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1

 APPLIANCE STANDARDS AND RULEMAKING

 FEDERAL ADVISORY COMMITTEE MEETING

 Department of Energy

 Forrestal Building

 1000 Independence Avenue, SW

 Washington, DC 20585

 Tuesday, April 30, 2013

 9:02 a.m.

Reported by: Natalia Thomas

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1 A P P E A R A N C E S

2 FACILITATOR

3 Neil Eisner

4

5 PARTICIPANTS

6 Karim Amrane, Air-Conditioning, Heating and Refrigeration

7 Institute

8 Timothy Ballo, Earthjustice

9 Laura Barhydt, U.S. Department of Energy

10 Jeff Bauman, National Refrigeration & Air-Conditioning

11 Alex Boesenberg, National Electrical Manufacturers

12 Association

13 Brice Bowley, GE Appliances

14 Mary Dane, Traulsen

15 Paul Doppel, Mitsubishi Electric US, Inc

16 Mark Fly, AAON Inc.

17 Geoffrey Halley, SJI Consultants, Inc.

18 Pantelis Hatzikazakis, Lennox International, Inc.

19 Charles Hon, True Manufacturing

20 Jill Hootman, Trane

21 Marshall Hunt, Pacific Gas and Electric Company

22 Tom Johnson, Daikin McQuay
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1 A P P E A R A N C E S (CONT'D)

2 Michael Kojak, Underwriters Laboratories LLC

3 Paul Lin, Regal-Beloit Corporation

4 John Mandyck, UTC Climate, Controls & Security

5 Karen Meyers, Rheem Manufacturing Co.

6 Peter Molvie, Cleaver-Brooks Product Development

7 Kent Peterson, P2S Engineering, Inc.

8 Neil Rolph, Lochinvar, LLC

9 John Sabelli, Consulting Engineer

10 Harvey Sachs, American Council for an Energy-Efficient

11 Economy

12 Ronald Shebik, Hussmann Corporation

13 Judd Smith, CSA Group

14 Louis Starr, Northwest Energy Efficiency Alliance

15 Phillip Stephens, HTP, Inc.

16 Russell Tharp, Goodman Manufacturing

17 Eric Truskoski, Bradford White Corp.

18 Collin Weber, Navigant Consulting, Inc.

19 John Cymbalsky, ASRAC

20 Ashley Armstrong, Department of Energy

21 Mike Rivest, Navigant Consulting

22 Dan Cohen, Department of Energy
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1 A P P E A R A N C E S (CONT'D)

2 Robert Whitewall, UTC TSNS

3 Frank Myers, PVI Industries

4 Mark Klein, Ion

5 Mark Menser, Intertect

6 Bill Dean, Boss Thermal Technology

7 Harris Merantan, Navigant Consulting

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

2 MR. CYMBALSKY: I'm John Cymbalsky, the DFO

3 for ASRAC. So, I want to welcome you all. We're going

4 to wait a couple more minutes. I think we're waiting

5 on a few more members to show.

6 MALE SPEAKER: What's a DFO?

7 MR. CYMBALSKY: So, I'm the guy who gets all

8 the, you know, I'm the downhill guy, right. No.

9 Designated Federal Officer.

10 MALE SPEAKER: Thank you.

11 MR. CYMBALSKY: So, nobody told me what that

12 actually means legally, but that's what I am. But

13 anyway, a few more minutes. Just a couple of things.

14 If everyone could just switch their microphones so that

15 the green light isn't showing and get used to turning

16 them on and off when you speak. Hit it once, the green

17 light will come on. When you're done speaking, the

18 green light will go off. It helps with the feedback

19 for the webinar.

20 Okay, so I think we have critical mass now

21 from our group and so once again, welcome to the

22 working group for certifying commercial, certain types
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1 of commercial equipment. Hopefully, this will -- this

2 process will prove to be very productive for all of us,

3 and again, the Department's goal here is to get to a

4 conclusion that we could all be somewhat comfortable

5 with, if not happy.

6 I'm just going to go over a few ground rules

7 in the room and in the building, and then after I

8 speak, we're going to turn it over to John Mandyck,

9 who's on the phone, who's going to give a brief welcome

10 from the main ASRAC committee.

11 So anyway, most of you are probably familiar

12 with the building, but we have outside restrooms on all

13 four corners of this building, so it's just a big

14 square. You have one on either end here, but if you

15 walk down those other corridors, you could find two

16 more restrooms on each side. When we take a break for

17 lunch or we take a coffee break, elevators outside to

18 the right go down to the ground floor; there's a Dunkin

19 Donuts to your left and the bigger cafeteria for lunch,

20 longer walk to the right and up an escalator or two.

21 We prefer you not to leave the building just because of

22 the security process here; it's sometimes a little more
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1 strenuous then we would like when we're on a tight

2 schedule, so we could all walk as a group down to the

3 cafeteria at that point.

4 Ground rules for when you speak. Again, we

5 went over the microphone, but each time you speak,

6 please give your name and affiliation so that the court

7 reporter knows who said what. We are taking a

8 transcript of this meeting and it will be made public a

9 week or two after. Let's see, any other issues? We'll

10 go around and introductions in a little bit, but for

11 now, let me pass it over to John Mandyck and he can

12 give you a brief welcome. John.

13 MR. MANDYCK: Good morning.

14 MR. CYMBALSKY: Are you on the space shuttle?

15 MR. MANDYCK: No, I'm on a regular phone.

16 MR. CYMBALSKY: We're getting some bad

17 feedback. Are you on a speaker phone?

18 MR. MANDYCK: I'm hearing feedback as well.

19 MR. SACHS: What happens if you turn off your

20 mike?

21 MR. CYMBALSKY: I've got it all the way down.

22 MR. MANDYCK: Are you still there?
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1 MR. CYMBALSKY: I don't even know how to turn

2 this one off. Yeah, there's nothing I can do. Can you

3 try again, John?

4 MR. MANDYCK: How's that? Is that better?

5 MR. CYMBALSKY: That's much better. Thank

6 you.

7 Okay, well, good morning. Thank you, John,

8 and good morning to everybody. I apologize that I

9 can't be there, but I wanted to welcome the group on

10 behalf of the large ASRAC committee and on behalf of

11 myself and Kent Peterson. We are the two ASRAC members

12 designated for this working group. We're very pleased

13 that this group has assembled. We have tremendous

14 expertise in the field at hand and the issues that we

15 have to resolve, and we hope that everybody comes with

16 a constructive hat on, with an eye towards problem

17 solving, and examining all the issues that we have to

18 face, and there are several.

19 This is the very first working group of the

20 ASRAC, and I think that speaks to the importance of the

21 issue at hand, and the critical nature of the issues

22 that we have to revolve in a very short period of time.
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1 So, we look forward to everybody's constructive

2 participation. I can come back later and describe how

3 the ASRAC has approach the issue of quorum and

4 consensus when that times appropriate on the agenda,

5 but for now, I'll just turn it back over to John and

6 again say thank you for your participation.

7 MR. CYMBALSKY: Okay, thank you, John, and at

8 this time, we're going to have a bit of an ethics

9 discussion from a representative from general counsel.

10 MS. HYMER: Good morning. My name's Tina

11 Hymer. I'm with the general counsel's office and I was

12 asked to give you all an ethics briefing and just talk

13 about some of the highlights of the Federal Advisory

14 Committee Act and how it's going to apply to you and

15 the subcommittee.

16 First off, I want to let you all know that

17 none of you here are actually special government

18 employees, which, and I'll tell you what the

19 significance of that is, and you're all probably going

20 to breathe a sigh of relief when I tell you this, but

21 special government employees are appointed to some

22 federal advisory committees to provide their expert
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1 unbiased opinion and as a result, we apply the federal

2 conflict of interest rules to them in carrying out

3 their duties as a committee member. The ethics

4 restrictions are criminal, and they are in regulation,

5 so they are fairly strict about what they can and can't

6 do, and they have to fill out financial disclosure

7 reports. None of you have to do that.

8 But I'm here because the federal -- what

9 federal advisory committees do is open to -- it is --

10 we are very open. We let the public in. We let them

11 see drafts. We let them see what time committees are

12 doing and in some cases, the subcommittees, and what

13 we're trying to do is basically protect the integrity

14 of the committee's work, and the work that you all are

15 doing for us quite frankly, for free, and so with that

16 we do have some policies that we apply to other members

17 who are serving on federal advisory committees who are

18 not special government employees, and that's what I'm

19 here to share with you today. I probably won't take the

20 full 15 minutes, but I would welcome any questions.

21 Please feel free just to chime in while I'm going

22 along.
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1 So, one of the things that we ask all of our

2 committee members to refrain from doing is

3 participating in any particular matter that is going to

4 have an effect on that specifically involves your

5 company that you work for, so you are all here

6 representing viewpoints of companies, similar

7 viewpoints of companies of where your employers might

8 be engaged in.

9 For example, maybe appliance companies, but

10 you're not here to specifically represent your

11 company's interest and nor do we want you to.

12 Actually, if there's anything -- and this is probably

13 so far down the weeds that it might not even come up,

14 but if there's something specifically involving your

15 company that is put before you, we don't want you to

16 participate in that. So, if something like that should

17 come up, please contact John and John will be in touch

18 with either Dan or somebody in our office and we'll

19 work out how you can go forward in participating, but

20 that's not to that if just because your employer might

21 have an interest in obviously what's going on here, or

22 else we wouldn't have you here at the table, that you
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1 can't participate. We just don't want you to

2 participate in something very specific where your

3 employer is actually a party. It might be a contract

4 or a grant, and I think that's going to be probably so

5 far down in the weeds that that's not going to happen

6 here, but if it does, I just want to make sure that I

7 mention that.

8 Also too, you are going to have access to

9 very high level officials here at the Department. I

10 understand some of you might have other business that

11 is going to be done with these employees at DOE. We

12 ask that you use your time here to conduct committee

13 business. If you have something else with the

14 Department, please schedule some time aside from the

15 committee's meetings to carry out that business, and

16 not use the committee's time because quite frankly, we

17 just don't have you here long enough and we want to

18 make sure that we get all the good information that you

19 have to provide during that time.

20 The other thing that I want to mention, too,

21 is that this is subcommittee to a much larger

22 committee, and so the work that you are going to do
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1 here is to, is ultimately going to go through the full

2 committee. I want to make sure that this wasn't an

3 open -- is going to go through the full committee, and

4 so with that, your advice, while you're providing it,

5 should not just go directly to DOE. There are

6 obviously DOE people in this room that are providing

7 staff support; they are going to be providing

8 information for you and briefings. However, when your

9 -- when you draft a report and it's going to be in

10 draft format, because the full committee has to vote on

11 that before it comes to the Department, what we don't

12 want is we don't want you to be taking that draft

13 report and giving it directly to DOE, so basically, a

14 preview of the advice that's going to come out at this

15 subcommittee.

16 We will be here, like I said; there's going

17 to be staff here. They're going to know what's going

18 on, but we just don't want whatever ultimately your

19 draft report is going to say should not come to the

20 Department. It has to go through the full committee, so

21 that is just something to keep in mind as part of --

22 and that's part of the federal advisory committee.
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1 That's part of the Federal Advisory Committee Act, and

2 that's what allows you all to after you leave today to

3 actually have discussions that, you know, either via

4 teleconference or video conference, without having to

5 announce in the public because ultimately everything is

6 going to be deliberated at an open and full public

7 meeting.

8 Is there -- does anybody have any questions

9 at this time about just our ethics policies, the

10 Federal Advisory Committee Act? No? Okay. Well,

11 that's all I have for you all. If you have any

12 questions though, I would suggest that you touch base

13 with John and he will get in touch with our office, or

14 Dan, and we're happy to help and provide whatever

15 assistance that you all need. Thanks so much.

16 MR. CYMBALSKY: Okay, looks like we have a

17 very ethical group here. Nobody had a question, so

18 they know the ground rules. So at this time, we're

19 going to go around and give introductions. Just to let

20 you know, we have 43 participants on the webinar, so

21 pretty big group today.

22 So, as I said before, I'm John Cymbalsky.
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1 I'm the DFO for ASRAC, but on my day job, I also manage

2 the appliance standards and building codes programs

3 here at DOE, and I'll turn it over to Neil to introduce

4 himself, and we'll go around the table first and then

5 I'd ask everyone to speak clearly and into the

6 microphone. Please give your name, your company

7 affiliation and maybe a brief couple of words about

8 what products, if you're a manufacturer, what product

9 lines and that kind of thing as we go along.

10 Neil?

11 MR. EISNER: Thank you, John. My name is

12 Neil Eisner. I'm going to be the facilitator for these

13 discussions. My job is to make sure all of you agree

14 by helping you. I'm going to go into more detail later

15 on on what that's going to involve, and Dan will give

16 you a little more background about me when he

17 introduces me for that purpose.

18 MR. BAUMAN: Hi. Jeff Bauman, from National

19 Refrigeration & Air-Conditioning. We're a small-to20 medium size manufacturer of commercial refrigeration

21 and HVAC equipment, located in Pennsylvania.

22 MS. MEYERS: Good morning. Karen Meyers,
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1 Rheem Manufacturing Company. We manufacture

2 residential and commercial HVAC products, water heating

3 products, boilers, and pool heaters.

4 MR. MOLVIE: Good morning. I'm Pete Molvie

5 with Cleaver-Brooks. We're a boiler manufacturer,

6 manufacturing boilers ten horsepower to 500 horsepower

7 which would be comparable to these standards.

8 MR. BALLO: Tim Ballo. I'm an attorney with

9 Earthjustice, and the only thing I manufacture is

10 documents.

11 MR. AMRANE: I'm Karim Amrane. I'm with the

12 Air-Conditioning, Heating and Refrigeration Institute,

13 HOI Trade Association representing manufacturers of air

14 conditioners, heating products, as well as

15 refrigeration products.

16 MR. SMITH: Hello. Judd Smith from CSA Group

17 in Cleveland, Ohio. We are a test lab.

18 MS. HOOTMAN: Hello, I'm Jill Hootman from

19 Trane, Russel Ran. We're a manufacturer of commercial

20 and residential HVAC products.

21 MR. HON: I'm Charlie Hon with True

22 Manufacturing. We manufacture commercial
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1 refrigeration, usually self-contained.

2 MR. HATZIKAZAKIS: My name is Pantelis

3 Hatzikazakis from Lennox. I'm the director of

4 engineering for commercial equipment from 2 tons to 50

5 tons.

6 MR. SHEBIK: Hi, Ron Shebik with Hussmann

7 Corporation. We manufacturer commercial refrigeration

8 products.

9 MR. KOJAK: Michael Kojack with Underwriters

10 Laboratories located in Plano, Texas, where we're a

11 third-party test lab for HVAC and refrigeration

12 products.

13 MR. DOPPEL: Paul Doppel with Mitsubishi

14 Electric and we manufacture ductless split systems and

15 also variable refrigerant flow work VRF commercial

16 systems.

