bureau 18:12

burning 88:12

bus 233:16

business 8:19 18:12

22:11 30:3 78:1 98:8

98:22 106:20 147:10

147:13,15 168:18

231:1 241:6 250:13

253:12

businesses 147:11

157:12

busy 25:3 123:22 232:8

buy 74:1 99:20 230:20

231:8 237:1 248:19

249:17

buying 14:12 231:6

240:22 256:4

buys 119:20 174:14

263:5

buzz 91:6

C

cabined 274:3,9

cabinet 147:2

cabinets 104:7
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305

California 1:16 2:13

48:16 70:15 154:4

155:2,18 156:14

206:4 256:6

call 43:7 52:19 80:13

123:15 138:8,16

178:22 184:16 212:2

212:14 216:13 232:7

244:14 252:3 276:13

called 212:13 253:22

calling 31:7

calls 124:9 138:17

216:14 232:12 265:7

campaign 89:7 111:16

Canadian 68:15

cancel 36:3

canceling 179:9

capable 7:13

capacity 99:9 149:6

capture 103:14,14

157:1 269:17,17

captured 271:20

car 126:2

card 105:5

care 25:5 72:17 173:20

270:12,15

careful 12:12 182:14

206:18 224:7

cares 69:1

caring 151:2

carried 55:20 120:1

Carrier 1:17 42:13

68:14 75:20 123:4

137:17 181:16 273:15

carries 226:17 227:3

288:3

carrots 222:16 296:18

carrying 296:1

cartons 68:2,12

case 13:11,17 16:5,20

17:16 29:13 30:2,17

31:1 33:4,9 55:22

66:18 69:13 75:7

104:16 121:12 128:3

155:2,6 176:14,15,19

176:21 177:3 240:10

248:6 252:2,20 253:5

268:1 274:7 299:13

cases 69:18 101:21

165:18 177:14

catch 77:2 294:17

categories 40:15

184:21 185:1

categorize 38:7

category 219:9,10

caucus 42:11 52:10

212:16

caught 76:20 192:8

256:16

cause 143:18 187:10

caused 278:4

caution 206:17 207:3

cautionary 206:21

caveat 12:11 17:15

163:22 182:22 193:21

cease 175:21

center 197:22

central 1:3 90:1 272:18

272:20 273:18,19

279:12

certain 68:9 91:6,9

154:8 168:22 198:3

214:1 217:17 225:3

256:19

certainly 11:13 12:8

26:14 51:19 52:7 54:1

63:21 64:15 82:8,16

88:18 116:6 120:4

124:9 149:8 154:4

155:11 157:4 169:19

171:19 193:22 203:10

204:10 291:7

certainty 208:10

certificate 116:2,19

155:1

certificates 3:13 133:7

134:6

certification 97:20,21

98:9

certifications 98:7

certified 105:4,13

cesspool 221:21

cetera 53:19 63:4 73:15

279:8

CEUs 116:10

CFR 122:22 135:11

275:10

chain 8:21 80:18 110:4

176:22 181:2 187:16

190:3,6 191:16 203:3

204:19 205:9,22

211:16 214:17 218:10

220:17 238:15 239:14

239:19 240:14 241:2

242:6 246:3,8 256:2

264:3 291:10

chairs 292:12

challenge 51:7 222:7

chance 52:12 210:2

change 15:20 17:8

53:15 87:15 91:2

150:11 194:10 273:16

273:18

changed 111:18 160:8

218:20 219:22 290:13

changes 63:3 82:7

125:18

changing 22:12 112:1

219:17 282:4

channel 218:3 286:16

characteristics 265:21

271:3,8,13

charge 6:14 29:21

161:14 166:4 180:10

185:8 199:9 204:18

225:1

charged 199:14 230:13

charging 30:21 34:5

247:11

CHARLES 1:18 2:3

Charlie 7:6,19 13:6,8

15:14 16:3 20:22 21:8

26:15 81:22 90:19

100:17 102:12 111:13

113:6 120:13 143:2

221:4 249:20

Charlie's 17:3

chart 9:7 214:7 265:21

charts 271:8

chasing 232:8

cheaper 74:2

check 31:9 82:6 105:1

173:11 287:2

checked 101:7

checking 168:2 298:12

checks 13:22 31:16

32:18

Chicago 256:6

Chinese 58:15

chock 43:8

choice 7:2

choose 49:10 54:22

59:2 254:10

chooses 49:6

chose 49:11

chosen 157:16

Chuck 4:10 11:1 16:6

17:1 20:22 21:1,8

24:21 25:17 65:4

77:13 78:16 81:21

100:17 103:16 105:3

106:15 115:13 125:9

139:5,13 140:5 143:2

144:21 145:16 146:14

150:22 196:4 200:14

211:22 212:12,17

213:9 214:3 221:3

271:16 276:16 288:17

290:18

Chuck's 11:10 106:13

150:2

circle 189:5

circling 70:7

circuit 32:13,14

circulate 84:15

circulated 40:5 294:5

circulation 148:19

149:1

circumstance 13:7

circumstances 33:6

circumstantial 11:15

cite 78:14 219:16

citing 220:5

city 25:11

civil 3:4 6:15 22:16

28:12,16,22 29:12

32:2 120:20 121:4

161:14 166:4,21

180:6,10 184:9,20

185:9 187:18 190:14

191:20 203:16 208:6

217:15 226:17 227:3

249:10,11 254:8

255:4 296:1,16

299:16

claim 156:1

clarification 47:15

55:21 117:9

clarified 43:16

clarify 57:22 131:4

162:13 171:14

clarifying 233:2

clarity 15:8 141:18

163:6 181:13 189:8

295:9

class 219:14

classes 215:9

classifying 263:8

classing 126:3

clean 40:4 87:22 88:1

116:19 150:10 207:15

211:10

cleaned 283:6

cleaning 145:1

clear 16:8,15 22:7 37:4

41:4 48:1 55:3 80:4

94:8 127:20 161:11

162:5 165:10 181:11

185:3 188:1 190:19

195:5 199:1,3,4 218:2

219:2 224:18 228:20

235:7 260:6,11

clearer 278:14

clearly 40:16 44:4

close 58:8 65:20 192:12

291:11

closed 136:20

closer 160:6,9 290:22

code 3:7 70:20 71:14

codes 155:20 156:1,4

codified 202:9

coherent 42:16
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coil 16:1 17:6