17 MR. THARP: Rusty Tharp with Goodman

18 Manufacturing. We're a small player in the commercial

19 heating and air conditioning market.

20 MS. DANE: Mary Dane, I'm with Traulsen out

21 of Fort Worth, and we make commercial refrigeration

22 equipment.
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1 MR. SACHS: Harvey Sachs, American Council

2 for an Energy-Efficient Economy.

3 MS. BARHYDT: Laura Barhydt. I'm the DOE rep

4 on the working group and I also am Assistant General

5 Counsel for Enforcement.

6 MR. FOLPH: Neil Rolph with Lochinvar.

7 Lochinvar is a wholly owned subsidiary of AL Smith

8 manufacturing residential, commercial water heaters,

9 boilers, swimming pool heaters, storage tanks.

10 MR. STEPHENS: Phillip Stephens, Mass Process

11 Engineering HTP. We participate in commercial and

12 residential boilers. Commercial and residential water

13 heaters, solar thermal systems.

14 MR. CYMBALSKY: Dan? No. No. We'll just go

15 around the rest of the room. Did we get everyone?

16 Please, everybody in the room.

17 MR. JOHNSON: Hi, I don't think this is

18 working.

19 MR. CYMBALSKY: Yep, it's on.

20 MR. JOHNSON: Hi, my name is Tom Johnson.

21 I'm with Daikin McQuay. McQuay is heavily vested into

22 the larger applied commercial business in the HVAC
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1 industry.

2 MR. MYERS: Frank Myers, PVI Industries.

3 We're manufacturers of very large one off custom built

4 water heaters and boilers, storage tanks.

5 MR. STANONIK: Frank Stanonik, AHRI.

6 MR. KLEIN: Mark Klein with Ion, we sell

7 commercial HVAC package.

8 MR. MENSER: Mark Menser, Intertect. We do

9 performance and safety testing on this equipment of

10 interest.

11 MR. SABELLI: John Sabelli, formally of

12 Intertect, now Sabelli Engineering Consultants.

13 MR. BOESENBERG: Alex Boesenberg, Electrical

14 Manufacturers Association.

15 MR. LIN: Paul Lin of Regal-Beloit

16 Corporation, manufacturer of electric motors.

17 MR. DEAN: Bill Dean, director of engineering

18 for Boss Thermal Technology. Rusty, it's been 20

19 years, buddy.

20 MR. RIVEST: Mike Rivest, Navigant

21 Consulting.

22 MR. MERANTAN: Harris Merantan, Navigant
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1 Consulting.

2 MS. ARMSTRONG: Ashley Armstrong, DOE.

3 MR. CYMBALSKY: Okay, I'm just going to

4 introduce those on the phone who are part of the

5 committee who could not be here in person, but are

6 voting members of this working group. So, we have Kent

7 Peterson, who is also on the parent ASRAC committee.

8 He's with P2S Engineering Incorporated. We have Eric

9 Truskoski from Bradford White Corporation. Louis Starr

10 from the Northwest Energy Efficiency Alliance. Brice

11 Bowley from GE. Geoffrey Halley from SJI Consultants.

12 John Mandyck, who has already spoken this morning, from

13 UTC, and Marshall Hunt from Pacific Gas and Electric

14 Company, and with that, I'm going to turn it over to

15 Dan for a few more words.

16 MR. COHEN: I'm Dan Cohen of the general

17 counsel's office here at DOE. So, I want to introduce

18 Neil Eisner, who is the facilitator for this session of

19 trying to negotiate this issue but I want to talk first

20 about what the facilitator does and who he is and then

21 talk about Neil in particular.

22 So, the facilitator's job basically is to
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1 keep the conversation moving, right, to make sure that

2 no one is talking over each other, and just have

3 general decorum; that way the conversation functions.

4 And that's pretty straight forward in any public

5 meeting that you've all been to here; right? We have

6 someone just kind of running the process. But the

7 other thing the facilitator does in a negotiated

8 rulemaking, which is just more subtle and in many ways

9 more important, is to try to facilitate consensus. And

10 that's what we're ultimately about here, is trying to

11 get to an agreement. But the facilitator is someone

12 who has no role in the process other than trying to

13 reach consensus. He has no background in the issues at

14 all.

15 In fact, when I talk about Neil and introduce

16 his background, you'll see he has not the slightest

17 knowledge of anything having to do with HVAC or

18 commercial refrigeration equipment and that's in fact

19 important, right, because he comes in with no

20 preconceived notions, no thoughts about who's right or

21 who's wrong or anything, but he can listen. He can

22 hear. He's a smart guy, and he can try to help make
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1 suggestions about, you know, maybe what about this,

2 what about that, without having a stake in what the

3 outcome is and that's the key part of that job, right,

4 is to try to make people sort of think through issues

5 in ways that maybe they hadn't, or so see issues

6 without any end, other than the process.

7 So, that leads to Neil. Neil just

8 unfortunately for the rest of us in the federal

9 government, Neil just retired after, I don't want to

10 say how many years, but a lot of years in the federal

11 government. He was the Assistant General Counsel for

12 Regulation and Enforcement at the Transportation

13 Department, so he was responsible for planes and trains

14 and automobiles. Obviously not appliances; right?

15 So -- and but -- that's understating Neil's

16 role. Neil was in many ways sort of the dean of

17 administrative lawyers in the federal government;

18 right. Every one of us who does administrative law in

19 the government went to Neil with questions about

20 administrative law, and he really did sort of lead the

21 thought process of administrative lawyers in the

22 government. So almost all of us have had some
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1 relationship with Neil over time, and Neil in part has

2 helped with processes like this at other agencies and

3 in the Transportation Department. How many negotiative

4 rulemakings have you worked on as the DOT person?

5 MR. EISNER: Ten or fifteen.

6 MR. COHEN: So, ten or fifteen negotiative

7 rulemaking, where he was actually DOT representative,

8 not as the facilitator.

9 MR. EISNER: Not as the representative. I

10 was involved in one way or the other.

11 MR. COHEN: But not as a facilitator. This

12 is the first time he's doing this as the facilitator,

13 but he has a lot of experience, obviously, in this

14 process, which does lead to one issue that I just want

15 to raise so that people are aware of: the DOE rep on

16 this committee is Laura Barhydt, as you know. Laura

17 has been at the Department of Energy for four years

18 now, but prior to the Department of Energy, Laura

19 actually worked at the Transportation Department as an

20 attorney in one of the operating modes, the pipeline

21 and hazardous safety materials administration.

22 Neil worked in the general counsel's office
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1 for the Department of Transportation, but they both

2 worked as lawyers at the Transportation Department so,

3 just so you know, they did during the course of their

4 time, have interactions as lawyers at the

5 Transportation Department, but since then have had no

6 professional interaction whatsoever on any DOE issue,

7 but just to make that clear. Anyway, with that, I'd

8 like Neil to talk about the role of -- or how

9 negotiating rulemaking works.

10 Neil.

11 MR. EISNER: Thank you, Dan.

12 I know many of you but not all of you have

13 not had experience in negotiated rulemaking, so don't

14 hesitate to stop me while I'm talking if you want me to

15 expand on any point or explain it a little more

16 clearly. I wanted to talk about the what, the why, the

17 where of regulatory negotiations so you have a good

18 understanding of how a process like this should work,

19 and if it's set up well, it should work that way.

20 First of all, what is it? It is a bringing

21 together by the agency of representatives including

22 representatives of the agency, who are affected by the
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1 rule that is under consideration, or at least the

2 problem that is under consideration that could lead to

3 a rulemaking. You're supposed to sit down around a

4 table like this and negotiate a solution to that

5 problem. It may not lead to rulemaking. You may all

6 agree that rulemaking is not necessary. You may think

7 guidance is necessary. You may not think guidance is

8 necessary, that's up to you to decide but, you try to

9 do this by consensus. No one party can control the

10 process because it requires consensus of the people

11 sitting around the table. You decide, and I'll get

12 back to that in a few minutes, exactly what consensus

13 is in this group.

14 Why would you use this process? Why not use

15 the normal rulemaking processes or come in and ask for

16 the usual guidance you might ask for from an agency?

17 Well, because we have found over the years -- over 60

18 years now with the Administrative Procedure Act -- the

19 statute that governs rulemaking generally in the

20 federal government, we find that it can be adversarial.

21 The agency, no matter what efforts it may make, ends up

22 putting out its proposed solution to a problem and it's
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1 something that a lot of people feel they need to attack

2 or find fault with.

3 So the concept was, let's start with the

4 problem. For example, on a case like mine, it might be

5 too many people are dying in frontal collisions and

6 accidents. Instead of the agency saying, "What do you

7 think about requiring air bags in all cars," the agency

8 could go out and convene a group like this and say,

9 "How do we fix this problem? How do we address the

10 fact that 12,000 people a year are dying in frontal

11 collisions in automobile accidents?" So you're focused

12 on a problem.

13 It's a better opportunity for everybody to be

14 heard. It's one thing to sit down and write your

15 comments in a proposed rule, it's another issue to come

16 in and sit down around a table and say we have a

17 problem. We have a problem in the way you're applying

18 something or the way you're thinking about fixing

19 something. We want to sit down and talk about how to

20 fix the problem that you want to address. You have an

21 opportunity to be heard in a back and forth discussion.

22 As a lawyer for many, many years in the government, I
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1 always wish I had more opportunities to sit down with

2 the people who are affected by the rulemaking decisions

3 we are going to make and find out what they thought.

4 One thing; it was very, very hard, very

5 difficult to come to this conclusion, but you do learn

6 when you're in the government -- at least most people

7 learn -- you don't have all the answers. You don't

8 have all the information. You don't have the only

9 solutions to the problem. If you don't think that way,

10 if DOE didn't think that way, they wouldn't have

11 convened a group like this.

12 It's also an opportunity to get a better

13 rule. Going back and forth like this can allow us to

14 come up with better rules. Dan talked about one of my

15 jobs is to listen to one side talk, another side talk,

16 a third side to talk, and without knowing the

17 substance, say what I'm hearing is, is this little bit

18 of difference.

19 "What if we said the following in the

20 document or what it we took such and such out of the

21 document that we're drafting, would that help? Why

22 wouldn't it help? How could you fix this problem that
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1 you see in this language that's on the piece of paper

2 right now that we're all trying to negotiate?" It's a

3 better opportunity than you submit your comments, the

4 agency goes out with a supplemental notice of

5 rulemaking and says, "All right, we've modified our

6 proposal, what do you think of this?" It's more of an

7 interchange. It's more of a better understanding of

8 what the problem is all about. It can lead to the

9 faster solution of a problem.

10 My department was involved in the first

11 regulatory negotiation of over 30 years ago. The

12 agency issued 2 NPRMs to try and address the problem

13 over a period of three or four years and got nowhere.

14 They had to withdrawal the NPRM, start over, withdrawal

15 the second MPRM and figure out, had to figure out what

16 to do. So, they said, "Let's bring the party in around

17 the table and sit down and see if we can negotiate a

18 solution to this problem," and they did. They were

19 successful. Were they faster? Well, they couldn't get

20 anywhere with the Administrative Procedure Act process.

21 Most importantly, it doesn't matter what I

22 put in a rule; if I'm not going to get good compliance,
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1 I'm going to have problems achieving my objective. The

2 problem I want to fix, if I'm the government agency.

3 So most important is, if you all sit around the table

4 and help develop the solution to the problem, you'll

5 have had the opportunity of participating. You'll feel

6 good that you've been heard, and as some people said to

7 us during some of the earlier negotiations we had, they

8 said, "I now have a better understanding of why you

9 can't do exactly what I would like. I've heard the

10 views of everybody else around the table and I now see

11 some of the difficulties in doing just what I want, so

12 I have to give in a little bit."

13 In the end, however, I should get a rule that

14 I can more easily comply with and I understand all the

15 other issues you have here. One of the things you

16 always have to think about in negotiations is, what's

17 the alternative to the agency rule? If I can't work it

18 out around this table with the agency rep at the table

19 who just has one vote around the table, if I can't work

20 it out then, what am I going to end up with? We all

21 would like something written exactly for us, but we

22 can't all get that. If everybody has a slightly
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1 different problem, a slightly different concern, a

2 slightly different issue, the whole thing, this whole

3 process, is based on getting consensus, but one of the

4 things we found out in government agencies over the

5 years, and the people I've talked to and other agencies

6 besides DOT agree on this is, even if we can't get the

7 consensus, the fact that we came to the table in good

8 faith, the fact that we all talked in good faith, the

9 fact that we brought out information describing why we

10 have a particular problem with one solution and

11 somebody else has a particular problem with another

12 solution, even if we can't get consensus, the agency

13 and the public generally agrees that the agency is

14 better able to write an effective rule. They've

15 learned a lot just sitting around the table hearing the

16 good faith discussions.

17 We had one party or one major party and they

18 brought other major parties with them, walk out of

19 negotiations on the DOT with a very important

20 rulemaking, so we wrote the best rule we could with the

21 information we had gathered and the negotiations and

22 with the other information we had, and a couple years
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1 later, I got a call from a staffer on a committee in

2 Congress saying, "We want to have negotiated rulemaking

3 used in a particular problem, and we want you to bring

4 in the following kinds of organizations to help you

5 solve the problem." And I said, "Well, those

6 organizations include some who walked out on an earlier

7 negotiation. They walked out of the process." They

8 said, "Yes, but they felt it was a good process. They

9 felt it worked. They just knew they couldn't get what

10 they wanted in a particular area and they didn't want

11 to negotiate anymore. They still were happy with the

12 process and want to try it again."

13 All kinds of subtle messages you get out of

14 what works, what doesn't work. Why wouldn't you use

15 regulatory negotiation in all rulemakings, well, we

16 can't take our time to come to the table in every rule

17 making issue. Many of them are relatively routine

18 matters. Many of them you're not going to have any new

19 information to give to us. It can be costly. It can

20 be very time consuming. It has to be used in the

21 appropriate cases.

22 Well, what are the appropriate cases? Let me
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1 give you a rough idea of some of the things that you

2 look at when you're trying to decide whether to do

3 negotiated rulemaking. Are the issues right for

4 resolution? If we need two years of research before we

5 can gather enough information to solve the problem

6 we're here to address, we can't use regulatory

7 negotiation. We have a deadline that we've got to

8 meet. We have a rule that's going into affect. At the

9 same time, if you point out a very serious problem

10 that will require more research and does get the

11 consensus of everybody around the table, the agency

12 will hear that and they'll know whether or not maybe

13 they need to postpone the effective date of the rule if

14 more work is needed.

15 You don't want to have any fundamental

16 interests, and even this can vary if you go through

17 time and people find out about the process. We started

18 out with the idea that you cannot negotiate issue

19 involving access to transportation systems for people

20 with disabilities because they thought access to

21 transportation systems was a constitutional right that

22 they had. They came to us years later, representatives
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1 of the community of the disabled and said to us, we

2 want to negotiate. We believe we can get a better rule

3 if we sit down around a table and negotiate with you.

4 But another example that I would put on the

5 table now is, I wouldn't want to be at the Department

6 of Health and Human Services and suggest negotiating a

7 rule about abortion. People are not going to

8 compromise on that. People are not going to give in on

9 their interest in an issue like that. You want to make

10 sure that people sit around a reasonably good-sized

11 table and can be heard often enough so that their voice

12 will be made, will be heard at the table, so you want

13 about 25 people.

14 In fact, the expert who wrote the paper that

15 first came up with the 25 said he wasn't sure what the

16 number should be. He was in a law firm conference room

17 when he counted the chairs around the table and they

18 came to? I want to make sure you're paying attention.

19 They came to 25. You want to have diverse issues. You

20 want to be able to trade something off. You want to be

21 able to say you know, I can live with a little less

22 than perfect for me on this if I can get what I want
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1 over here. So, there's only one issue on the table,

2 you can't have tradeoffs, so people will do that.

3 We've also surprisingly learned how much they

4 were willing to trade off, and when they did say I

5 don't like where we came out on this issue, but I know

6 I'm going to get what I want on this other issue, and

7 in balance, that's better for all of us. Got to have a

8 deadline because otherwise some people, even after they

9 say they would come to the table in good faith, may

10 want to delay because if they can delay every day, they

11 may be saving money or they may be preventing something

12 from happening. So, you want to have an effective

13 deadline, whether it's statutorily created or created

14 by some other means.

15 There are other factors, but this is just to

16 give you the rough idea the kinds of things that

17 agencies look at when they're making a decision about

18 whether to have a negotiated rulemaking and whether it

19 can be effective. How does it work? Well, Dan told

20 you a little bit about the process, and you've been

21 involved in the first stages of the process.

22 The agency identifies a neutral convener who
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1 can go out and talk to all of the affected interests,

2 and incidentally, learn from the affected interests

3 whether there are others that the agency didn't

4 identify initially and then they'll go in and talk to

5 more people. One of the reasons for picking a neutral

6 here is because the government official, the Assistant

7 Secretary for X, may think, "I know five or six of the

8 key people, I'll go talk to them and see if they're

9 willing to come to the table and negotiate in good

10 faith." They're not going to tell that government

11 official if they don't think it's a good idea. If they

12 sense that the government official wants them to come

13 to the table in good faith, many of them are going to

14 say, "I better come."

15 So, you send a neutral, and I've seen the

16 neutral conveners' reports before. I've also gotten

17 briefings for things they didn't want to specifically

18 put in a package because they didn't want to name

19 names, where they said they don't think -- certain

20 party doesn't think they can come in good faith

21 because, and they give their reason, and then the

22 agency looks at that and they say, "I've got a weigh in
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1 there. I need that party at the table and they've got

2 a good justifiable reason for not coming, so we can't

3 use negotiated rulemaking." If the convener submits a

4 report that justifies convening the group, people will

5 come in good faith. People understand what they're

6 going to be talking about at the table. They think

7 they can work out a solution as you all said when you

8 talked to the convener, then the agency will convene an

9 advisory committee. They want to do it through an

10 advisory committee under the statute Federal Advisory

11 Committee Act.

12 We can't, in a government agency, get advice

13 from the public unless it comes through an advisory

14 committee that is chartered and follows all the other

15 requirements of the statute. If they establish a

16 committee, they usually pick someone like a facilitator

17 or a mediator to help the parties get to consensus. A

18 mediator would be someone who is more skilled than a

19 general facilitator like me, in trying to get people to

20 work on an agreement. The facilitator's purpose, as

21 Dan said -- and I'm going to go into a little more

22 detail -- is to help you, not to make any decisions,
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1 but to try and help you get there.

2 Why would we do all this if we still in

3 accordance with the APA have to then publish what you

4 recommend to the agency, publish it for comment under

5 the APA? Well, because we found that if we do this, we

6 will get fewer, less adverse comments as part of the

7 notice of proposed rulemaking process. If we do our

8 job well, we'll get fewer, and they'll be less adverse

9 comments. Timewise, it may sound like you're adding on

10 additional steps, but you can go with the shorter

11 comment period. It may take less time to resolve the

12 comments that you do get in and you'll get to the final

13 rule more quickly.

14 The other thing is that we may reconvene the

15 committee. If you want to be reconvened, the end of

16 the process, you can say, "I want a summary of the

17 comments. I want to see what they said as a committee

18 and we want to recommend were there any changes were

19 warranted as a committee." You don't have to. Some

20 agencies think it's an important part of the process,

21 some agencies don't think that it's necessary to

22 reconvene.
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1 We have found -- DOT, I keep saying "we," I

2 have to get out of that mode -- but when I was at DOT,

3 we found that if the process worked well, because we

4 got so few comments since they will so, there was so

5 little adverse in them that it paid to bring the

6 committee back to review a summary of the comments and

7 decide whether more was warranted. It didn't require a

8 lot of work, and in fact, sometimes it was done through

9 e-mail contacts where they e-mail out the summaries and

10 then people would vote through e-mail and say, "I don't

11 think it's necessary" or "I think it is necessary to

12 reconvene."

13 So again, we can talk about that as we start

14 talking about some of the rules that we're going to

15 have the committee governed by. The procedures are

16 relatively simple. We're going to go on to that this

17 afternoon. You decide what they should be. If you want

18 to, you can decide when we break for lunch. You can

19 decide whether we should meet here or we should meet

20 elsewhere. You're going to decide all of that. The

21 whole idea is to set up a bunch of procedures that you

22 all feel confined with that will better help us come to
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1 a consensus on what we want to do.

2 Let me talk a couple seconds, a minute or so,

3 about the authority to do all this. The administrative

4 procedure act which governs the rulemaking process does

5 not preclude the use of negotiated rulemaking. DOT,

6 EPA and other agencies felt we had the legal authority

7 under existing requirement such as the Federal Advisory

8 Committee Act to do this. Some agencies said no, I

9 need specific authority to do a regulatory negotiation.

10 So, to alleviate their concerns, Congress passed the

11 negotiated rulemaking act which establishes a framework

12 for negotiations like this. It talks about the

13 convening process I've described. It talks about use

14 of facilitators or mediators. What it makes very

15 clear, however, is that it, in quotes, "Does not limit

16 innovation and experimentation." Basically, it says

17 here's a good way to do it. Here's what's suggested.

18 Here's what's been used by others, but in your

19 particular case, if you want to try a slightly

20 different approach to solving the problem, you're

21 entitled to talk about that, get the consensus of

22 everybody around the table.
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1 Three key points I want to make. First --

2 actually, before I forget, the agency, by the way,

3 cannot legally delegate its authority to anybody else

4 to make the decisions it is responsible for under

5 statutes, but there's a representative of the agency at

6 the table and that agency representative is part of the

7 convening process, it is decided that she will be able

8 to directly access the senior officials who do make the

9 decision on behalf of the agency. She has to represent

10 them. She has to have every day access to them. She

11 has to be able to say the committee is going in this

12 direction, are you comfortable with my taking a

13 position in support of going in this direction? If

14 necessary, she has to talk to the Office of Management

15 and Budget or go through Dan Cohen to talk to the

16 Office of Management and Budget, but the agency in the

17 end makes the decision.

18 I am not aware of any case where an agency

19 representative sitting at the table with everybody else

20 agreed to something that the agency decided it could

21 not follow. That doesn't mean I'm aware of every one

22 of them. A number of agencies have used this quite
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1 frequently, but I am not aware of it ever not working.

2 It's a legal requirement that the secretary not

3 delegate this authority, but it has never been an

4 obstacle to an effective decision.

5 Now, my key three points. You're here in

6 good faith to participate effectively to try to resolve

7 the problem that you all face. I read the convening

8 report. I read that everybody felt it is worth coming

9 to the table to try and negotiate a solution. That is

10 extremely important. I have been involved in

11 negotiated rulemakings where some people did not come

12 in good faith. It complicated matters. It made things

13 difficult, but it can, even under those circumstances

14 work, but you want to all be here with the idea that

15 you're going to do something positive.

16 The focus -- this is very important --

17 especially if you've not spent considerable time in

18 negotiating anything, contracts, whatever -- the focus

19 should be on the problem. Don't think about your

20 interest. Don't think about the agency's interest.

21 Don't think about where you think the agency

22 is coming from or where somebody else around the table
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1 is coming from. Think about the problem: 12,000 people

2 are dying every year in frontal collisions. How do we

3 solve this problem? That way, you get people not

4 digging in their heels and saying, "This is my idea,

5 I'm not going to give in on it. This is my interest."

6 How do you do this? How do you focus on the

7 problem best? Well, obviously, you don't want to

8 attack. You don't want to attack people, but you don't

9 want to attack others suggested solutions. You want to

10 feel free around this table to throw ideas out. You

11 want to say what about without having had the

12 opportunity to think about what you're about to

13 suggest. It just came to you. You heard John say

14 something and you heard Bill's response to it and you

15 think about what if we do X. Feel free to throw that

16 out.

17 Don't attack the people around the table for

18 doing that kind of a thing. Ask questions. Don't make

19 statements; that's a bad idea. Say why do you think

20 that will work here? Where did you get that

21 information from? Why do you think in this particular

22 situation there won't be a problem with why? People
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1 when asked questions will respond more positively then

2 when challenged. They then start to dig in their heels

3 again, so think about these things when you're working

4 around the table. Think about wording your statements

5 or turning your words from a statement into a question

6 if you were about to do that. Think about other

7 possible alternatives. Alternatives to achieve your

8 objectives without defeating the objectives of somebody

9 else around the table. So, you're interested in

10 efficiency, somebody else is interested in the cost of

11 the efficient way you want to do it. Is there a way

12 for you to solve that problem by making what you want

13 to achieve in terms of efficiency more palatable to the

14 person that's worried about the cost? So, try to think

15 about alternatives.

16 In fact, before the next meeting, start

17 thinking about the alternatives you want to put on the

18 table if your initial alternative meets some objections

19 that you can't overcome. Think about the various ways

20 you can achieve the objective that you want out of

21 these discussions. That will also help the other

22 people get to where they want to be. My third point
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1 is that if this is done right, if it is done well, it

2 should lead to a better understanding, more

3 information, and a better rule, as I said earlier, even

4 if there is no consensus, or better guidance or

5 something along those lines.

6 What's my job? My job again is not to make

7 decisions. My job is not to push for a particular

8 decision. That's why Dan said it's good that I don't

9 understand this stuff. I read the convening report and

10 all I could say was huh. I mean, I couldn't quite

11 figure out how all this equipment worked. Couldn't

12 figure the technicalities of it, and then of course,

13 there were the formulas that I had to look at. I

14 remember one person once was trying to express a simple

15 and plain way to describe something he had just

16 discussed in three paragraphs, and he had one page to

17 summarize it. It was all a formula. The classic,

18 "it's Greek to me," so that can be very good.

19 I may have to ask you to explain things to me

20 a little bit better so I can try to suggest something

21 that can help solve it, but I don't have any particular

22 incentive here. I don't have any particular thing that
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1 I want to do other than to help you all reach

2 consensus. I'm going to probably spend a lot of time

3 listening to what you say. I'm going to probably tell

4 you -- I'm going to tell you if I think you're not

5 listening well. I'm not going to tell you in front of

6 everybody else, but I may go up on a break or I may go

7 around the table and say I don't think you're listening

8 clearly to what that person is saying or I may say to

9 you, if I have to, and I don't want to ever get to that

10 point, "I don't think you're negotiating in good faith.

11 I think you should be putting other alternatives on the

12 table."

13 I shouldn't have to get to that point, but I

14 may hear it from others around the room. I keep saying

15 things and Bill isn't listening. I keep saying things

16 and Jane comes back with nothing that has to do with

17 something that I am saying, so I may have to talk to

18 everybody involved in separate breakout sessions and

19 that's an important thing to remember. I was very

20 surprised in the first negotiations that I attended for

21 the one on FAA for flight and duty time limitations. I

22 was very surprised at how much happened outside the
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1 room. You may want to raise your hand and say, "I

2 suggest we take a break now because Jill wants to go

3 talk to John, John wants to talk to Jane. Maybe they

4 should talk together."

5 This doesn't just mean talking to the person

6 who you're disagreeing with. It may mean talking to

7 the persons you're representing. You represent an

8 interest, not your company. Somebody from the room is

9 involved in your interest, is affected the same way

10 you are on this particular subject matter. You may

11 want to take a break to say, "Is it okay if I agree to

12 do the following?" All of these discussions you may

13 want to bring me into. I shouldn't have to force my

14 way in. I don't want to force my way in. If you think

15 I can help you in break-out sessions outside the room,

16 fine, call on me.

17 We'll be having meetings, I think, between

18 the regular meetings of this full group when you ask a

19 subgroup to go work on a particular problem. If you

20 want me to attend those, if you think I can help, fine,

21 bring me in. Talk to me about it. So, again, I'm here

22 to help facilitate the discussions. I'm here to, you
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1 know, for you to talk to during breaks when you don't

2 understand how things are working and when you want to

3 know a better approach, you know, do you think it would

4 be better if I did the following here? I'd be glad to

5 give you my thoughts. I'd be glad to give you my

6 ideas.

7 Remember, I'm not the expert on this

8 substance. I'm not the one who is going to come up with

9 the solution. You are going to come up with the

10 solution.

11 Any questions for me? I teach classes, 50

12 percent of the final grade is based on the quality and

13 the quantity of the questions you ask. You can't

14 possibly understand everything I just talked about, so

15 you should have some questions for me.

16 Yes?

17 MR. SACHS: Harvey Sachs. To what extent is

18 their flexibility about the scope of the issues we're

19 dealing with? This came up a fair number of times in

20 some of the initial conversations.

21 MR. EISNER: We're going to, as you know,

22 talk about scope this afternoon. It is on the agenda
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1 and I think we have --

2 MR. SACHS: I can't wait.

3 MR. EISNER: I didn't think you would want to

4 wait. I think that's a very good question. I

5 understand there are disagreements over the scope. If

6 this group can't reach consensus on what they're going

7 to negotiate, then we're not going to reach consensus

8 on the issues themselves, so we're going to have to

9 talk this afternoon and see what we can do and what we

10 can suggest.

11 MR. STEPHENS: Phillip Stephens, HTP. You've

12 mentioned the word "consensus" several times, and you

13 said that you would be speaking more to that point

14 about how we will define "consensus." Could you

15 elaborate on that a little bit?

16 MR. EISNER: Sure. That's a good point.

17 Part of the ground rules that we're going to discuss

18 after the break are going to be the rules by which we

19 make decisions in this group. There are various kinds

20 of consensus. Everybody around the table, every one of

21 the 25 -- I think it is exactly 25 representatives --

22 has to say yes or we don't have consensus. That's one
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1 form of consensus.