Coincidentally 26:18

collapses 239:21

collateral 78:3

collaterals 75:6

collection 3:14 134:12

collusion 12:16

combination 16:13

combining 278:13

come 30:19 36:1 37:16

37:22 38:7 39:12

42:18 43:14 44:2,21

46:21 50:16 51:18

58:16 59:8,21 65:11

85:3 86:2 96:2 101:18

104:1 109:10 116:16

143:3,4 153:7 158:14

159:5,5 160:9 174:11

175:2 176:1 179:21

194:2,6,14 195:16

200:7 202:1 204:11

204:14 211:6 225:18

229:11 232:18 233:8

234:12 246:18 252:18

254:3 263:18 275:12

277:12 291:20 296:15

297:15 301:2

comes 13:20 17:17

34:1 51:22 54:18

70:12 101:20 174:14

204:14 205:19 217:7

224:20 230:14 236:6

246:9 248:15 255:19

273:15

comfort 15:5 89:8

258:9,15

comfortable 31:15

33:13 178:14 179:18

180:22 273:8,11

277:5

comforted 146:7

coming 9:15 17:4 41:5

94:2 105:8 115:6,22

178:8 203:9 205:7

comma 267:6,11

comment 48:16 54:13

61:10,21 86:12 87:5

164:14 203:7 233:3,4

273:3

commentary 44:19

76:21

comments 17:15 26:22

37:6 48:20 58:18

84:17 115:9 117:2

132:20 142:2 214:5

255:8 257:7

commerce 5:21 205:9

commercial 91:14

235:19

commercials 74:9

commission 2:14

170:21 180:7 200:1

commissions 154:7

commit 58:1 59:17

73:13 81:18 84:20

85:18 108:3 109:9

213:12 273:5

commitment 134:4

committed 45:3 96:21

115:15 135:1 162:2

185:15 188:2 246:19

committee 212:22

committing 43:14

50:17 142:22 180:12

209:9 217:17 222:11

230:11

common 147:6

communicate 88:15

communicated 168:5

178:19 255:16 287:10

communicating 169:3

287:14

communication 3:9

46:10 73:9 102:5,8,9

286:15,22 287:18

communications 93:8

93:10

compadres 83:17

companies 60:10

101:21

company 1:19,22 6:15

23:17,22,22 62:22

63:2,12 65:4 106:14

114:6 123:9 145:18

compared 201:9

competitive 78:19

complain 137:6,12

138:3

complainant 137:7

complaining 136:16

complaint 136:2 137:1

complaints 135:2 136:3

136:7,17 140:1

188:11

complete 61:14 94:13

160:19 230:1

completion 116:2

complex 97:18 222:8

compliance 3:12 17:5

54:17 78:10 79:3

97:20,22 107:7 156:4

187:12 206:5 218:6

297:6

compliant 4:18 6:3

10:17 44:5,17 48:2

68:22 74:2 76:2 98:18

102:22 197:21

complicated 115:4

181:10

complication 25:18

complications 26:4

complied 154:11

comply 48:13 76:20

77:22 98:5 147:8

214:13 228:16

complying 77:6

comports 294:1

conceivable 121:16

concept 24:22 53:4

59:21 60:8 110:21

197:9

concepts 43:15 44:2,21

51:6 125:15 227:9

294:20 300:16

concern 4:21 14:12

16:3 31:10 35:3 45:13

64:9,16 65:14 105:15

122:18 190:18 192:6

197:7 205:6 215:8

217:11 227:14 236:22

259:10 269:4,11

284:15 286:15

concerned 157:11

219:1 244:20 290:5

concerns 33:1 36:17

113:5 212:21 217:15

concert 286:10

conclusion 235:15

condenser 17:8 41:15

Condensers 145:1

condensing 15:16,19

15:21 16:11,21 26:1

41:19 43:4 55:11,14

55:17 66:14 67:15

69:2 92:7 230:21

231:9

condition 17:4

conditioner 1:3 79:8

143:20 209:15 272:18

272:20 273:18 274:4

279:12

conditioners 126:3

153:3 210:6 244:9

conditioning 1:18 90:1

182:12 268:2,12

conditions 80:5

conduct 74:19 243:9

247:4,20 253:2

268:19

conduit 138:11

confer 265:1

confident 216:7

configuration 58:4

confirm 167:21 168:2

confirmed 169:6 176:3

conflate 163:17

conflict 140:9,11

conform 282:4

confuse 69:5

confused 165:10

181:12 196:7 228:13

241:15 243:17

confusing 84:5 85:7

87:15 199:4 286:5

confusion 82:21 84:1

87:18 101:19 102:4

123:8 124:8

Congress 193:7,12

201:20 202:3,6,8,19

206:9 209:18 215:15

218:21 219:1 220:2

conjunction 9:8 107:15

107:19

connections 231:4

cons 4:9

consensus 27:1 60:12

95:12 117:16,22

118:16 127:10 159:16

162:11 163:21 164:1

165:1 194:2 229:15

229:21 230:2 276:20

consequence 181:5

208:12

consequences 3:2 4:4

27:12 90:6 161:22

181:7 200:13 208:14

209:6 223:9 274:7

consider 6:8,13 15:9

21:14 22:3,7 24:17

52:16 113:4 117:14

118:22 119:6,19

127:18 129:6 131:8,8

131:10,11 137:18

138:5 149:6,19

156:17 193:22 196:2

201:21 222:22 236:3

298:18

consideration 3:3

21:20 100:22 117:11

141:2 247:15 295:20

300:17

considerations 146:12

considered 24:5 67:7

130:9,20 131:2

172:17 218:6 224:12

considering 132:14

210:10

consistency 109:17

consistent 21:16 37:3

46:22 109:18 124:22

197:17 279:4 280:7

299:7
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constituencies 94:3

194:12

constituency 235:17

constitute 284:8

constitutes 24:3

constrain 119:17

construct 13:2 288:1

consult 21:3

Consulting 2:10

consumer 6:1 7:20,21

8:3,9 9:18 12:12,15

12:19 13:10,11,14

16:3 18:22 19:3,13

48:5,7 49:20 54:14,18

54:18 55:5 73:21 78:4

78:11,13 79:5 81:6,9

81:14 91:13 100:8

123:20 133:13 223:20

264:11 269:3,8,12

270:10

consumer's 14:13

consumers 13:1 14:2

75:2 77:17 81:5 82:5

124:1

contact 136:8 245:1

contained 43:20

contend 257:18

content 57:8 76:9 83:11

259:20 277:2

CONTENTS 3:1

context 5:19 23:7 30:5

31:21 82:19 136:15

137:10 182:11,19

183:13 198:8 226:12

260:3 262:17 263:11

283:1,3 284:22

contingent 45:5

continually 23:18

continue 93:6 118:1,15

219:16 238:13 239:12

291:14 293:14

continuing 93:17 103:6

contract 145:12,14

168:21 179:9

contracting 12:4 23:16

contractor 6:18 7:2

8:16,19 9:6,14 10:15

11:12,14 12:7,9 13:16

14:9 17:18 18:6,12

19:10,16,22 20:12,18

23:16 25:14 26:12

44:10 47:22 48:10

65:4 75:7 78:9,10

79:19 80:5,10,13 82:3

83:3 87:21 98:4 99:15

99:20 100:1,3,9,11,16

100:21 101:20 102:20

103:1 106:19 111:19

111:21 112:2,3,9

113:8 119:9 125:10

125:11,20 126:4,5

152:1 153:17 162:19

166:10 168:3,8,14

169:5 173:15,17

175:11 178:22 192:6

199:9 200:3,10

203:20 207:6 224:12

227:18 228:6 229:6

230:11,21 231:21

232:17 237:8 241:1,9

245:11 250:7 260:8

263:5,9 266:6,17

267:1 269:19 270:16

271:18 272:15,21

275:4,8 277:21 289:6

289:8

contractor's 104:19

149:8

contractor/dealer

248:10 285:5 291:7

contractor/dealers/in...

262:15

contractors 1:19 2:4

3:3,10,11 4:5,12

21:15 62:14 73:18,20

75:22 77:9,20 82:4,6

97:10,15 98:1 99:19

101:15 102:15 103:9

112:15 113:22 114:12

114:20 118:6 124:4

142:19 145:5 146:22

152:3 156:19 166:13

172:5,13 183:19,20

193:1 197:5 198:16

198:17 218:5 221:2

222:13,18 223:3

231:5 233:18 240:2

263:3 280:19 295:19

297:5,9 298:9

contractors/dealers

283:21

contractors/distribut...

107:7

contracts 151:7

contractual 168:18

222:4

contradict 265:12

contradictory 130:6

contrary 71:18 140:4

190:3

control 207:11 232:16

238:4

controlled 91:14

controls 2:1 65:16

67:21

convenient 146:20

conversation 124:12

178:9 231:13 238:8

274:16

conversations 65:18

convince 236:2

cool 79:9

Cooperative 1:15

cop 235:22

cops 235:22

copy 26:16

corollary 5:18 15:4

67:11 69:9

Corporation 1:17 123:4

correct 52:4 159:21,22

198:9 203:12 219:20

241:6 249:1 250:21

257:17 258:4 262:16

corrected 16:19

correctly 187:15

cost 32:5 149:14

Council 1:20 2:1

Counsel 1:22 2:12

counter 73:17 102:6

173:8 175:10 178:9

counting 288:21 292:12

country 44:11 114:21

couple 22:1 25:19

49:21 50:15 76:12

77:16 78:2 85:5

106:21,21 117:19

153:20 161:19 184:22

192:3 212:20 224:22

232:8 235:20 245:5

course 22:11 28:9

35:20 80:20 98:19

121:1 133:17 136:5

137:12 149:10 160:7

188:14 198:10 243:9

243:18 245:10 247:20

259:21

court 5:4 29:20 32:13

32:14,16 34:18 201:6

267:8 300:4,10

courts 254:12

cover 264:1 270:11

273:10 277:7

covered 109:21 158:3

197:1 249:22 268:14

270:16,18 272:18,21

273:17 275:22 279:13

294:6

covers 55:13 273:10

276:1

cracking 120:12

craft 164:16

crazy 92:3,5

create 100:19 122:15

140:3 147:12 193:13

260:13

created 31:19 161:9

216:16 264:18

creates 101:10

creating 103:3 140:22

147:20

credit 155:21,22 156:1

crews 113:10

cross-marketing

145:20

crowd 86:1

crudely 236:5

CSA 67:1

curious 69:8,13 80:8

221:1

current 43:18 66:12

98:20 125:17 134:18

161:5 172:14 197:19

currently 6:17 18:2

21:13 28:17 43:4

49:10 89:22 191:9

296:22

customer 6:18,22 7:14

20:13,19 120:1

123:14 173:15

customers 68:7 110:9

112:13 118:6 119:22

176:4

cut 208:3

cutoff 53:14 148:8

249:21

cutting 176:4 250:11

Cyrillic 58:15

D

D 93:8

D.C 1:11

damage 157:21

data 9:22 23:20 30:20

34:2,6 43:6,19,20,22

64:22 65:5,9 66:8

97:21 105:6,22 106:9

134:13 149:19

database 3:10,13 66:22

97:10 99:4 105:16

106:4 133:7,8,12

date 3:15 53:14 148:1,8

dates 281:22

Dave 39:19 45:18

David 2:4,13 53:6

255:10

day 14:4 18:9,13 28:20

29:9,14 30:22 45:7

93:4,11,13,18 94:17

95:7 105:5 114:13

124:10 172:9 204:12

206:19 249:2

daycare 269:17
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days 10:5 30:21 49:21