2 Other times people will say, "Well, on this

3 particular issue, the five of us represent one

4 interest. The four of them represent another interest,"

5 et cetera. Each interest should have to say yes. So,

6 you vote as a group in the bloc. You can define

7 consensus any way you want. If you are only

8 comfortable with everyone at the table having to say

9 yes, then that's what you have to decide.

10 Let me point out, however, how some of the

11 things have worked in the past in my experience. We

12 have had situations where a union representative came

13 up and said, "I'm not happy with where we're going on

14 this, but I now have a better understanding from

15 listening to the discussion why I have to accept this,

16 but because my members will be upset that we agreed to

17 this, I can't vote yes for this. But if you vote

18 against me on that issue I'm willing to accept that or

19 I'm willing to abstain on that issue and let you all

20 vote yes."

21 Abstentions done, you can say it in the draft

22 ground rules that were circulated to you to consider to
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1 read to get an idea of what the prior group DOE had

2 used, you can say, "Consensus is no one raising their

3 hand and saying 'no.'" So, we'll go through a

4 discussion. I'll say, "Does anybody else have any

5 other views? It appears we've reached consensus. Does

6 anyone disagree?" If no one raises their hand, that

7 could be consensus. Other questions? I got two people

8 with passing grades so far. All right. I think it's --

9 anybody on the -- somebody on the phone have a

10 question?

11 MR. COHEN: The one translation point is --

12 this took me a while to get used to it too when I first

13 came to the DOE. Sorry. The one translation point --

14 this is Dan Cohen from DOE GC. The one translation

15 point I would mention is Neil in his very comprehensive

16 discussion talked up about an NPRM. You all know that

17 as an NOPR. The whole rest of the government calls

18 them NPRMs, Notice of Proposal Making, but DOE has, in

19 typical DOE fashion, come up with our own acronym, so

20 when Neil refers to an NPRM, we would call it a NOPR.

21 MR. EISNER: Give me some slack on that. I'm

22 still not used to it. I can't call it a NOPR. Okay,
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1 if no one has any other questions, why don't we take a

2 15 minute break?

3 (Whereupon, a recess was taken.)

4 MR. EISNER: We asked everybody to bring with

5 them the draft of the ground rules that were used by a

6 prior DOE negotiating committee, just to give them an

7 idea of what went in that document, what kind of

8 language they worked out, but also because when I read

9 them, I thought that they had crafted it fairly

10 carefully, and fairly well, so it might be something

11 where you want to consider using some of the same

12 language and part if not, you don't obviously want to

13 use them on all parts because if nothing else, you've

14 got to change the name of the group, so I thought that

15 might be a good start off point. But before we get

16 into the details, any questions? Any comments? Any

17 concerns about ground rules? Anything anyone wants to

18 talk about?

19 Okay, we have them on the screen behind me.

20 If there's any confusion about parts that we're talking

21 about, we can always point up there but I think you'll

22 have an easier time reading them on your hard copy.
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1 Obviously, we want to change the name of the group in

2 the heading and then get into the first ground rule.

3 The first one they have is the goal of the committee.

4 Any discussions on what the goal could be? Do we want

5 to talk about the goal? Does anybody think we should

6 follow a different format or should we go through this

7 one by one and see if we want to match it or change it

8 in a different way?

9 MR. COHEN: We are quickly going to put this

10 up in a Word document so that if there are edits we can

11 just make them in real time.

12 MR. EISNER: Good idea. Let me draw your

13 attention to the first thing, the goal of the

14 committee. Obviously, the goal of the committee name

15 would change, but the two line summary, how would you

16 suggest we word it?

17 Yes?

18 MR. SACHS: Harvey Sachs. I'm not sure how

19 we can reach consensus on the goal until we have a

20 fuller understanding of the scope. That's a place

21 where this differs from the Transformers.

22 MR. EISNER: First question I would ask is
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1 there a general way that we could describe it that

2 would leave open the discussion on the goal or the

3 group can just decide that it wants to leave this off

4 until this afternoon.

5 MR. SACHS: I don't know of a generalization.

6 I've been trying to think of one and wonder if we want

7 to defer that until we've had a R-R chance to explore

8 some of the interactions around the set of issues.

9 MR. EISNER: Okay. Other thoughts? Other

10 concerns?

11 MR. SACHS: I may regret this.

12 MR. EISNER: Okay, Charlie.

13 MR. HON: Charlie Hon, True Manufacturing.

14 There's also a difference here because the one that's

15 put up there is basically a single product, two

16 separate subgroups of a single product. In this group,

17 we have four basically different product natures, so

18 it's going to be much more difficult to define then a

19 single product group.

20 MR. EISNER: Now, you're saying we need more

21 time during the day to work that out or are you saying

22 you think we may not be able to put a goal on a piece
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1 of paper?

2 MR. HON: I think it's going to be much

3 broader because it's a broader scope. As Harvey

4 mentioned, there's multiple facets. This one, the one

5 before us is a single item. It is transformers. Only

6 partial scope with a total transformer market as well,

7 while this group has commercial refrigeration in it.

8 It has HVAC in it. It has boilers in it. It has

9 electrical componentry in it, all of which have

10 different problems built into what we're going to try

11 and solve here.

12 MR. EISNER: Other thoughts?

13 MR. THARP: This is Rusty Tharp. We could

14 say something to the fact that if you want to address

15 it now, we can say we just want to reach consensus on

16 the issues identified in the scope in regards to

17 commercial certification.

18 MR. EISNER: Reactions to that.

19 MR. MOLVIE: Pete Molvie with Cleaver-Brooks.

20 I guess I have a question as to what the initial scope

21 was. The announcement in the Federal Register that

22 gave notice of this working group had specific issues
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1 that were identified. Is that the limited scope of

2 this group or is it open to expansion to other issues

3 as well? And those issues, if you don't have that in

4 front of you were strategies for grouping models for

5 purposes of certification; identification of non6 efficiency attributes which not impact measured

7 consumption; the information that is certified to the

8 Department; the timing of when the certification should

9 be made relative to distribution and commerce; and

10 alterations to basic model that would impact the

11 certification. Are we limited to that scope or is

12 there more to it that we can add?

13 MR. EISNER: What I heard earlier in the day

14 was that we want to talk about the scope specifically

15 this afternoon. Let me ask whether there is a way --

16 looking at the model here, the goal of the committee is

17 to reach consensus on a recommended, and then I'm not

18 exactly sure how I would word this, but something along

19 the lines of an effective measurement for energy

20 efficiency of the products covered by this rulemaking.

21 MR. BALLO: Tim Ballo with Earthjustice. I'd

22 suggest a recommended set of compliance obligations
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1 related to energy efficiency standards for the products

2 at issue because certification itself is kind of a term

3 that reflects the scope of the rulemaking as being only

4 confined to certification and not other aspects of what

5 compliance obligations could improve.

6 MR. EISNER: Any other thoughts on this?

7 Should we put some of these phrases maybe on the

8 caption behind my back. Should we put some of these

9 phrases up on the screen so that we can talk about

10 that?

11 MR. DOPPEL: Paul Doppel with Mitsubishi.

12 Yeah, some of the things that impact this or

13 identifying what models need to be tested, the testing

14 of those models and then determination of the metric

15 for the -- either the compliance with the certification

16 or not so it's more than just determining a metric of

17 the energy efficiency. It's the whole process involved

18 with it, and then compliance certification also is part

19 of that, compliance verification.

20 MR. EISNER: Others? Do you want a goal that

21 is very general and broad? We want to achieve an

22 effective measurement for something, or do you want a
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1 list specifically for each type of equipment, a

2 particular goal?

3 MR. STEPHENS: Phillip Stephens. You mind if

4 I share a microphone with you?

5 MR. EISNER: You can share my microphone.

6 MR. STEPHENS: I think what we're looking for

7 is big picture the same, the same scope for each of the

8 different product classes, but at a 40,000 foot level,

9 the details become much different for each group.

10 MR. EISNER: You're going to be working on

11 those details.

12 Here what we're talking about are ground

13 rules for getting to those details, so that's why I'm

14 questioning whether you would feel comfortable with a

15 general description such as we mentioned over here, or

16 whether you want to go into the details. I suggest you

17 repeat your phrase to be captured on the screen up here

18 someplace; we can at least have a phrase that we're

19 looking at and see if that would work for some people.

20 You actually have the computer. I have the computer.

21 So, I have to type and talk at the same time? Can we

22 have someone else? I have enough trouble typing when
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1 I'm not talking, and I'm hoping you remember what it

2 was.

3 Ready for us? Okay.

4 MR. STANONIK: Excuse me a minute while we've

5 got dead time here. I'm Frank Stanonik with AHRI and

6 I'm just confused because the Federal Register Notice

7 said the purpose of this working group is to undertake

8 a negotiated rulemaking to discuss, and if possible,

9 reach consensus on proposed certification requirements

10 for commercial HVAC, water heating, and refrigeration

11 equipment. To me that, sounds like a goal. What am I

12 missing?

13 MR. EISNER: Others around the room?

14 MR. ROLPH: This is Neil Rolph. I agree with

15 that. I just wrote the same thing right out of the

16 document. I mean, that's what we're trying to do here,

17 is reach consensus on the certification requirements.

18 That's what we've been talking about for several years

19 now, and specific to the HVAC water heating and

20 refrigeration.

21 MS. BARHYDT: This is Laura Barhydt. Hi, I

22 agree, and I think that that broadly stated as a goal
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1 doesn't limit us in our scope discussions later this

2 afternoon as to what all that may encompass.

3 MR. EISNER: I think that's an important

4 point, Laura. We can go back to this later after the

5 fuller discussions and decide if we want to change the

6 goal one way or the other. Does anybody disagree?

7 Somebody wants to speak in the back?

8 MS. ARMSTRONG: This is Ashley from DOE. I

9 just want to clarify one thing. What you're reading

10 from the Federal Register Notice about the initial

11 scope is what ASRAC handed down to this committee, so

12 when the larger group at ASRAC met, those were the

13 initial issues that we identified that the committee

14 may want to tackle. That doesn't preclude you from

15 adding, changing, editing, removing this afternoon,

16 broadening, tightening. Those are for discussion and

17 for you guys to deal with, but those are the initial

18 set that ASRAC was like, "Hey, can you guys think about

19 these?" Just to clarify.

20 MR. EISNER: That's very helpful.

21 All right, is there anybody who disagrees

22 with taking the language from the notice and making it
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1 the goal under number 1?

2 MS. MEYERS: This is Karen Meyers from Rheem.

3 So is it just to reach a consensus on certification or

4 should we also put in certification and compliance

5 requirement because to me those could be slightly

6 different?

7 MR. SHEBIK: This Ron Shebik with Hussmann.

8 I agree with Karen. I was going to add, we're loosely

9 using the term "certification," but should be also be

10 looking at other things like compliance verification

11 enforcement, or can we say "certification" covers all

12 those areas?

13 MR. EISNER: People more comfortable with

14 adding language there or fine with just "certification"

15 as it was in the Notice? John Mandyck wants to talk.

16 John, it is John, isn't it? John, did you have

17 something you wanted to add on the phone? All right.

18 MS. BARHYDT: John, we can't hear you.

19 MR. EISNER: Let's go back to that

20 discussion. Would people like more words or are they

21 comfortable with certification?

22 MR. BALLO: Tim Ballo with Earthjustice. I
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1 guess if we all just agree that to us "certification"

2 means more than maybe just, you know, the initial test

3 tore use of the AEDM that you do before you introduce a

4 product then we can use "certification," I guess.

5 MS. MEYERS: This is Karen with Rheem. I

6 guess I'm interested in, you know, how DOE would define

7 certification with that, so if, you know, does

8 "certification" cover compliance and verification, or

9 to me, as a manufacturer, they're a little bit

10 different, so I just want to make sure that if we agree

11 that moving forward, you know, we agree --

12 MS. ARMSTRONG: So when we say

13 "certification," we're referring to a certification of

14 compliance, but I would agree that if you want to deal

15 explicitly with how a determination of compliance is

16 made, or from the manufacturer perspective or for

17 enforcement, then those are slightly different concepts

18 and I do think it's a good idea to include those

19 explicitly.

20 MR. EISNER: Anybody object?

21 MR. HATZIKAZAKIS: I agree to include it,

22 because we have nothing to lose if it's included. It
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1 doesn't take away anything from the first statement, so

2 by including it, we'll make sure later we cover for

3 sure both of the items.

4 MR. EISNER: Anybody object to that? All

5 right, I believe we have consensus, but we haven't

6 defined consensus yet. I believe we have consensus on

7 this particular point that we will add the word

8 compliance, certification and compliance.

9 MR. BAUMAN: I can type it if you can tell me

10 exactly what you want to say.

11 MR. EISNER: All right, she's typed in

12 proposed. That doesn't preclude, as I said, the idea

13 if you want to come back at the final rule stage, which

14 we'll get to later, we can take the "proposed" out.

15 MR. BAUMAN: Would we want to use

16 "recommended" instead of "proposed"? Isn't the

17 ultimate goal to recommend to DOE?

18 MR. EISNER: We could put "recommended" in

19 there. Anybody disagree with changing "proposed" to

20 "recommended"? Nobody disagrees. Okay, while she

21 types in the rest of the title, I think we can get to

22 the second category, which is participants.
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1 MR. MOLVIE: Can I just add one more comment,

2 and I think it would be beneficial to insert the word

3 "efficiency" before "certification" so we know what

4 type of certification we're talking about.

5 MR. BAUMAN: Energy efficiency?

6 MR. EISNER: Energy efficiency. Any

7 objections?

8 MR. HATZIKAZAKIS: When we do the testing, we

9 include the total performance of the unit. You have

10 capacity and EER. So, if it's one word, it would be

11 total performance of the unit, not just efficiency, or

12 we have to list capacity, EER, and airflow.

13 MR. MOLVIE: I can accept "performance"

14 instead of "efficiency."

15 MR. EISNER: Is there a consensus?

16 MR. SACHS: I think the term we're looking

17 for might be closer to "DOE-regulated performance

18 criteria," because we're not dealing with the

19 electrical safety and variety of other things.

20 MR. EISNER: The recommended DOE?

21 MR. SACHS: "Recommended DOE-regulated

22 performance parameters."
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1 MR. EISNER: Any objection to that add?

2 Okay?

3 MR. CYMBALSKY: I'm going to speak on behalf

4 of John Mandyck because we can't get the communications

5 working, but John would like to add some notion that

6 this goal should include quote, unquote, "The avoidance

7 of market disruption."

8 MR. EISNER: Comments?

9 MR. HATZIKAZAKIS: In thinking about it, yes,

10 we should include it, if everybody agrees.

11 MS. BARHYDT: Is that one of the goals or is

12 that one of the criteria that people are going to be

13 considering in reaching consensus?

14 MR. EISNER: Would "effective" be acceptable

15 to everybody? "Effective efficiency"? "Effective of

16 performance certification"? Does "effective" bring in

17 marketplace issues?

18 MR. BALLO: Tim Ballo with Earthjustice. I

19 don't know that we need to put "effective" in there. I

20 mean, we're not going to agree to something that's not

21 going to be effective, I would assume, so...

22 MR. EISNER: Very important point. This is
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1 just your goal. This is not what has to be in the

2 document. Do you need an adjective there?

3 MR. BAUMAN: I don't think we need

4 "effective" in this. It reads better without it.

5 MR. HATZIKAZAKIS: Yeah, we don't need it.

6 MR. EISNER: Again, we can come back to this

7 after we've had more discussion during the day. I also

8 hopefully want to leave open an opportunity for John to

9 get back by some communication to see if he's okay with

10 it, so if everybody agrees for no, let's go on to

11 number 2. Right, number 2 is talking about the

12 participants.

13 MR. HATZIKAZAKIS: Excuse me. Excuse me.

14 Did we understand what John said, though? Didn't he

15 mention something about disrupting the market? So, I

16 don't think taking away "effective" or whatever the

17 word we just did is what he's talking about. I'm

18 talking for him by the way. I'm trying to understand

19 what he meant to say or to request.

20 MR. EISNER: Maybe I misunderstood. I

21 thought we were agreeing we didn't need anything in

22 there right now.
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1 MR. HATZIKAZAKIS: But I don't think that was

2 what he was interested in. I'm trying to -- can we get

3 clarification of what he was really after? Am I the

4 only one who --

5 MR. ROLPH: Wouldn't that come into one of

6 the scope items. I mean, do we really have to force it

7 into the goal here? To me, that's a scope item.

8 MR. HATZIKAZAKIS: I'm not arguing the point

9 where it belongs. What I'm saying is, if John believes

10 that that statement needs to be somewhere on the

11 document, we better make sure that we all know about it

12 and we place it where it belongs. So I think we're

13 trying to get his explanation.

14 MS. BARHYDT: I think we're going to have to

15 come back to it.

16 MR. HATZIKAZAKIS: Okay. Let's keep it in

17 mind.

18 MR. CYMBALSKY: I understand what you're

19 saying, but the question is do you want that in the

20 goal or is that an obvious part of the process?

21 MR. DOPPEL: Paul Doppel with Mitsubishi. I

22 think that probably where he's coming from is the fact
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1 that we've gone a little bit of time here on the AEDM

2 waiting on that, and that we've had those delays here

3 because of concerns of the impact of the certain

4 rulemaking would have had on the industry, so I think

5 he's wanting to make that as part of the goal that

6 whatever outcome there is would not disrupt the

7 marketplace. So, I would be in favor of including that

8 in the goal.

9 MS. MEYERS: This is Karen with Rheem. It's

10 kind of like two goals. We want to come up with an

11 effective process, but we also want to make sure that

12 it is -- does not result in market disruptions so, we

13 did, you know, and we're under a time crunch here as

14 well, so it is an important goal I think of this group.

15 Whether it goes into the overarching goal, I think

16 maybe bears just a little bit more discussion, but it

17 is a very important goal I think that this working

18 group was tasked to address in their recommendations.

19 MR. MANDYCK: This is John Mandyck. Can you

20 hear me now?

21 MR. EISNER: Yes, John?

22 MR. MANDYCK: Okay, maybe we've resolved
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1 this. So, back on the other point related to market

2 disruption; the only reason why I bring that up is that

3 if this committee doesn't achieve its goal, we have a

4 pending deadline of a certification rule that will take

5 effect at the end of this year that many of the

6 industries can't comply with, so the -- if we don't

7 succeed, there is the chance that there will be market

8 disruptions, so I just think we should keep that in the

9 front.

10 MR. EISNER: Okay. Is there agreement then

11 that we should leave that phrase in -- put that phrase

12 in there?

13 MR. HATZIKAZAKIS: Yep.

14 MR. BALLO: Tim Ballo with Earthjustice. I

15 guess to the extent we're leaving "effective out," the

16 goal is sort of neutral. We're not saying our goal is

17 to have stringent strong performance certification

18 requirements or that they will be the least burdensome

19 performance certification requirements, so we're just

20 going to agree on a set of recommendations and

21 obviously, you all are not go going to agree to

22 something that's going to disrupt the market, and I'm
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1 not going to agree to something that is totally

2 ineffective, so I don't think the goal needs to go into

3 that much detail.

4 MR. BAUMAN: This is Jeff Bauman for National

5 Refrigeration. I think what I'm kind of hearing --

6 what John was saying was almost like an addition to the

7 end of what we stated as the goal. At the end of the

8 statement we made there, "commercial HVAC, water

9 heating, and refrigeration," quote, "without disruption

10 to the market place," which might not be so bad, but I

11 guess and appreciate John bringing up the point about

12 the deadline at the end of this year.

13 I think one of the things that I'm curious

14 about, and maybe out of my own ignorance, does this

15 potentially, part of the work of this group, also go

16 back to DOE and say, "We believe you should delay

17 implementation for another year or 18 months" or

18 whatever? I would hope that's going to be because

19 whatever we come up with is going to be, assuming we do

20 achieve the deadlines that are in front of us,

21 complying by the end of the year for manufacturers is

22 going to be a challenge, so would that be part of this
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1 also?

2 MS. BARHYDT: So, the goal is to reach a

3 consensus, and this is going back to the market

4 disruption issue, and I think what I was hearing Tim

5 say is that he's not pushing for it to say that it's

6 going to be a tough stringent one, and that's sort of

7 his -- where he's coming from in the negotiation, and I

8 think what John Mandyck is saying is that where he's

9 coming from is he want to achieve a rule that is not

10 going to have market disruptions, and so those are

11 different viewpoints that are going to go into reaching

12 the consensus, but that's built into the word

13 "consensus," that we don't have to itemize every single

14 individual viewpoint and what each individual goal is

15 in the overarching goal statement.

16 The goal statement is just stating we want to

17 reach a consensus on a way forward, and that is going

18 to involve taking a lot of different perspectives into

19 consideration. I think that if we start itemizing all

20 the individual viewpoints where we're going to end up

21 trapping ourselves in a box with our goal statement

22 before we've even started a negotiation.
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1 MR. EISNER: Your goal is to achieve

2 consensus on something. If it has to be consensus, do

3 you need to define it in detail in your goal?

4 MR. MOLVIE: Pete Molvie, Cleaver-Brooks.

5 I'm pretty sure we're not going to reach consensus on

6 something that would impact the marketplace, so why

7 does it need to be in the statement?

8 MR. EISNER: And I assume we won't achieve

9 consensus on something that doesn't achieve the

10 necessary energy efficiency.

11 MR. CYMBALSKY: Right.

12 MR. EISNER: That would be difficult to

13 enforce. So what I'm hearing is some suggestion that

14 we don't need more adjectives in the goal, but I'm

15 hearing some people still concerned they want to be a

16 little more specific in the goal.

17 MR. AMRANE: Would there be an opportunity to

18 revise the goal later on during the day?

19 MR. EISNER: Yes.

20 MR. AMRANE: So let's move on.

21 MR. EISNER: This document is not a binding

22 document. You as a group can always decide even during
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1 the negotiations you want to change it in some way.

2 Does everybody agree that we should leave it as is and

3 go on and we can always revisit it if necessary?

4 John, are you still on the phone? John will

5 get another chance if he wants to go into this. So, go

6 on to number 2.

7 MR. HATZIKAZAKIS: Excuse me. If you go all

8 the way to the end of this document, it does make the

9 statement about future amendments any way so, we will,

10 if we're going to have the opportunity to revisit, we

11 can do that. It's part of the document already.

12 MR. EISNER: Okay. We can always go back

13 when we get John on the phone.

14 Let's try to get to number 2. Participants,

15 you can see this covers a broad range of issues about

16 the people who are participating in the committee,

17 attendance at meetings, things like that. Why don't we

18 start off again, just in order if it's okay with

19 everybody with interest represented. Any reason to

20 change that? Okay, anybody disagree? B has to do with

21 parties in the negotiation. It seems to be rather

22 straightforward. Any suggestions about changes? All
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1 right, paragraph C, subparagraph C has to do with

2 committee members. Again, I think this is just stating

3 a fact, you've been appointed by the Secretary, et

4 cetera. Anybody have any suggested changes?

5 MR. HATZIKAZAKIS: Are the committee members

6 appointed by the Secretary or by the ASRAC committee?

7 MR. EISNER: They're appointed by the

8 committee under Federal Advisory Committee Act.

9 Appointed by the Secretary to the committee under the

10 Federal Advisory Committee Act. Anything about

11 alternates for committee members that's different here?

12 MR. HATZIKAZAKIS: No.

13 MR. EISNER: Any reason to word this

14 differently? Okay, paragraph E gets to additional

15 interests. We can allow others, according to the way

16 this one is written, to join with the concurrence of

17 the members on the committee. Anybody have any

18 concerns about this? Any questions in the audience?

19 MR. STANONIK: I don't mean to bog this down.

20 Frank Stanonik, but this is a working group and yet you

21 keep calling them committee members and I think it

22 would be a lot clearer for everyone if we just said
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1 "working group."

2 MR. EISNER: I agree with that. I had a note

3 myself to talk about this because I was not sure why it

4 was called a committee when the official title is

5 "working group," but you'll see later on we get to a

6 working group title and we're going to probably have

7 the call that a subgroup, so our official editors over

8 there will hopefully pick up on all of that.

9 MR. SACHS: I'm Harvey Sachs. I'm half

10 facetious, but is "concurrence" different from

11 "consensus"?

12 MR. EISNER: You know, again, I don't know

13 what they intended here. Do you want to change that

14 word?

15 MR. SACHS: I don't know if I want to or not

16 because I don't know what it means. It could mean a

17 majority vote. It could mean a consensus, and I don't

18 even know if it's important, so I'm asking for guidance

19 on that first.

20 MR. EISNER: Again, I don't know, Dan, if you

21 have any idea what they meant in the first committee.

22 MR. COHEN: In that prior situation, it was a
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1 different word deliberately, but it never came up, so

2 it never actually got tested.

3 MR. EISNER: Anybody want to change it? Hope

4 it doesn't come up?

5 MS. BARHYDT: Where was it?

6 MR. SACHS: Second line. District members.

7 MR. CYMBALSKY: There are only 25 members of

8 this committee?

9 MR. EISNER: So we couldn't add more?

10 MR. CYMBALSKY: We couldn't add any more

11 anyway.

12 MR. EISNER: Does this committee not have 24?

13 MR. CYMBALSKY: You know what, it only had

14 22.

15 MR. EISNER: Okay. So we probably should

16 take that out.

17 MR. CYMBALSKY: Yeah, unless somebody

18 resigns.

19 MR. STEPHENS: I think Harvey has an

20 excellent point. I think take out -- Phillip Stephens.

21 I think Harvey has an excellent point. I think we

22 should leave that in there in case something happens,
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1 and someone did have to resign, it would leave us the

2 opportunity to appoint another member.

3 MR. EISNER: So maybe just precede that

4 sentence with a phrase "if a committee member resigns,

5 committee -- the working group can add one," is that

6 okay with you?

7 MR. ROLPH: This is Neil Rolph. I mean, but

8 the other statement says the Secretary appoints members

9 to this working group. So can this working group

10 appoint more members? That's a bit of a circle there.

11 MR. EISNER: I think we're talking about a

12 direct link in that paragraph.

13 MS. BARHYDT: He says "additional interests,"

14 so if it were somebody replacing somebody else, it

15 wouldn't be an additional interest, it would be an

16 alternate for the working group, so it seems to me that

17 D already covers that.

18 MR. EISNER: Any objections?

19 MS. BARHYDT: So E would still be deleted?

20 MR. EISNER: Yes.

21 MR. STANONIK: I'm not sure that I would

22 agree with that characterization because I'm not
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1 certain yet that all interests are covered today. I'm

2 sure that the secretary or ASRAC made every effort to

3 cover all interest groups, but I'm not certain that

4 that actually occurred, so it would seem to make sense

5 that if there was someone that was a party to an

6 interest group dropped out, that that might give an

7 opportunity for an unrepresented or under represented

8 group to join the committee.

9 MR. EISNER: Any thoughts under FACA?

10 MR. MYERS: So there are always going to be

11 people, you know, interests that are not technically

12 represented at the table but they're -- your job as

13 representatives of interests, not your individual

14 company, is to represent all of those interests. If

15 you looked at the convening report, I believe that

16 report has the wedge of interests diagram, and it shows

17 how there are a variety of sort of groups and

18 individuals behind leading down to the person at the

19 table who is actually the negotiator for that interest,

20 even though they may -- so they're representing other

21 people, not everybody at the table, so it's not going

22 to be that every interest is represented personally.
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1 MR. SACHS: I understand that, but I believe

2 that report also missed a major interest group with

3 numerous manufacturers with tremendous impact on those

4 interest groups that are not adequately represented

5 here, so it was not covered in that report, so

6 therefore it's not covered in this committee.

7 MR. HON: What is the group?

8 MR. HATZIKAZAKIS: Could you share it with

9 us?

10 MR. MYERS: Certainly. I think those

11 manufacturers that make custom equipment designed to

12 order, design-built type equipment is under

13 represented here, particularly when those are either

14 not members of one of the major trade organizations

15 here or if they're not a ready participant in the

16 programs that those trade organizations have for

17 performance reporting so, particularly those that make

18 large custom equipment.

19 MR. SACHS: Harvey Sachs. I'd like to see E

20 left in and I'm going to give a specific example that

21 we've recently come through a regulatory preceding

22 which long ago after it closed a group of utilities
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1 decided whoops we have a real interest in this. They

2 are literally an additional organizational interest,

3 and if we drop E, we really have no vehicle if such a

4 thing as Frank is suggesting also were to occur; they

5 would not be able to gain a seat at the table, but what

6 we have -- appreciate that, Ashley, but in point of

7 fact, we've seen in the particular what I'm

8 referencing, that utilities don't speak with one voice,

9 that they have a number of different organizational

10 voices with quite different interests.

11 MS. ARMSTRONG: That's fair. I just think --

12 MR. BAUMAN: This is Jeff Bauman for National

13 Refrigeration. This also doesn't preclude anybody of

14 groups that may not be represented. I mean, look

15 around the table, submitting their comments or getting

16 their comments or getting their points across to the

17 group here and expecting and hoping the people of this

18 group would then bring those forward and discuss those.

19 I think the point that we're already at our maximum for

20 the barking group, you know, chances of somebody

21 dropping off and then somebody completely different

22 from another interest coming into replace that, I
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1 wouldn't expect that, so I think the point that that,

2 you know, would more roll into D if someone was to drop

3 out rather than into E is valid and I also think,

4 again, I don't think that precludes other groups from

5 presenting their interests.