64:8 85:22 286:18

de 118:4 223:14

dead 18:5

deal 18:6,8 153:17

185:13 203:6 212:22

234:2 245:2 247:22

252:15 288:20

dealer 65:3 140:18

162:20 166:10 173:1

177:2 200:9 227:18

228:7 229:7 230:10

237:8,17 240:11

242:13 248:3 260:9

264:9,19 266:6,17

267:2,3,5,10 268:13

270:6,9,12,17 271:17

272:15,22 275:7

276:1 277:21 278:1,7

290:1 295:19

dealers 3:11 97:11

166:14 198:16,17

222:6 237:4 240:2

241:18 263:4 285:14

dealing 29:14 33:13

35:7 126:13 140:13

140:14,17 141:7,9

169:20 173:15 185:11

185:21 188:12 211:11

227:17 228:10 230:13

240:9,10 242:2 248:1

261:21 285:11

deals 166:5 180:16

241:18

dealt 73:4 253:17

decades 157:12

decent 70:8

decide 7:1 32:10,21

33:2 38:3 47:9 76:11

170:19 171:5 192:20

200:21 254:7 262:9

271:5 276:3,6,11

284:6 288:6 293:5,6

decided 93:19

decides 106:14

deciding 6:14 22:9

24:17 34:21 48:9

decision 26:6 32:12

91:2 128:8 129:7

254:1

decisionmaking 125:6

130:1 246:7

deck 297:19

declare 241:22

deemed 223:10

defect 236:14

defend 254:3

defense 1:20 5:17

176:11 280:18

deference 194:17,21

195:8 201:7

define 10:8 142:4 167:9

170:13,19 180:8

184:22 203:13 204:22

205:17 208:1 229:9

260:1 261:2 262:7

263:14 265:4 266:17

266:18 269:9 281:18

283:3 286:4

defined 29:1 40:16

163:19 184:8 189:14

189:17 190:18,21

199:16 210:22 230:14

264:1 266:20 270:17

270:18 273:1 274:19

275:7,8 282:9 284:10

295:10

defining 10:5 262:2

263:11 282:12 284:3

definitely 7:22 54:11

74:16 85:15 94:12

235:3

definition 182:7,18

257:19 262:14 264:1

264:15,18,20 265:2,7

265:10,20 266:1,8

267:15 268:13 271:6

271:11,12,17 272:4,8

272:10,14 276:3,7,12

276:15 278:22 280:7

292:22 295:4

definitions 189:10

190:15 258:5 262:21

263:19 264:4 267:4

270:22 271:1 273:6

277:1,17 282:4

295:13

definitive 296:4,6,7,13

definitively 228:18

defrauded 19:4

DEGITZ 2:10

degree 76:19 251:11

delay 207:2

delayed 40:19

delaying 237:10

deliver 83:13 115:5

124:17 206:19 260:19

delivered 83:20 152:13

256:5 269:6,12

delivering 80:9 102:2

delivery 103:12 182:10

191:2 268:1,7 272:1

demand 32:6,15 66:13

demarcation 23:10

demonstrate 117:1

120:3

Dennis 1:15 30:14

33:18 131:4 152:21

155:10 192:14 194:17

200:15,15 209:10

215:2,2 216:18 217:3

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283:19 290:20 292:13

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53:22 111:16 134:15

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148:12

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152:3

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295:9

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42:15 68:13 69:17,21

75:19 123:3 137:16

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34:5 39:20 61:2 74:13

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142:11 151:5 160:19

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105:15 120:14 125:10

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172:3 176:4 178:17

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65:10 72:3,3,7,7

137:14 172:15 182:2

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57:13,19 58:3,8 64:14

64:22 65:19,20 66:8

294:21,21,22

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156:16,22

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181:7 208:21

Navigant 2:10

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226:16 271:22 291:2

291:4

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184:12,12 193:19

195:15 217:19 235:8

236:4 247:12 260:14

262:10

need 9:18 16:18 17:12

17:20 22:17 26:7

27:13 33:7 40:21

44:16 46:19 47:1 50:8

58:16 60:18 77:22

78:6,9,18 79:2 93:18

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116:10 117:18 120:5

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128:8 133:2,11,18

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154:9 155:5,13,21

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171:5,15,15 176:7

185:8 189:16 190:2

191:8 192:5 195:20

203:9,22 204:11

205:13,17 207:3,8

211:17 212:21 213:5

213:7 215:4 221:3

223:6 225:10,14

226:3,3,6 228:9

232:18 234:13,20

236:16 241:11 242:21

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263:18 264:2,6

268:14 270:2 271:5,6

271:11,11 277:17

278:6,7 281:10,18

283:5 285:6 287:5

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128:2

needing 134:6

needs 8:1 22:5 30:6

39:16 57:12 69:3 78:4

78:9,11 80:3 86:7

87:12 104:20 121:18

121:18 124:7 156:14

205:16 206:5 213:11

221:6 230:3 232:21

266:1 287:6

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Neil 1:11,14 22:13

24:14 95:1 117:7

129:13 130:5 163:22

290:4 293:1

never 13:16 27:22

80:13 101:18,21

103:10 116:3 121:21

152:16 223:22 224:3

251:17 281:13 296:4

298:8

new 7:8 10:20 106:19

106:19 112:3 142:20

151:16 152:10 153:15

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215:18,21 293:7

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116:19

nicer 35:15

nicest 35:12

night 40:5 96:9 124:10

171:16

night's 94:11 161:4

nipping 243:11

nodding 20:16

NOLL 1:20 7:16 58:20

86:5,11,17 109:15

124:11 134:2 165:7

297:8,12,18

nomenclature 217:8

non-manufacturers

216:21

non-point 217:3

noncompliance 77:4

221:15

noncompliant 5:11,21

6:1,19 7:22 10:17

20:20 21:18 23:21

48:2 51:16 67:12,17

68:21 102:20,21,22

121:7 187:17

NORDYNE 1:18 42:4

117:18 132:21 139:3

normal 80:18 150:3

153:10

normally 201:15 292:6

norms 9:4

north 53:16 68:16 114:7

114:11

note 58:6 248:17

notes 215:14 272:6

300:7

notice 7:14 11:3 32:1

61:20 169:19 170:4

174:20 175:4,20

228:9

noticed 71:10

notices 287:19

notification 14:7 15:9

20:12 21:16 99:18

240:16 242:4,8

notifications 15:8

notified 18:15 169:4

239:15 240:14 241:4

notify 6:18 20:19 98:21

239:6

notifying 7:21

notion 83:6 88:13 90:16

NRDC 7:17

nth 251:11

nuance 169:9,11

number 4:4 30:1 40:17

52:16,19 65:6,6 93:9

134:10,17 136:4

137:17,19,20 138:1,2

138:2,4,8,16,17,20,20

143:8,11 146:4

173:19 240:13 257:10

287:5

numbers 30:1 67:22

68:5,6,11 143:12

290:21

numerator 260:17

numerous 175:12

232:11

O

object 276:19

objections 276:19

obligated 86:1

obligation 10:15 123:6

166:22

obligations 13:19 222:4

obliged 154:7

observe 242:9,18 243:9

253:1 285:8 298:20

observing 248:2

obsession 72:7

obtained 176:2

obvious 84:11

obviously 20:8 44:14

59:7 61:12 76:9

154:18 175:21 231:15

occasion 98:10 188:8

occasions 172:21

174:17

occur 13:12,17 191:17

occurred 255:15

occurring 291:8

October 3:21 62:1,2

63:20 93:19 95:3

158:21 159:3,9,16

160:3

OEM 49:2 60:12

OEMs 63:6,11 107:13

108:10

offer 26:1 29:15 55:17

58:21 99:4 107:18

109:16 110:8 124:17

146:4,7 203:11

offered 87:16 298:13

offering 71:4 89:22

110:13

offerings 117:10

offers 119:21 125:4

offhand 67:19

office 35:13,15 73:18

74:18 160:6 175:2

offices 160:5
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

320

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oftentimes 43:9 85:1

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175:14 209:13 213:21

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okay 26:22 28:5 29:16

38:5,22 39:14 42:22

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70:18,20 71:17 72:15

72:19 73:8 81:11 85:4

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96:8 97:8,10,12 107:6

127:22 130:3 133:4,6

134:8,11 142:13

143:16 149:21 158:13

159:18 160:15 165:6

165:11 167:9 171:9

175:3 178:4 180:1

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193:6 194:4,7,16

212:2 227:11,11

235:10 242:19 245:18

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276:18,22 277:19

279:2 284:13 285:10

292:18 293:3,4 294:8

301:15

old 9:3

older 146:22 147:3

onboard 85:18

once 18:15 24:12 80:6

100:4 121:19 136:20

154:14 164:5 169:2

178:18 180:16 186:6

232:20 235:4 259:20

268:15 288:22 289:7

289:9 298:2

one-off 10:2,13 27:18

27:20 30:19

one-size 141:13

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242:12 246:21 247:10

248:11 253:6,9,16

254:7 255:2

ones 29:6,8 40:21

45:22 67:16 112:16

112:17 164:16 191:7

199:6 214:11 220:10

220:11 221:8 224:15

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260:17 271:6

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online 15:10 79:20

89:21 90:1 183:20

186:8,11 232:7,17

233:17 237:13 239:1

244:17 263:7 274:15

onus 232:1

open 10:6 21:14 24:20

44:19 46:14 74:21

131:22 135:11 152:8

225:6 235:21 245:17

245:20 247:14 250:3

276:10 298:15

operate 155:20

operating 17:18 45:12

61:22 152:14

operation 78:1 98:21

192:11

operational 11:17

operationally 16:19

operations 15:20

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opine 144:12

opinion 21:4 37:13,14

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132:7 143:18 146:12

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194:15 203:11 225:5

227:4 250:10 295:13

296:12 298:1,2 301:3

opportunity 60:2 88:9

126:16 145:4,19

184:19

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86:21 130:4,7 135:15

243:10 278:16 286:1

296:8

opposing 31:12

optimistic 54:11

option 30:22 36:16

100:21 204:6 242:15

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options 32:3,20 33:12

35:19 36:10,12 67:7

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order 104:2 166:15

205:10 215:18 217:19

242:10 281:15

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orders 211:7,21

ordinarily 202:14

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178:7 202:12 259:12

original 17:15 50:14

144:5

OSHA 157:14

ought 11:20 44:3

187:21 218:13 256:7

outdoor 16:9,13 17:7

56:10 59:3

outfit 25:3

outline 86:7 88:5

120:17,22

outreach 3:10 73:10

74:8 92:12 108:14

109:5 111:16

outside 8:11 13:16

15:18 64:19 66:1 73:2

90:7 108:8 173:14

194:22 223:5 263:22

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overflowing 147:3

overly 97:18

oversight 83:10,18

oversized 26:2

owned 1:16 154:6

owner 101:19

owns 269:20,20

P

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

4:1

p.m 158:17,18 212:7,8

301:18

package 94:13 236:1

274:1,4

packaging 3:8 67:16

68:3 69:11 72:20

page 81:14 82:9 90:2

100:10,11 135:21

225:9 235:9 300:16

paid 9:19 19:1,7 123:11

157:12,13

painful 236:17

pair 133:15

pamphlet 80:14

paper 101:9,11 102:10

102:11 104:6,20

150:9

paperwork 68:9 153:13

153:19 154:2

paradigm 219:4

paranoid 153:9

paraphrase 166:9

paraphrasing 165:17

part 8:1 16:11 27:2,13

32:6,8 49:7 57:1 70:1

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90:13 93:8,8,9 100:6

106:7 111:9,15

113:18,20 114:21

120:8 121:9 130:8

132:9 149:15 172:17

185:13 188:9 200:21

248:9 252:17 255:17

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118:10

particular 9:8 11:7 20:4

23:18 27:22 29:13

36:3 97:4 110:21

111:12 136:18 147:19

168:19 192:11 193:14

194:12 229:11 241:17

274:10 299:10

particularly 27:10 50:1

87:20

parties 216:16 217:10

218:7,11 226:15

227:16 228:2 241:19

255:19 258:9 260:8

260:11,17 261:1

262:4,10 285:22

partners 100:15

parts 102:1 251:10

party 17:3 162:2 187:10

191:15 197:12,14

203:18 224:11 242:2

281:9 293:22

pass 86:15 142:18

234:10,11,17

passive 197:13

path 63:2 195:4 258:18

262:6

pattern 11:20 247:4,4

pay 14:17 19:11,13,16

32:3 121:15 180:17

187:18 241:16 245:12

paying 10:19 17:21

79:6,11 144:6

PDF 75:6

penalize 252:9,10,13

penalized 215:22

216:16

penalties 3:4 22:16

28:13,16,22 36:19

77:3 166:4,21 180:6

184:9,20 185:9

187:19 205:13 218:14

221:19 223:4,11,12

223:14,17 225:2

226:18 233:12

penalty 6:9,15 19:17

22:10 29:13 32:2 36:8

37:1,4 120:20 121:4

121:15 161:15 162:3

171:8 180:10,11,17

183:7 190:14 191:20

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208:6 215:6 217:9,15

218:9 221:9,10,15

222:2 224:1,2,5 227:3

232:21 242:14 244:3

245:11 247:6 249:8

249:10,12,16 251:22

254:2,8,15 255:4

284:1 288:3 296:1,16
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

321

299:16

pending 21:15 43:15

people 17:12 21:4,10

25:10 31:6 32:19 33:7

33:12,20 34:8,9,12,14

34:15,21 35:11,15

36:4 37:14 38:15

41:20 43:4 46:3,6

49:19,22 54:13,21

55:4 56:1 59:1 60:17

60:19,22 62:20 64:1

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79:13 80:9,17 83:1,14

84:10,14 85:13 86:11

88:12 89:1,10 93:12

94:2,11 95:13 97:2,13

98:15 103:14,22

105:21 106:21 109:8

109:12 115:11 116:7

117:1,14 120:11

122:10 123:15 126:16

127:3 136:5,15 137:6

137:11 139:15 144:19

145:20 147:8 153:3

153:10,16 157:15

158:12 159:5 160:10

163:17,18 167:5

170:16 175:13 177:12

179:20 181:2 182:1

183:1 184:1,1,9

190:22 196:10 201:14

205:9,15,22 209:9

211:15 213:6 214:15

215:6,9 217:14,16

220:12,15 223:18

224:22 225:16 235:5

236:22 237:2 244:8

246:7 249:7 250:12

253:9 255:1 256:2,20

257:1 263:16 266:2

273:20 274:2,14

290:6 291:14 292:14

293:7 294:7 295:22

people's 108:21 145:6

145:21 152:20 255:20

282:15

percent 57:16 63:8

126:11,12 147:13,15

165:4 168:17 208:10

percentage 12:20 18:10

147:11

percolate 29:3 242:19

perfect 176:10

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15:6,11 16:12 21:12

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period 35:22 59:13,14

61:21 136:18,22

149:10 251:10 286:18

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person 19:22 20:4 22:8

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86:14 101:8,16,17,17

101:18 102:1 103:12

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144:15 169:20 171:8

175:20 176:17,18

180:15,16 181:4

197:2 199:8 204:21

205:2 207:6 238:13

240:20 245:20 246:3

247:20,20 251:8

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271:18 272:15,19

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285:14

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104:13

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143:5 144:7 152:22

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phase 114:1

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212:2,14 232:12

242:13 252:3

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physical 178:10

pick 16:20 100:3 126:11

242:12

picking 186:22

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pickup 103:11

picture 236:20

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pie 115:17

piece 12:16 17:16 55:22

99:20 100:8,9,20

101:5,9,10 104:6,20

113:18,18,19 115:17

163:4 167:7 180:2

187:8 204:13 233:4

258:8

pieces 64:17 78:3 87:10

102:5,9 114:7 186:21

227:6

pike 17:18

piling 33:4

pinged 287:15

pitch 5:16

pitched 45:18

place 14:17 23:5 27:17

28:15 30:9,15 32:18

33:11 77:7 97:19,21

139:1,14 144:14

172:22 174:21 179:5

229:17 230:20 256:14

263:12

places 25:9 131:15

plan 108:7 156:9,11

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195:16 210:20 220:15

260:15

plate 43:6,7,19,19,20

43:22 47:21,22 64:22

65:15 66:8,13 67:6

68:1

plates 65:9,10 67:2

71:10

play 23:9 28:3 122:2

153:1 229:11

playing 11:16,18 170:8

183:18 193:8 277:8

pleases 235:12

plodding 110:18

Plumbing-Heating-C...