6 MR. EISNER: Again, keep in mind the fact

7 that if DOE appointed someone to represent interests

8 that feel they're not being affectively represented

9 here, they're not being heard in caucus or whatever,

10 changes can be made to representation at the table.

11 You represent more than your organization or your

12 company. You represent an interest. If there's

13 confusion, that can be addressed separately, but if

14 people are not comfortable with taking D out, then

15 let's talk about how it can be worded so it can be

16 acceptable to people. Does anybody still believe that

17 we should leave E in? Okay. We're not asking you to

18 do that yet.

19 Charles, Charlie.

20 MR. HON: We have another topic coming a

21 little bit further down on this page, which is

22 subgroups, working subgroups. In those special
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1 interests may be involved in those working subgroups on

2 that actually technically, and if we chose to define it

3 that way.

4 MR. EISNER: Let me ask if anybody objects to

5 E being in the way it's written, where especially to

6 make it more comfortable only with the concurrence of

7 the committee, only if it was with the consensus of

8 this working group, would anybody object to leaving it

9 in? Everybody would have to agree to add this new

10 party.

11 MS. BARHYDT: My only concern is if we are

12 barred by statute from adding people, I don't want to

13 create an appearance that we can.

14 MR. EISNER: What statute would bar you from

15 adding people?

16 MS. BARHYDT: Dan said that we were limited

17 to

18 25.

19 MR. EISNER: That's under the Federal

20 Advisory Committee Act. That's not binding; I don't

21 believe that's a binding requirement. You believe you

22 need 26, you can have 26, I believe. But again, it
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1 requires the consensus of the committee.

2 MS. BARHYDT: As long as that's okay, I have

3 no problem with it.

4 MR. EISNER: I understand the Negotiated

5 Rulemaking Act is a framework; it allows you to try

6 other things, but we can talk about that. If everybody

7 is comfortable with us leaving this in, changing

8 concurrence to consensus to make it a little clearer

9 that everybody at the table has to agree, than we can

10 leave it in. Does anybody object to that? Okay, and

11 we can again leave that open for further discussions

12 among the lawyers as to what they're comfortable with

13 at DOE. That gets us to F, attendance and participation

14 at meetings. Any thoughts on this one, whether any

15 changes are necessary?

16 Okay, there doesn't seem to be any objection

17 there. There's a 1 on attendance. What about 2 on

18 participation? Note here, because we haven't been

19 enforcing it, this only allows committee members to

20 speak on issues but the committee I think later on in

21 this document can approve others speaking at particular

22 times. We can handle that any way you want. If you're
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1 comfortable with letting the audience participates

2 whenever they raise their hand, we can do it that way,

3 or we can limit it to particular times during the

4 meeting.

5 MR. BALLO: Tim Ballo. Just to back up very

6 quickly, I don't think the language in E has been

7 changed yet in the official version from concurrence to

8 consensus.

9 MR. EISNER: Okay. Yes.

10 MR. MENSER: Mark Menser from Intertect. Is

11 there some assurance in the rules that observers will

12 continue to be invited and meetings will be published

13 so that they can attend?

14 MR. EISNER: You want to speak to that about

15 what the procedures are? I'm looking at the FACA

16 people.

17 MR. STANONIK: Yes, these meetings are

18 public. Yes, Jonathan Stanonik, DOE. The meetings will

19 be published and are open to the public.

20 MR. EISNER: John, that applies to this H.

21 What about subgroups that this group might create,

22 John?
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1 MR. CYMBALSKY: The subgroups -- what we did

2 in Transformers, this working group splintered off into

3 smaller working groups to do their work onsite and so

4 while it was still public, people kind of caucused into

5 little working groups, but the details of what they

6 talked about were brought up then to the larger working

7 group, and that part of it was made public, but when

8 they met as little working groups --

9 MR. EISNER: Subgroups.

10 MR. STANONIK: It was not at a public forum.

11 MR. EISNER: And that is, as I understand,

12 they are not making any recommendations, John?

13 MR. CYMBALSKY: Correct; it still all has to

14 go through the subcommittee, or the working group. I'm

15 sorry for the words here.

16 MR. EISNER: Does that address your question?

17 MR. MENSER: Yes, thank you.

18 MR. STARR: Louis Starr on the webinar as a

19 committee member recommended changing concurrence to

20 agreement in E. If we can go back to E. You want to

21 talk about that?

22 MR. THARP: Rusty Tharp. I think we're fine
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1 with consensus.

2 MR. EISNER: Sounds like everybody is

3 comfortable with consensus. If we could ask Louis why

4 he wanted it to be changed to agreement, because

5 consensus may require a unanimous vote. We'll get to

6 that later on. Let's assume for now it will not be

7 changed. Okay, so that brings us to 2 again,

8 participation of people who are essentially not

9 committee members. It talks about the committee

10 members can call on another individual to elaborate

11 things like that, but how do you want to handle

12 members, or the non-members of this committee, this

13 subgroup? Excuse me, this working group?

14 MR. MOLVIE: Pete Molvie. My opinion is that

15 if these are truly public, open to the public, the

16 public should be able to make comments when they're

17 here if they go through the trouble of being in

18 attendance.

19 MR. EISNER: That's a good point. The

20 question is, could they talk at any time that they

21 want? Are we going to set aside a specific time for

22 them to talk or some third alternative?
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1 MR. MOLVIE: It seems reasonable that the

2 facilitator could recognize anybody in the audience who

3 has his hand up.

4 MR. EISNER: Okay. Other thoughts?

5 MR. SACHS: There are among the observers

6 today a number of people who have already made

7 significant contributions, and unless we get into a

8 real serious time crunch, I would recommend just to

9 leading item C, and letting the flow of the discussion

10 dictate how we recognize people. I'm very much

11 supporting B.

12 MR. EISNER: Okay, are you suggesting

13 eliminating C. Everybody agree with that?

14 Charlie.

15 MR. HON: Charlie Hon. I think we can do

16 that very well, because this is still a vibrant

17 document. If it comes to where we're being dragged

18 down by someone outside the committee, I think it

19 becomes limited at that point, but until we get it

20 dragged down, I don't ever want to limit free speech

21 here.

22 MR. EISNER: And there is an understanding,
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1 and you can put it in the document, you want that I

2 have to recognize the person, so that makes it a little

3 more organized.

4 MR. DOPPEL: Paul Doppel, Mitsubishi. If we

5 take out the "if time permits" and leave C in there, I

6 think that would be okay, too.

7 MR. EISNER: Everybody fine with that change?

8 MR. HATZIKAZAKIS: Fine.

9 MR. EISNER: You got all that? Take out "if

10 time permits." All right, constituent's interests in

11 G. This is something we've talked about a few times.

12 Anybody have a problem with leaving that in as written?

13 Okay. We appear to have consensus on 2, so

14 we'll go on to 3. Decision making. This is the

15 important paragraph. Paragraph A on consensus. The

16 observations, questions?

17 MR. THARP: Rusty Tharp with Goodman. I

18 suggest that we take something along the lines of what

19 the ASRAC committee generated for consensus as at least

20 as a starting point for what we deal with.

21 MR. EISNER: I'm not sure if I understand

22 what you mean by the ASRAC committee. You mean this
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1 language here?

2 MR. CYMBALSKY: It's different from what the

3 ASRAC committee came up with. It's something along the

4 lines of they're looking for unanimous vote, however

5 you'd accept, what is it, 75 percent if we couldn't

6 achieve unanimous decision.

7 MR. EISNER: Comments on that.

8 MR. CYMBALSKY: This John Cymbalsky, DOE. I

9 just want to point out that this -- the consensus

10 language that's up there is what the Transformers

11 working group worked under. The full ASRAC committee,

12 as Rusty pointed out, has a different definition of

13 consensus, and it's not this one, but this was thrown

14 up there as one that people seemed to like in this

15 working group situation where I think it's a little bit

16 different than the full ASRAC committee, and how

17 they're going to do their business so, this is the

18 strawman to which to work from. And as Neil said, this

19 is the most important part here so if you don't like

20 this, let's tear it up and redefine it.

21 MR. EISNER: If you want, maybe we can cut

22 and paste the consensus language from the full ASRAC
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1 and come back to that after you've got it pasted in

2 here. We can look at both sets of language.

3 MS. MEYERS: This is Karen with Rheem, and I

4 really think it's important since we're working on a

5 specific issue, even though they're large in scope,

6 that I don't want one person to have the ability to

7 derail what the other 24 want to do, but I do think

8 it's important that we have more than 75 percent, so I

9 don't know what that number is. But you know, ASRAC, I

10 think their issues are a little bit broader, but since

11 you're a working group and you're working on something

12 very important, I would just hope that we would go with

13 something a little bit larger than 75 percent, but then

14 again, you know, I don't think one person need to be

15 able to, you know, to derail what the 24 other people

16 have agreed to, so that's just some input. I don't

17 know how the others feel.

18 MR. EISNER: And I would note again, you have

19 the ability to modify language to or put in a

20 recommendation to the Department of Energy at the end

21 if it's not consensus. For example, if we have ten

22 paragraphs in the recommendation and eight of them have
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1 full consensus of everybody, and two had consensus from

2 80 percent, you could note that in the recommendation.

3 "We only had 80 percent consensus on this

4 recommendation." You could specifically note who

5 didn't agree if you wanted to, and you got the

6 flexibility to develop the kind of report you want.

7 If you think there's an advantage to giving

8 the Secretary a recommendation, even though it doesn't

9 have 100 percent consensus, then I think it's worth

10 thinking about whether you want something less than

11 that, but remember, some people are afraid to negotiate

12 if they think they can't stop something they think is

13 going to hurt them. There's that incentive to get them

14 to sit there and think, "All right, what can I give up

15 that won't hurt me that much that will help them get

16 what they want," whereas if you always have the

17 opportunity to say "I'm just going to tell them I vote

18 on this -- I vote no on this," that may hurt the

19 overall document so you have got to balance those types

20 of things when you're thinking about what it is you

21 want to come out of this group at the end.

22 MR. BALLO: Tim Ballo with Earthjustice.
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1 One of the reasons that I like the idea of

2 maintaining unanimity is the standard for this working

3 group is that as a sort of as a practical matter, it is

4 the case that anybody who's really unhappy with the

5 outcome here, that viewpoint could be used to overturn

6 the work of the working group through litigation. I

7 mean, anybody who's been involved in getting burned by

8 the furnace standards knows that there was a set of

9 standards for furnaces that were negotiated; everybody

10 really was happy with the outcome, except for one

11 group, and as a result, we're back to DOE again likely

12 for another round of looking at furnaces, so I totally

13 hear the idea that we wouldn't want to let one member

14 of the working group stop us from reaching a

15 recommendation, but I sort of think that if we can't

16 get unanimity in this working group, that there's no

17 real guarantee that whatever we recommend will actually

18 be implemented any way.

19 MR. EISNER: Point to remember here: this

20 just to elaborate on what was just said, is that later

21 on in the document you have part of the package that,

22 the first group used was things like "we will not sue,
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1 we will not challenge" kind of language. When you lose

2 100 percent consensus, you may lose some of that also,

3 so again, think about all the effects this has on the

4 ability to get a document that everybody would support.

5 If there's a door open, think about the fact that you

6 can spend a lot of hours where you end up with nothing

7 to report to the Secretary when you may have tremendous

8 amount of support for tremendous amount for

9 tremendously improved document.

10 MR. BALLO: Tim Ballo. One other point on

11 that is that, at least for it was the case for

12 Transformers that all the proceedings, or at least

13 almost all the proceedings, made their way into the

14 record for the rulemaking and were evaluated by the

15 Department, so I think as a practical matter, if 24

16 people think something's a good idea, the Department is

17 going to look at that and, you know, obviously they're

18 going to take the concerns of the one party that's not

19 in agreement into account, but I think this will -- the

20 work of the working group will influence the outcome of

21 the rulemaking. It's just a question of whether that

22 actually goes in directly into a proposed rule.
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1 MR. EISNER: Okay.

2 Yes?

3 MR. STANONIK: Frank Stanonik with AHRI. I'm

4 not sure if you intended, but I think I just heard a

5 good argument that it shouldn't be unanimity because I

6 understand the process, you're a working group that's

7 going to make a recommendation to ASRAC, which will

8 then answer consider that, which will then get to DOE,

9 and then if I understand this correctly, at some point

10 DOE would then still publish this as a rule, or a rule

11 for review prior; right? So if you're relying on

12 unanimity, potentially one percent could stop the

13 process, and there is no recommendation. There is no

14 recommendation from the working group at all. It might

15 be 24 people that thought it was a great idea, but

16 there's no recommendation at all, so there's no

17 recommendation from the working group to ASRAC. ASRAC

18 is back on its own and it seems to me there's a huge

19 risk that the process becomes an exercise in futility.

20 If, on the other hand, you have some sub, you know,

21 some level of consensus that's not unanimity, the

22 parties that weren't necessarily in agreement will have
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1 at least one additional bite at the apple at the review

2 process, if it gets to the point where DOE puts it into

3 a Federal Register Notice.

4 MR. EISNER: Any reaction?

5 MS. BARHYDT: John, correct me if I'm wrong,

6 but I believe that in the Distribution Transformers

7 Negotiated Rulemaking, there were certainly areas where

8 they couldn't achieve the unanimity, but the Department

9 still knew, because the whole -- all of the

10 discussions, the whole process is public, all of that

11 was still in the record for the Department to consider

12 for the proposed rule that went forward, so even though

13 the group didn't come to consensus and it wasn't

14 unanimous on a certain way to go forward, it's not all

15 for naught. I mean, the Department still has a lot

16 more information going forward than before the process.

17 MR. CYMBALSKY: John Cymbalsky, DOE. That's

18 correct. So I think everyone is making good points and

19 I think, you know, at the end of the day the whole, if

20 you read that paragraph, someone has to actually vote

21 no. So you can abstain. That might show your

22 displeasure with the outcome without actually saying no
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1 so, just keep that in mind. I mean, that was an

2 important point of what we did in the Transformers.

3 MS. HOOTMAN: But if you abstain, you don't

4 then, when we go on to -- this is Jill Hootman at

5 Trane, sorry. If you abstain, if you go on to then

6 section 4 in agreement, than you're not necessarily

7 allowed to come back and have any kind of litigation

8 ability?

9 MR. CYMBALSKY: That's correct. Again, if

10 the numbers are -- I think it's been beaten to death,

11 but I'll beat it one more time. So, if the numbers end

12 up being 24 to 1 as Tim Ballo mentioned, you know,

13 that's a pretty strong in favor of in this makeup of

14 this group, and so when this goes into a proposal,

15 obviously everything that was talked about and all the

16 interests that were mentioned here in these proceedings

17 will be in the proposal by the Department, and so at

18 the end of the day, we're going to have a proposal one

19 way or another, so...