2:3

plus 39:15 85:6 151:5

pluses 157:5

point 7:10 11:2 16:14

16:15 20:8,9 24:3,4,6

24:10 30:7 33:9 35:6

35:9,10,16 36:21,22

37:5 38:14 39:21

45:22 46:5 52:14,20

54:15 57:11 62:9,18

71:16 72:10 74:18

77:14 89:12 94:6 97:5

99:17 100:10 105:11

109:16 110:16 111:12

118:13,18 120:5

136:21 141:6 144:12

145:11,22 148:14

149:14,17,19 152:1,2

152:8,19 154:5,17

155:10,13 156:3

163:15 167:1 170:9

170:12 179:12 189:6

191:3,20 193:3

195:13 200:8,17

207:14,19 208:15

209:5 221:7 222:4

226:21 228:17 246:22

248:22 250:7 260:18

263:21 264:6 276:2,8

276:9 277:4,11

282:14 284:16 285:20

289:2 290:3,4,7

292:14 295:8

pointing 229:12

points 100:5

police 186:9

policy 22:3,6 23:1

26:16 27:2,4 29:11

120:15,19,20

pop 92:3

pops 91:10

population 12:22

Porter 1:21 18:1,1

36:18 79:15,15 81:19

81:19 86:13,13 87:4

101:1,1 104:17,17

113:15,15 119:7,7

135:16,16 150:1,1,13

167:16,16 173:5,5

175:9 177:19,19

178:5,17 183:8,10,10

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186:4,4,13 206:8,8,17

208:1 231:11,11

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239:5 240:1,12 242:3

243:14 244:12 246:11

248:8 250:9,9 269:15

269:15 286:13,14

290:13,18

Porter's 36:22

posed 129:13

position 82:9 126:18

132:17 143:7 150:2

153:18 236:10 296:4

296:6,7,10 297:16

299:6

positively 235:14

possibilities 116:12,13

possibility 21:14 116:7

116:8 177:16 187:18

201:21 205:13 294:13

possible 24:15 26:16

59:18 62:10,11,20

65:20 76:22 79:12

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296:16 301:2

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73:15 98:14 121:4

135:12 192:9 220:20

224:12 225:6 251:13

266:19 269:10 296:14

post 73:16

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potential 54:20 112:13

215:12

potentially 54:21 99:16
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

322

108:10 184:10 190:14

223:4 250:6 285:21

pound 147:7

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powerful 7:8

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172:10

PRA 149:14

practical 61:17 62:9

152:19 208:9,16

209:11 210:13 224:7

practicality 188:5

practice 64:8 131:2

147:6 149:3

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88:7 89:5 96:22 109:4

126:20 128:6,10,18

129:5,15,16,21

130:11 131:11 132:1

132:4,8,22 133:2,19

135:5 139:6

preambulatory 108:20

precedent 171:21 197:9

198:11 201:9

precedent-setting

198:10 219:13

predicated 155:4

predict 48:20

prefer 72:3,6 175:19

235:5 289:13,17

preference 38:21 140:2

premise 20:12

present 1:13 2:6 143:13

295:21

presenting 179:18

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pretty 22:6,12 37:3 41:4

62:17 70:8 74:3

111:22 174:19 218:2

235:18 240:6 265:14

291:11 298:22 299:7

preventative 265:6

preventing 265:5

previous 228:14

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print 66:12 75:9 119:4

printed 66:5

printout 133:12

priority 31:14 105:19

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proactive 188:6

proactively 188:17

probability 25:12

probably 7:11 11:15

19:19 22:2 27:21 28:8

38:19 39:19 61:8,13

62:7 63:9,13 79:2

88:6 89:11 103:2

105:5 114:5,6,18

116:21 143:18 145:4

147:3,9 152:9,15

153:18 154:13 155:12

159:9 175:17 181:22

186:2 197:7 206:13

208:19 213:1 222:10

230:22 232:6 236:16

254:17 259:16 262:21

267:16 291:3 292:5

problem 5:1 10:2,14

33:18 103:4 119:2

186:1 187:21 201:1

213:5 216:15

problems 216:1

procedure 147:13

procedures 30:15

proceed 40:3,20 42:2

63:2 252:11 265:13

272:7 293:2

proceeding 292:17

process 12:1 14:1 18:3

26:7 30:10 31:2,4,8

31:16,18 32:17 33:11

38:20 66:13 101:3,5

101:11 103:3 105:2

106:8 109:19 128:9

134:17,18 150:4

173:18 175:10 188:2

207:2 239:2,15 242:8

243:18,22 246:10

247:9,13 254:14,20

254:22 255:2 276:13

processing 102:10

produced 148:7

producing 296:17

product 5:22 6:2,3,19

7:15,22 8:7,9,12

14:16 20:20 44:14

48:2,12 66:19 68:21

68:22 74:2 76:2 78:11

78:19 106:20 126:12

126:12 148:6 154:9

154:22 162:19 166:9

182:10 187:12 191:2

191:14 196:16,18

199:16 200:4 219:9

219:10,14 223:21

228:15 229:6 232:22

233:13 237:1,2,3,7,16

237:18 239:1,9

241:19 251:7,9 263:7

263:10 267:21 268:7

268:19 269:6,12

273:17 277:22 279:14

279:15 280:12,13,15

280:20,21 284:21

286:19,21,21 288:11

289:19 295:10 296:22

production 70:6 152:10

productive 284:5

products 21:18 44:12

49:3 66:16 67:21

97:20 153:4 197:21

199:15 202:20 215:13

237:13 244:4,11

268:2 274:1 281:1

professional 75:22

125:20 126:4

professionals 125:12

126:8

proffer 46:2 74:13

profit 256:14

program 14:7 98:6,11

118:9,9 154:20

155:20 205:11 219:5

251:21

programs 13:21 127:17

154:19 155:19 156:14

progress 39:11 41:7

92:22 93:12 196:6

216:22 227:8 230:4

prohibit 227:1

prohibited 3:22 28:21

29:1,2 30:8 36:7

37:10,20 94:9 95:12

96:1 141:18 158:10

158:22 160:16 161:4

161:12,13,16,18,22

162:7,15,17,18,22

163:10,19 164:6

165:12,17,20 166:2,6

166:8,12,16,20 167:4

167:11,12,18 170:17

170:22 171:20,22

172:2,5,11,14,17,18

173:1 174:8 178:16

180:5,7,8,9,20 181:1

184:7,8,15,18 185:4

185:12,15 187:9

189:7,16 190:11

191:5,10 193:14,20

195:14,18,20 196:9

196:12 197:13,17,22

198:6,22 199:5,11

200:2 202:4 203:1,13

205:14,18 208:7

209:7 210:21 211:8

211:14 213:14,15,18

213:22 214:10 215:9

216:8,9,14 217:4

218:19 219:18 224:14

226:17 229:4 230:14

237:6 239:3 242:11

245:6,16 246:4,15,15

247:16,18 251:21

252:6,16 253:7,10,11

253:15 254:6,13

257:16 258:8,10,12

258:17,20 259:7,7

260:1,4,7,10,13,16

261:1,7,7,11,13,15,20

261:21 266:3 277:9

277:15 278:21 282:9

283:7,9,17,22 284:4,7

284:8,10,18 286:9

288:4,19 289:14,15

295:10 296:1,17

297:20 298:10,21

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project 177:5

prominent 82:8 151:7

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261:4

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proof 104:15 178:11

238:8,12 294:20

proper 257:4

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property 173:12 269:20

Proposal 3:6

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proposed 249:6 263:19

265:20,22 270:22

271:7,17 272:4,7,13

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300:16

proposing 32:2 53:11

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protection 291:1

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protracted 5:7

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153:14

proven 115:6

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48:12 54:20 56:13

82:19 99:20 109:11

118:7 122:10,13

133:21 135:7 136:8

137:11 196:18 215:17

268:19 278:13
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239:1 241:19

provision 11:4 35:21

117:14 122:9 133:11

133:22

provisional 132:11,16

provisions 119:18

122:16

Prynne 9:4

public 1:5,10 3:10

73:10 74:8 92:12

108:14 111:15 245:10

245:14 247:11 253:8

253:17 254:18 255:5

publicly 246:5

published 59:12,19

62:2 110:1

pull 213:1 271:10

pulling 120:11 286:20

pulls 242:17

pump 15:21 105:12

231:7

pumps 273:22

punish 223:18

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punting 10:5

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263:10

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264:10

purchasing 90:7 102:1

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purely 77:11 129:17

186:17

purpose 47:20 218:5

249:1 264:11 280:9

282:17

purposes 22:9 44:9

128:9 146:17 156:12

156:21 208:5 264:17

pursued 206:13

pursuing 8:11

purview 220:3

push 45:17

pushed 70:4

pushing 146:3 163:16

put 4:16 5:5,6 18:14,16

24:14 25:4 26:10 30:8

33:2 35:3,12,22 36:4

41:21 45:19 51:9

52:18 61:20 73:1,6,16

79:6 81:13 88:22 89:4

91:7 92:2 93:19 97:21

112:19 114:6,8 122:4

125:5 130:5 143:1

153:9 155:13 170:15

173:16 174:20 175:3

179:2 182:3 183:12

183:20 185:10 193:19

195:21 201:1 206:17

207:3 224:18 230:7

231:21 232:20 233:12

236:4 246:20 249:19

267:3,6,11 269:16

275:6,11 276:4

278:12 282:12 287:5

294:5 295:5,16

298:17

puts 169:18 209:14,14

263:7

putting 9:22 10:21

30:15 43:22 46:9

50:22 53:9 56:17

57:18 58:2 62:15

122:19 124:19 126:2

132:22 133:2 137:18

138:5 153:15 171:6

201:8 210:6 215:7

225:19 250:12 285:16

286:11 300:19

Q

QR 3:7 70:20 71:13

qualify 191:1

quality 13:22 155:4

quarter 158:15 212:4

quest 67:10

question 7:18 10:4,10

10:12 14:22 19:11

20:1 23:4 27:7 29:4

30:14 37:10,12 47:5

51:21 55:9,19,21 59:6

64:11 70:9 72:22 73:3

74:11 79:1 83:10

84:13 91:13,19 92:1

97:16 110:6 117:7,8

118:20 119:14 120:9

121:10 127:13,16

129:14 132:16 135:6

136:10 139:6 140:10

151:12,17 156:15

166:19 167:9 169:13

171:18,20 180:4,21

187:2 188:22 189:11

189:15 190:10 192:2

192:18 197:11 198:19

199:20 202:11 204:17

205:2,18,19 208:4

210:9,14 214:9

216:11 217:13 218:1

218:9 219:8 220:11

220:14 224:11,20,21

226:15 229:19 230:9

233:2 236:22 249:4

250:3 251:18 253:7

255:17 264:15 267:18

274:14,18 277:10

282:10,10 284:4

288:15 291:17,21

297:3

questionable 60:10

questioning 194:19

questions 44:19 49:1

50:2,8 58:19 74:7

124:1 131:17

quick 16:8 27:19

136:10

quickly 59:18 62:11

160:17 301:4

quite 26:13 150:7,13

quorum 290:7

quote 5:10

quotes 78:20

R

R-22 114:1

raise 89:20 92:22

123:18 288:15

raised 39:1 41:11 127:1

140:9

raising 27:11 266:10

ramifications 4:19

Rand 1:16 23:3 53:21

56:4 76:7 107:10

141:16 154:17 164:21

189:4 202:18 218:18

226:10 257:15 267:18

269:2 270:8 279:20

285:19 293:16

range 144:1 268:4

rant 105:9 158:1

rare 256:11

rate 40:11 51:12

rated 17:2

rating 66:13 67:2,6 68:1

71:10 79:1,11

RAWALD 1:21 5:15

10:3 14:11 16:7 20:7

21:9,22 24:8 26:18

27:15 28:14 31:17

35:5 36:21 37:8 38:11

39:15 41:2 45:8 47:1

47:5 52:11 61:16 67:9

68:20 69:20 70:4 71:2

72:2,6,21 73:12 75:11

76:4 80:7 81:11,15

83:9 84:3,9 85:12

86:3,9 88:10 90:10

91:12,18,22 92:5,12

94:7,21 95:15,21 96:5

96:8,14,18 97:7,12

108:17 109:6 110:14

120:18 126:17 127:22

128:4 132:6 133:9

134:14 135:6,19

136:13 137:22 138:12

139:13 140:11 141:21

142:9,16 144:10

148:12 151:21 158:6

159:22 160:3 161:10

163:14 165:4 169:8

172:7 174:4 176:9

178:4 179:11 181:19

181:22 183:9 185:6

185:18 187:14,22

188:21 189:22 191:19

193:6 195:11 197:10

204:16 208:3 211:6

212:3,12 213:9 214:8

217:6 220:7 224:6

227:11 228:22 235:2

242:7 243:7 245:4

246:14 248:22 250:2

251:2 252:14 254:5

254:21 257:22 259:20

261:16 263:13 264:22

265:18 266:16 267:2

267:22 269:4 270:20

273:5,20 274:2,13,21

276:22 277:19 278:9

279:2,5,9 280:9 281:7

282:7 283:8,13 284:2

284:15 286:3 287:20

288:7 289:12,17

290:2,4,11,16 291:16

294:9,19 297:2,11,13

297:22 298:15 299:5

299:15 300:2,12

301:13

re-rated 8:7

re-rating 8:10

reached 60:12 245:22

reaching 80:17 212:10

react 187:5

reactions 50:1 259:19

reactive 12:1 186:17

187:5 188:2,6,13

read 55:12 85:1,5 216:5

220:12 257:16 289:18

readability 67:4

readers 84:11

reading 96:12 227:4

278:16

reads 221:16

ready 41:20 73:13

106:14 266:12 293:9

293:11
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

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real 16:8 58:3 85:8

103:4 131:10 146:2

186:16 224:5

real-time 99:2,4 105:20

realer 99:3

reality 231:22

realize 118:12 146:16

really 14:12 15:16 20:1

23:17 24:22 25:7,9

31:15 35:14,18 36:7

37:9,11 38:11 39:17

40:14 45:16 49:17

54:16,19 55:21 64:10

69:16 71:4 72:2,6

77:15 78:5 88:1,13

96:2,19 105:17 106:9

108:18 110:22 113:20

114:17 115:16 119:17

121:5 122:1 126:16

126:21 127:8 129:13

129:17 136:15 141:16

148:2 149:17 153:2

154:20 159:4 163:10

163:19 171:5 180:21

181:10,13 183:1,3

187:9 194:1,4,20

196:6 199:2,4 200:9

201:15 203:16 204:15

204:17 207:4 208:15

209:16 211:10,10

212:21 213:13 214:10

219:7,12 221:1

224:20 228:3 231:18

232:1 236:12 246:17

251:5 268:10,14

269:7,9 274:2,9 275:6

287:1 290:5,9 296:11

reason 7:9 14:13 34:10

40:14 133:21 149:5

153:20 154:12 167:1

194:9 203:2 269:16

280:17

reasonable 33:5,16,20

51:13 85:19 125:4

143:11 220:11 226:22

258:18 291:12

reasonably 58:7

reasons 79:2 117:19

217:16

reassess 36:6

rebate 17:5 155:19

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recall 273:21

receive 83:14 84:11

299:2

received 6:19 7:15,15

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receptive 52:22 53:3

recommend 89:11

119:10 158:6 210:15

210:16

recommendation 75:4

294:14

recommended 251:12

251:12

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180:22

record 37:11 42:20 70:5

70:8,12,15 92:19

101:6,14 113:13

137:1 146:5,16

147:12,21,22 148:15

148:20 150:3,18,20

151:14 154:13,14

155:7 156:7 158:17

212:7 254:18 297:11

297:12,14,17,19

299:21,21 301:18

records 3:17 11:21

27:19 28:5,6 31:13

36:8 70:6 77:22 101:7

136:11,21 142:12,13

143:6 146:22 147:3

149:7,9 150:14

151:18 152:10,16,16

153:2 168:2 253:3

298:21

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246:17

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referred 263:17

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refinements 213:15

reflect 202:6 213:16

226:7 283:16

reflecting 296:3

reflection 98:20

reflects 202:8

refresher 93:3

Refrigeration 2:3,8

refrigerator 268:3

refrigerators 6:12

reg 85:10 129:21 132:3

regard 218:8 228:5,6

230:8

regarding 22:5 28:16

41:10 46:7,9,16 75:13

75:13 120:20 133:22

198:6 295:5,9

regardless 83:2 122:6

128:7 227:2 236:5

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regime 202:2

region 44:6,11 50:7

90:8 156:19,20 237:2

237:14 251:8

regional 1:3 3:12 6:20

30:5,12 31:20 34:13

34:16 44:5,13 48:13

49:3 52:1 54:1 75:13

76:1,15 87:20 107:8

135:3 137:10 138:3

156:16 162:21 166:6

175:17 182:19 187:13

206:12 214:13 219:12

229:8 237:18 272:18

272:21 273:17 274:8

279:13,16 280:15

281:10 285:2 289:20

297:7

regions 44:15,17

114:19 152:7 183:22

register 103:1

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registry 102:17 103:2

regs 57:9 58:11 87:8

89:22

regular 137:12

regularly 208:19

regulate 197:4

regulated 22:5 121:18

154:6 171:21 201:15

207:16 215:10

regulating 15:16

regulation 28:15,17

75:17 85:1 89:4

107:22 108:8,9

109:13 117:19 128:6

128:16 130:8 131:22

135:15 139:7,11,15

198:4 200:17 221:14

regulations 16:9 84:4

115:2,6 122:9 133:19

157:15 161:16 165:19

172:12,20 173:3

regulatory 57:13

108:22 122:6,22

126:19,21 127:4,6,9

127:21 128:14 133:21

135:8 157:7

reiterate 27:7 257:15

related 163:12 230:17

relates 110:15 198:5

199:11

relations 123:21

relationship 207:11

236:11

relative 64:12 275:22

relevant 65:5 121:2,3

reluctantly 71:20

rely 35:7 106:7 115:12

191:21

relying 106:2,9 268:15

remain 24:19 298:5

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remedial 3:3 21:20 22:7

23:7,9,12 24:4,16

27:1

remediate 10:16

remediation 13:12

remedied 18:11

remedy 11:12

remember 43:10 301:6

remembering 151:2

remind 43:4 73:18

87:17

reminders 145:15

removed 281:5

repair 143:22

repaired 144:4

Repeat 272:9

replace 6:2,12,21

143:22 297:5

replacement 25:21 27:9

replacing 10:17 17:8

26:11

report 34:1 235:16

REPORTER 267:8

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137:4 141:1 152:10

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8:4 13:18,21 14:14

15:6 21:12 33:6

118:19 123:10 133:11

134:9 154:21 193:14

236:15 296:21 297:4

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15:20 20:19 22:22

63:10 71:22 116:13

131:1 139:9,10 140:8

146:5 155:9,12

159:10 197:12 211:16

297:10

requirement 8:18 10:11

11:4,13 14:7 19:7

38:8 57:13 67:13

68:20 71:14 90:4

112:19 117:4,13

118:5 122:7 126:7,19

126:21 127:4,7,9

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148:20 151:14 152:5

156:2,8,10,18 174:6

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48:6 67:3 68:10,18,19

76:15 154:11 157:20

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174:10

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21:16 109:1,14

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300:13

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227:20 229:10 262:20

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268:21 271:21 278:1

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185:4 189:12 190:20

196:21 260:19 261:8

261:22 263:3,17

267:12 270:15 275:17

275:19 278:8

resent 104:14

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273:16 274:3 279:12

resolution 141:3

resolve 128:22 129:19

resolved 142:8 298:16

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resource 134:20 135:9

135:22

resources 1:20 97:17

105:19 188:4,22

respect 38:9 77:15

221:16 299:19

respectful 64:7

respective 179:20

respond 138:22 201:19

218:1

response 6:7 54:10

203:5,8 246:9 299:3

responsibilities 100:12

responsibility 8:20

100:1 191:7,17 202:7

219:19 255:18 266:3

291:10

responsible 182:4

190:6 191:12 211:1

218:7,11,13,14

280:22

rest 52:10 93:4,11

158:13 266:22 279:8

restate 48:4

restrained 140:19

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158:17 212:7

retail 12:21

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185:9,14,21 186:3

227:20 229:10 232:7

237:19 262:20 263:10

264:13,16,17,20

265:2,9 266:7,20

267:20 268:4,9,11,21

270:18 271:19

retailer/reseller 191:13

191:18 233:4

Retailer/resellers 281:4

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181:17 183:5 185:3

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191:1 196:21 198:2

215:20 260:19 261:8

261:22 265:8 267:12

270:15 275:17,18

retailers/resellers

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70:12,16 78:1 142:12

142:13 146:5 148:15

148:20 297:11,12,15

297:17,19

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reveal 137:14

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113:12 165:2

reviewing 98:17

reword 288:5

rewriting 202:13,13

Rheem 1:19 59:20

62:21 68:17 71:1

80:22 81:1 108:13

132:18 159:8 185:20

Rheem.com 81:8

right 4:3,16 5:7 8:3,12

10:3 11:16 12:10 15:3

17:20 18:2 21:19 23:5

25:11,20 26:18 27:1

28:11 31:17 34:11

35:5 36:21 40:2 42:17

47:1 56:12,16 58:22

61:15 64:9 65:21 69:1

70:1 71:18 72:21

73:12 76:21 78:5,12

82:14 84:6,7 87:19,22

90:10 91:12,18 92:21

95:4,6,10 96:17 103:8

110:14 114:5 120:17

122:9 123:1 128:4

131:18 132:2 133:9

138:12 141:21 142:5

142:9,16 148:12

151:21 155:18 159:15

162:15 167:19 172:7

178:5 181:4 183:15

185:16 187:14 188:19

189:2 192:21 193:5

195:4,10 197:10

202:20 204:16 208:3

211:6 214:10 218:22

220:7,10 226:18

227:16 233:5,19

235:1 236:9 238:10

240:1 242:7 243:1

245:4,10 247:16,17

247:18 250:2 252:14

254:3,5 261:16

263:13 264:22 266:16

273:2 274:2,21

277:22 278:9 279:9

280:4,9 281:14 282:7

282:7 283:8,12,13

288:7 289:12,15

290:2,2,11,16 293:11

294:1 297:2,11,13,18

299:15 300:2 301:16

rights 168:22

rise 255:3

risk 221:9 227:17 236:7

risks 221:10

road 112:22 176:8

robust 74:7 98:6 105:17

271:6

Rocky 2:1 48:3,3 56:20

56:22 66:11 67:20

71:9,9,21 72:8,9

99:11,11 109:20

130:5 184:5,18

207:19 272:3,3,12

275:21 278:20 279:3

279:7 281:3,21 300:6

rogue 9:6 12:16 120:3

153:17

role 87:6

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rolls 101:22 238:16

room 35:13 57:15 116:1

143:19 147:7 158:13

163:21 175:15 176:22

183:4 194:2 195:1

204:20 205:1,8

214:22 267:15 287:8

290:12,19 294:10

295:22

rooms 159:17 160:7

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23:8,13 24:1,3,7,16

24:18,19 28:10 56:1

118:21 119:6 127:20

129:7,10 130:1,21

141:20 145:1 169:17

174:10 176:16,18

177:15 191:21 192:1

192:5 196:11 200:3

204:21,22 207:21,21

208:2,5 239:17,20

242:1,9,21 243:3,4,16

243:19,19,20,20

244:5 245:3,15,22

246:1,17 247:1,7,19

248:18 249:3 252:20

253:1,3,5,22 277:11

285:22 286:4 288:20

289:3 291:5 298:14

routinely 162:21 166:11

174:13 175:5 177:17

179:8 180:15 185:14

187:6 199:19,21,22

210:4,5,6 212:22

228:9 229:8 230:12

237:9 247:21 248:12

285:1,4,7,9,12,13

288:13 289:10

routineness 10:8 243:7

ROY 1:22

rugged 43:18

ruggedized 58:6 64:12

65:8

rule 39:9 46:7,8,13,16

46:19 47:2 59:12,19

60:3 61:11 62:2,4,7

77:19 110:1 147:5,14

202:13 209:16 210:17

215:7 257:3 261:3

300:20 301:4

rulemaking 48:6 53:4

54:6,6 61:6,14,18

89:12 130:17,18

300:18

rulemakings 153:6,6

rules 87:8 111:5,17,17

154:8 200:16 256:4

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run 25:18 85:9 188:17

192:12 215:22 225:12

232:20

runner 102:1

running 169:12 232:19

runs 75:7,8

Rural 1:15
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Neal R. Gross and Co., Inc.