20 MR. EISNER: Let me read a comment that we

21 got from Marshall Hunt, a committee member who is on

22 the webinar. He said 100 percent is not necessary.
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1 Persons not involved in the process can also sue or

2 block the negotiated agreement, thus set the level at

3 75 percent in alignment with ASRAC. Yes?

4 MR. MENSER: If I understood what you just

5 said, I concur with that. The downside of not putting

6 some number like 75 percent in here is that one person

7 could hold it up, and then the result was this

8 negotiating group could not come to an agreement, and

9 that message gets out. I really think that this should

10 be every effort made towards having consensus 100

11 percent agreement, but in the end, all of those

12 disagreements will also go forward and there should be

13 a number that at the end of the day. This group is

14 allowed to put a report out if they have 75 percent

15 agreement, and Karen, if it's not 75, if it's 80,

16 that's not important. I picked 75 because that's the

17 number that ASRAC has, but I personally think that

18 there should be some number that would enable this

19 august body to put out a report and not say that

20 negotiations had failed, and then somebody else has to

21 do something.

22 MS. BARHYDT: Go ahead, Harvey.
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1 MR. SACHS: What we're doing now is arguing

2 about the price, and that gets tied directly to what's

3 the size of the smallest recognized interest group, and

4 for example, loosely speaking, we could talk about the

5 commercial refrigeration manufacturers, commercial HVAC

6 manufacturers, and when we get down to discussing the

7 price of ham and eggs, as a pig, I think about the size

8 of my group, and at most that's four, so anything that

9 allows four to be overridden, which should be 80

10 percent, or actually 83 percent, would be of concern to

11 me. So, if we can't -- if we must have a number, for

12 me, as an environmental advocate, it's 85 percent's the

13 minimum, because that says you can't veto the unlikely

14 possibility that Marshall Hunt and Harvey Sachs agree.

15 MR. EISNER: Okay.

16 John Mandyck on the phone. You want to talk?

17 MR. MANDYCK: Yeah, thank you. I just wanted

18 a weigh in. I think unanimity is not realistic nor do

19 I think it's fair, so I think some number whether it's

20 75, 80, 85 percent, something has to be thought of here

21 so that there's a chance that some report can come out.

22 Now, there is the requirement that has been mentioned
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1 that the report that will go to the full ASRAC

2 committee will represent full views and minority views,

3 so all the views will be transmitted, but I don't think

4 it's fair that we allow one body to block a full report

5 done by the good work of all the people on this working

6 group.

7 MR. EISNER: Other comments, thoughts?

8 MS. BARHYDT: Maybe I'm coming into this too

9 idealistic after listening to all of this, but my hope

10 is that we can actually achieve an agreement that while

11 everybody doesn't like every last little bit of it,

12 that as a whole, everyone can support, and so I'm

13 coming from the perspective of I really hope that we

14 can, and setting a lower bar going into it just worries

15 me a little bit that, is everyone really committed to

16 making the hard decisions and making the decisions that

17 yeah, I don't really like this that much but I can live

18 with that if I get this other thing, and the trade

19 offs, and just as a whole picture, can we really all

20 sit down and come to an agreement that there is a

21 solution out there that everybody can live with?

22 MR. BALLO: Tim Ballo. I agree with that. I
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1 think we're maybe getting a little bit ahead of

2 ourselves in trying to rule out unanimity before we

3 really get a sense of just how close together we are,

4 because I think we may be coming into this process with

5 some assumptions about what other groups might be

6 asking for, which I think may be -- are actually a

7 little bit sort of assuming the worst about some of our

8 fellow committee members or working group members, so I

9 do think that a consensus is possible. We could always

10 at least try moving forward with consensus for now, and

11 as someone who's pushing for consensus, I'd be happy to

12 reopen the discussion at some point in the future if we

13 want to at that point back away from consensus.

14 MR. THARP: This is Rusty Tharp with Goodman.

15 I guess one of the reasons I made this suggestion to

16 follow ASRAC to begin with is because we are in a time

17 crunch, and the one reason I would like to see

18 something besides unanimity, I'll just say "unanimous

19 decision," is because I think with the limited amount

20 of time that we have that would be probably the best

21 way in order to get there in a restricted amount of

22 time. If we had a year or so to do a lot of this work,
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1 I would be more in tune to agree with the suggestion

2 for a unanimous decision. However, having four months

3 to accomplish everything, I think that we should

4 consider something less than unanimous, and I would say

5 even 90 percent, 95 percent, something less where would

6 give us an opportunity to move forward a little bit

7 faster.

8 MR. EISNER: Let me ask you to focus again on

9 that first sentence which we kept very simple in the

10 document, your goal. Your goal is to get this document

11 out. Some of you were saying you want to get it out

12 quickly, you have to get it out quickly, not that you

13 necessarily want to, in order to meet time constraints,

14 therefore you should accept something less than

15 unanimity. But if you accept something less than

16 unanimity, will you achieve your goal? Will you have a

17 great document that the Secretary of Energy will then

18 take and say, "This is a good NPRM, I will publish it

19 for comment," or will he see they didn't have unanimity

20 on four of the ten key points, or they only got 85

21 percent of the people, but the 15 percent are people

22 who'll probably sue us, we'll be tied up in court.
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1 You don't know those subtle things. Will it

2 still get you to your goal if you accept something less

3 than unanimity? You're almost guaranteed that the

4 Secretary can't say no if everyone, including his

5 representative, says yes. But if you don't think

6 you're going to get to something that you can even

7 present to the Secretary, then you have to consider

8 other options than unanimity. Go ahead.

9 MS. MEYERS: This Karen with Rheem. I think

10 everyone is committed to trying to get unanimity on

11 this issue, but you know, I don't think that needs to

12 be how we define consensus. I think everyone's

13 thinking that if we don't define consensus as

14 unanimity, then we're not going to try to get

15 unanimity, and maybe I'm just speaking, you know for

16 myself, but that's still I think the goal of the group.

17 I mean, that's what we put as our goal, is to reach

18 consensus, so then maybe we should change the goal to

19 get to be -- to try and achieve 100 percent consensus,

20 but maybe I'm getting my words mixed up here because

21 I'm kind of talking over myself, but I think, you know,

22 I just I think it's unrealistic to, and I think it's a
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1 little bit unfair in the short time that we have to not

2 be able to try, and I don't want the perfect to get in

3 the way of the good, and I'm afraid that if we define

4 consensus as 100 percent, that could happen.

5 MR. AMRANE: Karim Amrane, and I agree with

6 Karen. I don't believe even in the previous negotiated

7 rulemaking the DOE was able to reach unanimity within

8 the Transformer group, so I think we need to put some

9 sort of a percentage, whether it's 75 percent, whether

10 it's 80 percent, but I believe that's the way to move

11 forward, otherwise I'm afraid that we're not going to

12 be able to provide for recommendation to the ASRAC and

13 eventually to DOE. So -- and again, any rulemaking

14 that DOE has done that I'm aware of, never, never was

15 done with full consensus, so I think we need to put

16 some sort of percentage.

17 MR. EISNER: Okay, let me read two comments

18 we got from people online. From Bryce Bowley, "I think

19 75 percent is too low. I understand that we may not

20 get all members to agree; however, I think a number

21 closer to 90 percent would be more reasonable. We want

22 broad agreement, not majority." And a comment from
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1 Bruce Helft, "Does 'present'" in quotes "mean

2 physically present" -- oh, present -- "does present

3 mean physically present? Can a working group member

4 vote by proxy?"

5 Again, that's for the group to decide on how

6 they can vote. We'll have to go back to that in a few

7 seconds. So let's focus on how we can write this so we

8 can get agreement around the table on how to proceed

9 because I'm hearing objections to anything less than

10 unanimity. I'm hearing objections to unanimity. We

11 can't really proceed if we can't get agreement on that

12 point because if we can't agree on how we're going to

13 vote, there's no way to go ahead.

14 So is there language that we can write that

15 would satisfy everybody around the table? Laura? Oh -

16 -

17 MR. BAUMAN: Thanks, Laura. This is Jeff

18 Bauman from National Refrigeration. I guess in

19 combining that and thinking the same way Neil is, you

20 know, could we raise a statement that the working group

21 can be defined consensus or the goal of consensus for

22 the working group would be to achieve 100 percent. In
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1 the event that -- and I don't know if it's fair, but to

2 say the facilitator finds that the group can achieve

3 that, that an 85 percent or somewhere in the number

4 would be sufficient if they find they cannot receive --

5 cannot achieve a unanimous.

6 MR. EISNER: And as I understand what you're

7 suggesting, Jeff -- maybe I'm thinking too far ahead --

8 if we don't get 100 percent, then we lose other parts

9 of the agreement such as "I won't sue, I won't object"

10 kind of language.

11 So I think what you're suggesting is we write

12 the agreement that we will get unanimous consensus. If

13 I find that we can't get unanimous consensus, then the

14 rules of the game change and we get the best we can and

15 submit that report to the Secretary. But the rules of

16 the game would have to change, I think, for things like

17 "I will not sue."

18 Could people live with that as a consensus?

19 And do we want to decide -- do we need to decide

20 percentage or do I just make a decision that we're not

21 making progress? And we can always go back to an issue

22 after we get to the end of all the issues and decide
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1 you know what, I now got -- I now have what I want here

2 so therefore I can go back and withdraw my objection to

3 an earlier decision and say, "I agree with that now."

4 But if we don't get consensus but we want to

5 submit a report to the Secretary, we can go ahead and

6 do that. We just realize the rules of the game may

7 change.

8 MR. ROLPH: This is Neil Rolph. I would

9 support this idea that we can't get 100 percent

10 consensus, but we desire it. And we have to set a

11 level. I mean, I don't like the idea of just leaving

12 it open to whenever a topic comes up we can't get

13 consensus on that then we figure out what that is.

14 I think we need to do it right now and settle

15 that law and I agree with the comment Harvey made about

16 there's so many different interest groups and the

17 percentages of those I think has to be some level --

18 maybe it's above 85 percent or 90. I would definitely

19 support that.

20 MR. EISNER: I'm sorry, but I'm not sure if I

21 understood you. You would support --

22 MR. ROLPH: I support that we desire 100
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1 percent consensus, but we have to have a level that is

2 somewhat below that to move forward and maybe that's 85

3 or 90 level that's a fixed number.

4 MR. EISNER: But are you agreeing with the

5 theory that we say our goal is to achieve consensus,

6 here are the rules of the road for achieving consensus.

7 If we do not achieve consensus, we can decide to submit

8 a report showing what support we did have, but the rest

9 of the rules of the game change?

10 MR. ROLPH: Not exactly. I'm saying

11 consensus is whatever level that we're establishing

12 here.

13 MR. EISNER: Okay.

14 MR. ROLPH: The statement is we desire 100

15 percent, but the vote will be taken based on a level

16 that we have to achieve.

17 MR. EISNER: And are there objections to

18 that? Because I understand there are, so we won't have

19 consensus on that. Around the table, would you agree

20 to setting a level? Would everybody agree to setting a

21 level of some percentage that is the consensus

22 necessary? Everybody would agree? Okay.
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1 So then we have to start talking about what

2 the percentage ought to be. John Mandyck submitted a

3 note that said, "We should decide this now. We can't

4 revisit later once negotiations actually start."

5 MR. MYERS: This is Karen with Rheem. To

6 start the conversation, I'll say 85 percent.

7 MR. EISNER: Yes?

8 MR. THARP: This is Rusty with Goodman. Tim

9 wanted to say something, I could tell.

10 MR. BALLO: I'm okay with moving away from

11 consensus as long as we also recognize we're moving

12 away from the "I will not sue if I'm the one person

13 who's holding things up."

14 So I mean, if that's the path we want to go

15 down, as long as we change that language in the

16 agreement also. And one other thing on the

17 Transformers rulemaking, we did actually reach

18 consensus on one of the three types of Transformers

19 that were under discussion for that.

20 MR. EISNER: Yes.

21 MR. SHEBIK: Ron Shebik, Hussmann. I agree

22 with the 85 percent, but the one thing I'm a little
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1 confused on is the language "I will not sue." I mean,

2 is that a loose term that we're throwing out there or

3 there actually language because again, we hear, we

4 speak -- you know, we can't guarantee that our

5 competitors or other similar manufacturers do outside

6 of this group. So we have no --

7 MR. EISNER: To the extent you are speaking

8 for affected interests, you're representing not just

9 your company but affected interests, they are

10 essentially agreeing. It's not something where they've

11 signed a document saying they won't, but it's kind of

12 part of the -- I think it's considered part of the good

13 faith concept. We all sat down, we all agreed, we were

14 all -- everybody can't be at the table. We're

15 representing these interests and on behalf of those

16 interests, we agree we will not sue. We agree we will

17 not challenge, whatever it is you want to put in the

18 document.

19 MR. SHEBIK: Okay, thank you.

20 MR. EISNER: Yes, Harvey?

21 MR. SACHS: Harvey Sachs, just a little bit

22 of clarification: full consensus endorsement implies 25
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1 people or 100 percent, 24 is 96, 23 is 92, so if we

2 want a threshold that says you have to have four people

3 objecting to derail, that says that I was wrong, it

4 can't be 85 percent. It has to be 90 percent because

5 four people objecting would mean 88 percent agreeing.

6 MR. BAUMAN: Twenty-one --

7 MR. SACHS: Twenty-two --

8 MR. BAUMAN: You're off by one.

9 MR. SACHS: -- I'm still off. Let me just

10 rewind the tape and go back into my cave.

11 We want -- 22 people, yes, would be 88

12 percent yes. Since it's four percent per person with

13 25 people. That much, I think I'm right on. Yes.

14 MR. BALLO: Tim Ballo. It might be easier

15 because we're also putting in the provision to allow

16 for additional members to come in. It might be easier

17 just to say that no more than two negative votes,

18 rather than putting in a percentage.

19 MR. SACHS: Yes.

20 MR. BAUMAN: This is Jeff Bauman from NR.

21 But then you get abstentions versus negative votes. I

22 think you still have to do it as a percentage of --
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1 because an abstention would not be counted in the

2 percentage at all.

3 MR. EISNER: But again, you can force people

4 to vote yes or no if you want. That's your decision as

5 a group. Other thoughts? Laura?

6 MS. BARHYDT: So is the proposal 85 or 88

7 percent, but the people who might vote no agree not --

8 still agree not to sue? Or is it that we take

9 something under 100 percent and the "I won't take any

10 adverse action" still stand? Are people still agreeing

11 to that even if they may not agree to the final

12 decision -- recommendation of the body?

13 MR. EISNER: And to be a little bit more

14 specific, if we have 10 points -- again, just to make

15 up a number -- and you non-concur on number eight is

16 that the only one you can sue over, that issue? Could

17 you sue over something you voted yes for?

18 MS. BARHYDT: That's what I wanted

19 clarification, yeah.