326

S

S.W 1:11

SACHS 2:1 8:22 11:8

15:14 16:17 25:17

27:5 48:19 49:13

50:12 51:20 52:5 55:7

55:16 56:11,16,21

63:14 64:6 65:13 66:1

66:10 71:19 72:5,13

85:20 93:2 95:11,19

96:3,7,12,16 105:10

110:5 111:8 117:6

119:15 127:13,15

129:12 131:16,21

143:17 145:10,22

157:3 186:15 187:20

235:11

safe 140:22 256:21

265:14

sale 44:7,15 50:4,5,20

51:12 52:18 68:6

99:18 100:10 138:15

151:4 168:13 241:19

241:20 242:12 244:21

280:11 295:1

sales 78:17 79:20 89:21

90:22 103:22 119:9

156:20 157:2 176:17

244:14 249:2

sample 66:12

sanction 109:1

satisfactory 257:13

satisfy 14:8

Saturday 293:10

save 79:3 177:9 275:1

saving 155:21 156:1

savings 77:18

saw 300:7

saying 16:22 20:18

24:6 31:7,18 34:3,4

34:15 35:2 63:8 76:14

86:22 97:1 98:17

108:9 109:8 110:15

111:3,4 113:2 115:19

116:12 121:13 128:10

128:11,21 129:9

131:5 146:15 151:1

174:6,14 175:1

176:20 177:4,8 180:9

185:7 187:3,15 190:1

190:3,4 195:19 201:6

201:20 211:2 217:14

221:3 223:22 225:7

229:2 235:3 238:20

241:7 242:17 244:13

246:11,14 249:13

253:15,16 258:19

262:22 264:12 270:9

273:9,11 275:5 280:4

284:2,9 285:10

287:21 288:1 293:13

296:12

says 34:2 44:15 51:12

67:6 138:8,15,18

201:3 215:3,15

219:19 229:5 240:5

248:7 281:16 283:9

Scarlet 9:3

scenario 12:18 27:17

28:1 106:13 107:2

141:8 177:2,4

scenarios 106:12

141:12

schedule 160:20

scheduled 63:19 113:9

160:4

scheme 70:8 197:20

218:16

scope 6:9 22:9 120:20

152:4 173:14

screen 272:14

second 49:16,17 56:19

63:20 70:1 93:8,9

160:5 172:9 198:20

199:13 258:7 264:9

267:6,11 270:8

274:20 276:17 283:12

288:2

secondly 35:16

section 166:5

see 17:5 20:15 21:5

22:11 25:3 28:2 38:12

38:14 66:8 70:11 79:7

79:10 84:16 87:10

88:22 90:15 101:21

104:9 105:5,7 114:1

116:19 119:8 122:21

124:21 135:11 138:7

138:19,22 157:5

159:10 160:7 167:18

173:11 184:3 185:3,7

187:9 194:9 195:5

201:3 209:20 210:5

216:12 228:9 233:10

236:20 240:3 242:4

243:18 245:18 252:22

253:4 255:6 261:12

273:3 277:17 288:18

289:1,1 291:20

292:20 301:5,16

seeing 53:10 292:2

seek 183:20 186:7

seeking 56:13 117:8

seemingly 10:16 41:5

71:7 242:16

seen 34:8 89:8 151:10

249:5 287:3

SEER 14:18 44:6,14

45:8 49:4 53:18 69:2

78:21,22,22 112:6

123:18 147:9 152:12

177:6 250:7 252:4,12

256:4,5

sees 12:3

self 98:8 111:9

self-certification

102:16

self-certifying 98:4

self-install 224:13

sell 26:1,2 76:2 86:20

87:17 100:20 106:19

145:5 163:7 166:9

168:22 176:20 183:21

198:3 199:15 216:10

229:6 230:22 233:20

234:3,4 237:1,7

238:13 239:12 244:8

244:17 245:7 248:20

249:18 251:7,9

271:19 280:12 281:13

284:21 288:10

seller 239:1

seller's 244:7

sellers 244:10

selling 29:7 162:19

167:5 168:10 174:22

175:22 183:7 186:2,5

227:20 237:3 239:11

242:18 244:3 250:7

264:5,11 270:9,10

274:20 281:14 286:21

290:1

sells 99:19 271:18

272:16 279:1,6 285:4

285:5,7

send 63:21 152:9

248:16 249:12 297:14

sending 34:15 117:21

senility 72:14

sense 9:7 16:19 21:11

41:4 45:10 57:10

75:11 93:3 105:2

134:15 139:16 144:17

154:2 157:6 163:11

201:11 204:1 210:3

215:6 225:15 241:5

257:6 259:2

sensitive 26:5 64:5,6

sent 106:12 240:17

242:5

sentence 274:20

separate 39:10 58:5

131:17 163:9,11

166:12,19 167:12

180:14 191:17 210:20

226:16

separately 284:6

September 1:8 60:1

160:12

sequence 95:20

serial 65:6 138:20

serve 44:9

served 8:15

server 91:4

service 101:17 123:15

138:14 144:22 145:4

145:5,12,14,18 151:7

servicing 65:3 144:15

session 115:21

set 75:12 159:18 174:2

224:2 255:19 283:14

sets 165:12

setting 197:8 255:19

settle 29:19 32:16

258:2

settlement 29:15 32:4

222:21

seven 165:22 292:9

severe 251:9

shaking 7:7 86:12

127:7 214:21

shape 145:7 222:11

share 170:12

sharing 95:13

sharpening 94:10

sheepish 301:11

sheet 160:1 266:15

Shepherd 2:2 18:18,18

39:5 81:13 105:14,14

156:6,6 162:12,12

165:11 210:12,12

274:17,17

shifted 170:15

shingle 112:8

ship 69:3

shipment 256:4 268:5

shipped 12:14

shipping 123:19 256:6

shipwreck 213:7

shop 49:20 80:13

103:11 138:7

short 104:2 172:8

shorter 78:7

shouted 278:12

show 66:5 90:2 120:6

167:21 232:17

showing 75:22 157:13

297:19

shown 184:19 272:8,14

shows 101:8,16 160:1

shred 65:11

shutoff 15:18
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

327

sick 9:2

side 104:3,19 231:15

sides 25:10 220:12

sight 97:3 204:15

287:16

sign 20:15 100:16

123:10

signed 100:14

significant 154:10

257:10 280:18

silly 210:10

similar 66:15 68:14

77:19 153:6 163:8

271:21 286:8 289:5

similarly 218:13

simple 103:3 171:1

221:18 251:6

simplified 271:1

simply 76:13,14 77:2

112:6 119:18 200:2

252:11 268:5

single 9:12 98:13 114:3

227:2 274:4

singular 279:12

sir 267:8

sit 154:15 175:16

site 91:14 119:10 136:1

168:7 173:17 238:12

sites 120:2 233:18

244:17

sitting 233:17 263:22

situation 5:13 6:6 13:3

18:22 25:22 78:20

106:6 193:10 230:18

238:3 296:18

situations 8:5 34:7

six 47:6 72:19 165:22

242:18

sixes 165:22

size 18:4 58:14 60:21

112:5

size-fits-all 78:4

skeleton 300:19

skin 236:8 256:7

slate 211:9

slide 73:20 229:3

277:14,18 283:5

297:19

slides 228:14 283:16

slightly 23:16 217:16

236:5

slings 144:8

slip 79:13

slow 257:2

small 12:20,22 55:2

106:19 145:14 151:10

274:1

smart 40:1

Smith's 138:19

societal 9:4

society 157:17

sold 8:9 53:17 170:1

207:7 237:13 271:22

272:2 295:2

sole 249:8

solely 277:22

solution 261:5,15

266:10

somebody 4:6 14:22

30:18 34:1 74:1 80:1

98:21 102:2 104:1

106:13 110:13,16

116:17 121:7 126:20

127:19 140:9,13

144:5 152:12 153:21

167:21 169:15,16

173:16 180:11 204:14

208:17 209:12,14

224:17 233:16 234:6

234:12,14,21,22

238:10,11 239:11

247:5 248:15 258:5

269:19,20 289:7

somebody's 11:19

someone's 10:8 111:3

147:10

somewhat 41:3 146:7

281:4

soon 177:6 290:8

sooner 61:1 75:21

144:22 239:2

sores 235:21

sorry 9:10 11:11 42:13

72:5 96:12 106:2

117:13 185:2 199:3

267:8 292:11,12

299:3

sort 9:7 11:17 13:9 19:2

19:17 23:10 32:10

54:14 56:5 58:11 76:8

76:11 77:4,8 88:5

90:22 91:1 97:21

98:11 100:4 104:14

107:15 109:1 111:4

111:14,16 112:15

118:2 120:8 121:17

122:7 125:11 127:4

132:10 135:7 140:22

140:22 141:2 147:20

148:7 149:5,14

156:16,22 162:13,14

165:15 167:1 189:7

189:21 191:4 193:21

199:1 203:5 230:4

237:10 238:1 244:2

263:4 268:5 278:5

281:15 291:5

sorts 49:9 137:2

sounded 113:1 233:2

sounds 42:14 88:8

108:21 127:8 159:15

173:8 177:8 183:4

188:18 264:11 273:11

source 56:13 83:5

105:12 187:16,20

232:2,3,4,15,21 234:3

south 44:7 51:12,14

69:3 114:8,14,16

151:19 252:4

southern 51:15

southwest 44:8 138:16

space 58:4 73:18 150:8

150:15 160:6

span 244:6

speak 7:19 22:14 83:17

117:4 123:9 125:15

212:9 292:6 299:11

speaking 5:16 62:22

63:12

specialized 112:18

specific 21:12 44:6,11

140:15 141:5 190:11

219:8

specifically 41:10

171:15 202:5

specificity 108:1

specifics 120:5

specified 57:8 78:22

108:12 142:14,14

speed 256:18

spend 139:19 153:15

255:14

spends 6:11

spent 39:21

spiel 172:8

split 16:10 155:3 274:4

spot 116:20 233:11

250:20 300:20

spreading 221:6

stage 291:10

stake 207:13

standard 6:20 22:11,12

43:9 58:17 67:4,17

112:21 113:2 121:7

153:1 162:21 222:12

229:8 237:9,18 251:8

279:16 280:16 285:2

289:20

standardized 66:18

111:14

standards 1:3 3:12

30:12 34:14,16 44:5

44:13 48:13 49:4 52:2

53:16 54:2,5 67:13

69:1 75:14 76:1,16

87:20 107:8 135:3

137:10 138:3 148:6

155:20 156:1 166:6

175:17 182:19 187:13

199:19 206:12 214:13

219:5,12 272:19,21

273:17 274:8 279:13

281:10 297:7 300:9

standing 138:18

standpoint 83:19 99:13

105:11

STAR 118:9 250:6

start 4:7 9:22 30:21

31:6 33:3 34:3,4,4,14

59:15 62:19 63:9

72:13 74:14 76:5

87:13,19 106:7

119:13 158:12,22

159:8 160:16 161:3,7

212:15 232:3 238:2

243:18 254:19 260:2

271:14 288:21 293:11

300:15,19

started 4:4 162:14

starter 194:8

starting 34:18 76:2

87:14 101:4 106:16

263:21 277:4 282:14

starts 11:18 167:7

state 39:2 51:15 125:16

151:19 154:7 300:9,9

stated 130:13 178:6

296:4

statement 22:6 23:1

26:17 29:11 44:1,2

90:6

statements 120:15

130:6

states 50:4,5,7 51:6,7

114:15 151:15 272:14

status 24:1

statute 28:16 140:16

147:21 161:18 162:15

164:3 166:1,13

172:15 174:9 175:5,6

181:8 182:9 190:19

190:21 198:13,14

199:12 204:20 206:2

214:12 216:9,14

220:13 221:8 230:15

246:16 257:16 264:21

280:3 281:16 282:9

288:1 295:11

statutory 161:20 164:9

185:11 194:5 204:4

227:15,22 228:1

257:20 260:6,10,13
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

328

260:16 261:1 262:1,3

265:17 266:3 280:8

stay 13:18 14:4 58:7

125:17

staying 189:20

steamroll 32:19

step 14:1 82:16 139:18

160:20,22 167:2

226:11 256:12

step-wise 258:14

stepping 115:16

stepwise 258:21 259:15

Steve 1:21 18:1 36:22

68:8 79:15 81:19

86:13 99:13 101:1

103:7 104:4,7,17

113:15 119:7,21

120:3 123:17 135:16

143:2 150:1 167:16

169:9 173:5 177:19

183:9,10 185:6,16

186:4 187:1 190:1

206:8 207:19 214:19

231:11 233:1 235:3

235:13 238:5 250:9

263:16 269:15 286:13

Steve's 36:21 189:6

191:3 209:5 222:3

230:20

stick 7:12 148:13

205:16 211:15

sticker 64:20

sticks 222:16 296:17

sticky 58:6

stimulates 55:9

sting 187:4

stings 187:7 188:18

stipulated 123:5

stock 25:21

stones 144:9

stop 103:22 138:7

141:7 168:10 185:11

232:12,20 239:2

241:12 249:2 265:10

stopped 232:13 257:18

stops 237:22 238:6

265:3

storage 150:16

store 101:18,20 268:4

stores 175:12

story 209:19

straight 95:16

strategy 49:7

stream 184:4 286:20

streamline 286:9

stress 218:18

strides 134:3

strike 106:14 226:22

strikes 147:19

strings 120:11

strong 8:18 147:18

stronger 65:1

strongly 85:21

structure 216:16 257:3

structured 49:5 248:6

288:18

structuring 256:12

stuff 17:13 40:4 49:9

116:22 134:1 232:19

291:2

subject 38:6 44:5,13

49:3 79:19 80:4 114:7

161:8 206:6 284:1

submission 134:17

154:21

submit 136:1,3

subpoena 31:1,2 34:19

37:1 299:14,20,22

subsequent 9:14 24:16

subtract 301:3

success 150:19

successful 150:19

sudden 51:1

sue 7:1

sufficient 37:2 170:3

171:17 175:4 236:3

suggest 93:22 95:2

193:16 209:10 223:12

230:19 261:20,20

266:13 278:21

suggested 4:6 142:17

162:9

suggesting 129:1

130:16,19 272:10

283:20

suggestion 157:4

Suite 1:10

sun 64:21

supplied 202:4 237:15

supply 1:21 18:2 79:16

86:14 101:2 104:18

113:16 119:8 135:17

150:2 167:17 173:6

183:11 186:5 206:9

231:12 238:6 250:10

256:2 269:16 286:14

supplying 237:15 243:4

support 52:8 60:15

71:1,15 83:6 92:5

140:6 150:2 273:4

supporting 31:12 216:1

supportive 90:18

134:16 186:16 266:11

supports 132:21

supposed 93:14 101:6

101:7 104:19 154:1

195:12 223:21 256:15

296:19

sure 4:6 7:17 10:18

16:2,4 26:13 27:20

36:11,14 40:7 42:11

49:8,11 64:2 68:18

72:20 73:2 78:10

81:17 82:1,12 84:19

85:17 90:17 95:11,20

97:2 114:4 117:16

134:21 137:6 145:6

150:8 158:11 159:4

159:11 161:10 162:5

164:8,13 165:11,11

181:10 182:13 189:19

203:11 205:11 225:8

225:11 230:1 231:4

236:3 250:21 265:22

266:5,8 268:8 271:12

273:7,12 277:2

293:18 294:1,6

296:20

surface 43:5,12

surprises 235:12

suspect 234:13

suspected 3:15 134:12

switch 282:20

system 4:18 13:1 16:10

17:2,2,6,9 97:18

155:3 186:16

systematic 10:1

systems 274:4

T

table 3:1 35:19 36:15

37:12 60:7 61:7 70:11

73:21 89:1 109:7

195:17 213:13 233:14

233:17 271:10 282:11

tabled 284:4

tailored 190:11 202:5

tailoring 182:18

take 5:6 25:5 27:17,19

34:18 35:17 37:19

38:13 42:10,17 49:22

52:9,12 59:22 61:8

85:8 87:6 88:18 89:6

92:14,17 94:9 106:2

116:3,18 119:22

124:13,18 143:2

147:2 149:17 160:22

161:21 165:13 170:18

171:16 179:16 181:16

191:2 193:11 200:21

212:5 223:1 226:11

231:15 241:22 243:22

245:9 259:22 262:7

268:1 272:13 276:4

277:1 288:8 289:10

292:14

taken 20:9 22:7 72:16

145:11,22

takes 134:5,11 173:20

182:10 240:6 270:14

tale 206:21

talk 15:1,5,13 21:10

40:1 41:12,13,14,17

42:6 43:2 56:5 70:3

90:14 93:17 94:3

113:10 121:5 126:22

132:5 139:11 142:7

158:20 175:16 182:13

203:2,9 213:2,5,11

219:17 226:12 227:5

230:17 257:9 293:22

295:6

talked 24:11 40:6 53:21

74:17 100:8 108:15

114:13,14 134:15

149:20 151:22 179:21

179:22 201:12 240:2

280:2

talking 9:5 17:7 30:18

33:10,20 55:1 77:16

88:4 97:6 98:14 113:5

120:19 151:16 171:7

175:12 179:6 189:9

200:13 208:15 213:5

219:9,14 222:3

223:20 238:7 242:9

243:8 248:13 260:9

260:15,18,21 264:17

269:5 274:5 277:9

282:17 289:14,15

293:14

talks 120:2 162:16

166:7 198:1,14,15

targeted 12:3 98:16

task 27:11

tax 146:17,18,19 147:6

147:14

taxes 144:7

taxicab 33:3

taxpayer 209:3

teams 55:18

tear 3:7,16 40:18 70:2

142:6

technical 99:7

technician 101:22

technicians 116:9

technology 91:5

tee 39:17 95:15 156:21

158:9

teed 94:4

teeth 12:8 57:17

teleconference 2:19
(202) 234-4433 Washington DC www.nealrgross.com

Neal R. Gross and Co., Inc.

329

tell 4:22 34:8 60:22 97:2

103:17 114:2 121:1

136:22 141:7 177:17

207:4 226:6 234:12

238:11 239:8,10

268:16

telling 173:8 178:9

188:3 243:19

tells 106:15

temporarily 286:18

ten 42:18 92:17 144:1

148:7,10,20 172:11

197:4,5 212:1 290:7

294:4

ten-minute 212:5

tend 114:19

tends 160:8

tentatively 63:19 160:4

term 9:8 64:12 76:19

136:15 161:12 172:22

173:2 199:21,22

226:16 266:6,14

269:9 270:12 275:7,8

278:10 295:10

terminology 278:21

terms 19:4,16,21 40:11

40:12 74:20 86:18

87:2 103:7 107:21

111:18 125:2 128:3

131:19 142:4 148:5

163:17 173:2 177:13

200:9 226:21,22

251:20 263:15,15

265:17 266:16,18

268:19 284:9,18

291:9

territory 145:21 168:22

183:22 200:20,20

252:17

tested 148:17

testing 149:7 188:7

Texas 51:11,14,15

64:21 112:4 123:17

256:7

text 48:8 51:22 66:16

122:22 129:21 130:11

131:10 132:3 135:8

227:15,22 228:1

229:12 260:6,13

262:1,3 272:4 298:17

thank 9:10 48:17,21

50:12 59:5 96:16

134:7 284:12 293:1

thanks 60:15 129:12

theirs 214:14

thematically 76:12

thermostat 17:10

thing 7:5,6 8:3 10:4

12:10 18:17 20:10

24:12 25:4 28:4 34:3

41:12 47:8 49:16 54:9

68:11,14 71:6 78:6

84:22 88:13,22 93:7

98:12 103:4 106:16

107:5,10 108:19

115:4 120:8 142:1

144:3,13 145:8

146:19,20 156:17

158:11 160:15 167:6

170:4 171:9 174:18

176:13 180:14 182:16

197:15,15 199:8,8

201:5 205:5 207:15

209:4 215:19 216:20

218:19 223:15,19

228:20 229:10,15

230:12 232:5 235:20

236:9 245:8,8,18

261:9 265:6 280:14

292:20 298:7

things 5:10 6:5 7:12

13:9 18:5 21:17 24:19

25:13 27:10 38:3,14

40:17 41:5,6 43:8

49:9,17 52:6 56:8

62:13,16 64:18 67:10

67:11 73:10 74:9 79:6

80:22 82:7,11 95:18

97:2 100:9 107:12,15

110:2 119:5 121:13

137:3 146:4 147:2

151:5 160:9 161:13

161:20 163:12 165:9

165:13,16 171:7

183:7 184:2 188:5,7

188:16 194:3 195:21

197:2,4,5 198:3

210:22 213:12 215:4

215:7 216:4 223:17

225:3,8,13 226:22

234:17 236:15 244:8

246:22 251:1 252:18

253:3 259:4,12 260:3

261:14 262:13 290:9

293:7 300:7

think 6:9,16 7:5,10,20

9:5 10:3,10 11:3

13:21 14:7,8,21 18:19

18:20 19:10,14,18,19

20:5,9 21:2,5,7 22:4

22:13,17 24:4,9,13,22

25:1,6,12 26:14 27:6

27:16 28:8,20 29:10

29:17 30:4,6,11 31:1

31:7 33:8 34:10,11,12

34:15 35:6,13 37:4,8

37:16 38:17,18 39:5,9

39:16,17 41:12 42:6

42:12,15 44:3,18

45:11,16 46:11 50:8

50:13,14,18 52:12

53:3,22 54:7 55:10

56:4,8 57:5,12 58:13

58:16,21,21 59:1,4,11

59:16,18 60:5,17,19

61:16 62:6,17,20,22

63:2 64:7,8 65:14

66:4 69:5,18 71:4,11

71:15,20 72:22 73:4

73:13 74:3,5,10 75:2

75:12 76:3,10,11 77:4

77:10,14 78:4 79:16

80:3,16,22 81:3,12,17

83:17 84:18,21 85:4

85:19,22 86:14 88:3

88:10,16 89:10 90:3

90:12,16 93:22 94:1,8

95:6,22 96:10,19 97:3

101:18 102:3,4,13,18

103:7,13,17,17,20,21

105:15 106:5 107:11

107:17 108:6,19

109:20 110:15,22

111:1,6,14 112:7,14

112:14,15,16 113:17

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Neal R. Gross and Co., Inc.

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wrapped 108:19

wrapping 159:10

wrinkle 65:11

write 86:15 87:16 147:5

writing 96:6 123:7

215:14 283:20

written 202:16 248:10

259:6 267:16

wrong 4:14 5:1,6 7:6

8:9 14:16 16:18 18:4

18:16 25:3,4 26:10

30:19 144:14 170:4,8

203:20 223:19 236:19

250:20

wrongdoing 204:2

wrongly 6:13

wrote 85:13

www.doe.gov/region...

51:10

X

X 50:21 57:14 79:8

146:6 168:8 248:3

XY43 138:20

XYZ 138:20

Y

year 61:9 62:5,8 66:19

114:5 147:19 235:18

years 33:22 52:3 65:10

115:7 120:10 143:8

143:21,21 144:1,16

144:22 145:3 146:6

148:7,10,13,16,20,21

149:1 151:2,10

153:21,22 232:8

Yelp 7:4

yesterday 6:8 8:6 26:19

29:1 36:14 39:1 73:13

74:10,12 142:17

161:6,9 162:10

163:16 170:11 171:13

196:5 213:20 214:4

227:13 228:13 230:6

240:5 249:7 251:3

259:22 262:19 278:13

282:13 299:7

Z

zones 77:19

0

089 1:11

1

1 3:6,10,16,21 59:9

61:12 85:6,6 137:20

159:9 160:3

1-800 52:16 134:16

1-800-BAD-SEER 139:3

1:22 158:18

10 208:22

10:06 42:21

10:55 92:19

100 57:16 63:8 147:14

165:4 177:5 187:3

208:10

100,000 98:15

1000 1:11

107 3:12

11:06 92:20

12 69:2 148:20

12:13 158:17

13 19:5,6 26:1 44:6

53:18 78:22 123:18

152:12 177:6 252:3

252:12 256:4,5

133 3:13

134 3:16

14 19:5,10 26:2 45:8

78:21 147:9 250:7

14(c) 133:14

142 3:16,17

15 208:22

159 3:21

16 88:2 104:21

160 3:22

18-month 59:14 87:17

1B 96:19 97:5

2

2 3:7,10,16,22 137:21

159:9 160:3

2:13 212:7

2:49 212:8

20 23:20 44:14 49:4

147:13

20-some 123:21

2007 218:21

2014 1:8

2015 59:9 61:12 64:8

21 3:4

23rd 60:1

24th 60:1 64:2

25th 64:3

28 3:4

3

3 3:7,11,17

30 30:21 55:13 64:8

30-day 61:21

4

4 1:8 3:3,3,8,13

4:19 301:18

40 72:14 147:13

410 115:22

410A 64:20 115:21

44 3:6

45 276:11

5

5 3:3

50 147:13 151:15

168:17

6

6 3:4

60 168:17

608 105:4 184:1

7

70 3:7,7

72 3:8

73 3:10

8

800 137:17 147:7

85 256:21

8E 1:10

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 

334

Central Air Conditioning Regional

Standards Enforcement Working Group

US DOE

09-04-14

Washington, DC