20 MR. EISNER: Yeah. Other thoughts? You want

21 to allow abstentions even with a percentage on it? So

22 do you want to say 90 percent of those voting? Yes?
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1 MS. HOOTMAN: I think we still need to --

2 Jill Hootman from Trane. I think we still need

3 abstentions because there is obvious groups here and

4 you know, whereas my company might not have any

5 interest in something in water heating, I would abstain

6 from water heating. You know? I mean, it's not -- I

7 can be a party to and agree to, but I don't want to

8 stick them with something that, you know, they can't

9 live with.

10 So I mean, I think we have to leave

11 abstention for things that we are not necessarily a

12 party or an interested party to.

13 MR. EISNER: So any thoughts on the

14 percentage, with that in mind? Or again, that makes it

15 a little harder to say can't have more than two

16 negative votes, you can't have -- remember when you say

17 two percentage -- a certain percentage, abstentions are

18 going to affect how many negative votes can stop

19 something.

20 At what percentage do we want to go with?

21 MR. BALLO: Tim Ballo. I still don't really

22 see the distinction or why we need to go with a
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1 percentage rather than just having no more than two

2 people object, you know? If some people abstain, well,

3 that's their business. But the purpose should be to

4 reach consensus or as close as we can to, among the

5 people with an interest in that issue, whether there's

6 two people that disagree out of 25 or two people out

7 of, you know, 15, that are only interested in this

8 particular issue, then it's still just, you know, two.

9 MR. DOPPEL: Paul Doppel, Mitsubishi. I

10 think if we can get -- go with a number of no more than

11 -- it should be no more than three rather than two

12 should object.

13 MR. EISNER: Let me ask you why you want two

14 and why you want three? You start.

15 MR. BALLO: Well, two is one-half of me,

16 Harvey, Marshall, and Louis. I'll be honest.

17 MR. EISNER: And three?

18 MR. DOPPEL: Just looking at the percentages,

19 three is essentially like a 90 percent level if the

20 whole group is participating -- 88.

21 MR. EISNER: Now again, I don't know all the

22 representation around the table and how the various
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1 interests will differ depending on the issue that's on

2 the -- how the various affected interests will vary

3 depending on the issue on the table. But when you pick

4 a number, are you picking a number that's going to

5 block one interest from ever being able to stop

6 anything? And is that going to help you achieve

7 consensus, but give you a document that is not really

8 an effective document because one interest was

9 constantly blocked out? I don't know the numbers and I

10 don't know how it works out. You would know that

11 better than I.

12 And I think that's partly where Tim was

13 coming from, but -- from the different -- a different

14 side of it. Yes?

15 MR. STANONIK: Frank Stanonik with AHI, to

16 that very point, if you accept Harvey's premise and

17 Tim's that there are four representations of let's call

18 the conservation advocates with three, requiring three

19 no votes, that is clearly a significant -- let's call

20 it a bloc, if you will, a significant indication that

21 bloc doesn't -- possibly doesn't agree.

22 With two, it's an indication that that bloc
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1 is uncertain. So on the one hand, you would have an

2 interest being able to disagree with whatever

3 recommendation if in fact that interest was majority

4 opposed to it. On the other hand, if it's only two,

5 you have a possibility the interest could vote against

6 something even though the interest is uncertain of

7 their position collectively.

8 MR. BALLO: Tim Ballo. I guess I view the

9 deviation from consensus a little differently in that I

10 thought we were getting away from consensus to protect

11 against the possibility that there's -- one of us is a

12 nut case, and I think just by going to two, you know, I

13 may be crazy, but I'd have to convince Harvey also to

14 be crazy and I think that two adequately protects the

15 overall goals of the committee to keep it moving

16 forward.

17 MR. EISNER: Let me also raise another

18 question for you to consider. If it's more than one,

19 which is obviously the difference between unanimity and

20 non-unanimity, you don't -- you may not have the

21 support of the agency. Is that something you'd still

22 want to go ahead and make a recommendation on? So
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1 where should the number be set?

2 Yes?

3 MS. HOOTMAN: Jill Hootman from Trane. Yes,

4 I think we would still want to go forward with the

5 recommendation even if the Department was not behind it

6 and be part of the public record.

7 MR. EISNER: I'm sorry, I got handed a note

8 just as I was --

9 MS. HOOTMAN: I said, yes, I think we would

10 still want to go ahead with the recommendation even if

11 the Department was the dissenting vote than be part of

12 the public record.

13 MR. EISNER: Okay. Numbers?

14 MR. BAUMAN: This is Jeff Bauman again from

15 National -- I guess two quick things that occurred to

16 me is that Tim, when you were talking about, you know,

17 again part of our goal in reaching consensus is also

18 talking to each other, not just putting up fences

19 across from -- oh, that's that group, that's this

20 group.

21 I would hope, Tim, that if you could convince

22 Harvey to be crazy, you can convince one of us to be
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1 crazy too if it's something that's valid that we can --

2 it's not just a certain group, but in the discussions,

3 you know, we're going to have open minds on both sides

4 but to be able to build that consensus, not just have a

5 well, that's where they're coming from so that's, you

6 know, just trying to think along those lines.

7 The other thing, too, I think a little bit

8 about a percentage if you talk about -- and somebody

9 mentioned if you have the item that for some reason a

10 bunch of people didn't vote on, if it's only 15 people,

11 if you say two people have to vote out of that, you

12 know, not using a percentage, then you're actually much

13 higher as far as a percentage that you're asking for.

14 So it seems to me, you know, just sitting here thinking

15 about the percentages may have some advantages to going

16 that way.

17 MR. EISNER: John Mandyck says that at full

18 ASRAC, abstentions do not count as a vote and are aside

19 from the 75 percent consensus threshold. Yes?

20 MR. STEPHENS: Phillip Stephens, HTP. I did

21 the math. Just to let everybody know, whether we have

22 90 percent or two negative votes, it works out as long
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1 as you have fewer than six abstentions. So it comes

2 out to be the same whether we go percentage or the

3 number of negative votes for two. It's a moot point at

4 that point. So I would recommend the 90 percent level.

5 Because that gives us up to five abstentions and we can

6 still have the votes.

7 MR. EISNER: Others on 90 percent, any

8 specific thoughts?

9 MR. SACHS: Neil, I'm hearing consensus

10 that's close enough; it's got an error margin around

11 it. We ought to be able to go ahead and if something

12 actually gets hung up, as Jeff says, it's cause to

13 revisit and I think I'd be comfortable with that, not

14 worrying too much about whether it's two of those

15 voting or 90 percent of the whole committee or -- if

16 you get close to that, it's a sign that you really have

17 to do some rethinking about that issue.

18 MR. EISNER: So I'm sorry, but are you saying

19 90 percent would be okay with you?

20 MR. SACHS: I'm saying that either one of

21 them, I don't see a substantive difference. Both of

22 them are flag posts that we have a problem to continue
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1 working on.

2 MR. EISNER: Others? If I were to call for a

3 vote on 90 percent would everybody be ready?

4 MR. DOPPEL: Paul Doppel, if you could talk

5 your numbers again because I don't think 90 percent is

6 the same as five. Five abstentions.

7 MR. EISNER: Yes?

8 MR. STEPHENS: Phillip Stephens, HTP. So if

9 we have five abstentions, that means we have 20 votes.

10 So two negative votes would give us 90 percent even.

11 MR. EISNER: Okay, so you're saying two?

12 MR. STEPHENS: Yes. Two negative votes with

13 -

14 -

15 MR. EISNER: Okay, with abstentions, okay, I

16 got it.

17 MR. STEPHENS: -- five abstentions still gets

18 us 90 percent. And by the way, three negative votes

19 would give us 85 percent.

20 MR. EISNER: Thoughts on 90 percent? If I

21 were to call for a vote, is everybody ready to vote or

22 they want to discuss more?
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1 MR. SACHS: 90 percent of those voting.

2 MR. EISNER: How do we --

3 MS. ARMSTRONG: This is Ashley. I just had a

4 question: what do you do for people who don't show up,

5 voting members that aren't here?

6 MR. SACHS: There are others --

7 MS. ARMSTRONG: I mean, do they -- are they

8 automatically an abstention? Do they just not count? I

9 mean, this is something we did have to adjust for

10 ASRAC. I don't have an opinion one way or the other,

11 but just --

12 MR. EISNER: It could be 90 percent counting

13 abstentions -- considering abstentions.

14 MR. SACHS: It's lunch hour.

15 MS. ARMSTRONG: Sorry, didn't mean to delay

16 lunch further, sorry Harvey, but -

17 MR. SACHS: She's blushing.

18 MR. EISNER: What -- can I ask what the

19 record has been in terms of people not voting in the

20 prior advisory committee? Is it frequent that you

21 don't have 25?

22 JOHN CYMBALSKY: Transformers, everybody is
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1 always there.

2 John Cymblasky, Dewey, for Transformers,

3 nobody ever missed a vote. And I think this group

4 might even have more interest in this issue and I would

5 expect them not to miss a vote as well.

6 MS. MEYERS: Can we make that one of our

7 rules; if you're on here for a vote, then you count as

8 an abstention? Can we define that?

9 MR. EISNER: I draw everybody's attention to

10 2F; "everybody makes a good faith effort to attend

11 every meeting and voting may be by telephone or other

12 electronic means." Good faith to -- "alternate makes a

13 good faith effort to attend all committee meetings and

14 represent the interest." Let's make that stronger if

15 somebody wants to. But that's what we earlier agreed

16 to.

17 So 90 percent, which would allow two people

18 to stop something as long as there were no more than

19 five abstentions and/or absences from voting.

20 MR. SACHS: More than two people.

21 MR. EISNER: More than two people. Well, it

22 depends on how you word this threshold; 90 percent or
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1 above or less than 90 percent.

2 So if we were to say you had to have 90

3 percent or above support based on the votes of those

4 voting or abstaining, being others being included in

5 the number, determine the 90 percent. Or based on an

6 assumption that there were 25 votes cast, you'd have to

7 have 90 percent of the 25 members to get something to

8 pass. I think I'm wording that --

9 Anybody object to that?

10 MR. THARP: This is Rusty Tharp with Goodman,

11 90 percent of 25 is 22-1/2 so I would suggest that we

12 do a rounding or truncating or something to -- since

13 there's not any half people here.

14 So I would suggest we say 90 percent, rounded

15 down. So for 25 or rounded up -- one way or the other

16 so there's not any arguments later. Round it up so

17 that there's 90 percent rounded up.

18 MR. BAUMAN: If you just say "you must

19 achieve a 90 percent or better," you're right, 22-1/2

20 isn't a person, but then you have to have 23 to make --

21 that kind of becomes your threshold; you have to have

22 23 people to achieve.
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1 MR. THARP: That covers that, okay, 90

2 percent or better.

3 MR. EISNER: I'm not sure what we have.

4 MS. ARMSTRONG: The key is that we get the

5 same numbers.

6 MR. DOPPEL: Well, essentially -- this is

7 Paul Doppel with Mitsubishi -- essentially what that

8 gets us to is it's the two number; two abstentions --

9 two negative votes and then that would be further

10 reduced down to one negative vote. Everybody just

11 needs to be clear of that. I think if we go three, I

12 think three is -- I feel more comfortable with that

13 number, so that would be like an 88 percent. So if

14 everyone's voting, then you have to have at least 88

15 percent.

16 MR. EISNER: Do you want to go with a number?

17 MR. DOPPEL: Well, if we go 88 percent and

18 then -- but then as you go down, then it quickly drops

19 back to two percent or two negative votes.

20 MR. EISNER: Do you want to then go with a

21 number so it's not affected by who's voting and who's

22 not voting? To simply say three negative votes, we
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1 don't have consensus.

2 MR. DOPPEL: Go ahead, Karen.

3 MR. MYERS: Well, I'm going to disagree with

4 you a little bit, Paul. At 90 percent, you would still

5 have to have three to keep something from going forward

6 because 90 percent --

7 MR. DOPPEL: Right.

8 MR. MYERS: -- I mean, so you still have to

9 have three people disagree. Two people disagreeing

10 would not stop it from going forward. It would still

11 go forward because you would achieve your 90 percent.

12 MR. DOPPEL: Right.

13 MR. MYERS: Right?

14 MR. EISNER: Depends on how you word the 90

15 percent. You have to have support of 90 percent or you

16 have to have 10 percent object? Because it works --

17 depending on the numbers -- Louis Starr wants to speak?

18 Louis?

19 MR. STARR: Yeah. Can you hear me, first of

20 all?

21 MR. EISNER: Yes.

22 MR. STARR: Oh, okay, great. I just need a
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1 little bit of help. I'm trying to -- I'm thinking

2 there are issues we're going to run across where

3 there's enough products out there that of the 25

4 members, ORPA, five people are going to produce a

5 product and you know, most of the people are going to

6 abstain.

7 And so I'm trying to figure out if we're at a

8 90 percent level and we've got, you know, five people

9 voting, it seems problematic if you're using a number.

10 So the idea of using a percentage when you're at a

11 lower number makes sense. But when you're at a higher

12 number, selecting a number of people like two or three

13 or whatever that number is, but once you got below a

14 certain number of people that are interested in the

15 issue, it seems like you need to maybe -- I'm not sure

16 what the metrics are, but I know that there needs to be

17 a different metric when you have 25 people voting or

18 when you have five people voting.

19 So I guess you're talking about that, but I

20 kind of want to think through what the implications of

21 that are. Thanks.

22 MR. EISNER: Other thoughts? Do we want to
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1 go with a number? Do we want it to be three or two to

2 stop consensus? Do we want to go with a percentage

3 which is going to change depending on how many people

4 are voting?

5 Yes, Charlie?

6 MR. HON: Charlie Hon, True Manufacturing. I

7 would say just put the number two there for a couple

8 reasons. Number one is that it eliminates the single

9 person driving his heels in against one product. If we

10 go with percentages, a lot of us who have no real

11 interest in a product -- certain activity within the

12 committee who should be voting abstention because it

13 has no relevance to us whatsoever will probably want to

14 vote in favor of things that we're really not sure of

15 what that we're voting for because we want to keep the

16 percentages realistic.

17 If we have two people negative about a

18 product, some problem they see, we probably have a loss

19 of consensus. So rather than fight all this back and

20 forth, percentages and all, we just draw a line and

21 drive the stake in and be done with it.

22 MR. SACHS: Will that get us lunch?
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1 MR. EISNER: We're a long way from lunch.

2 Two, any objections to two? Two negative

3 votes, you don't have consensus?

4 MS. MEYERS: Is this just for the full

5 working group committee or would this also apply to

6 subgroups?

7 MR. EISNER: The full group is the group that

8 makes the decisions. Subgroup can present -- unless

9 you want to vote on subgroup rules, they're going to

10 generally be gathering information from you, doing

11 research; you could let them vote, they could decide

12 their own voting, you could tell them how to vote. But

13 you make the decisions on what to recommend to

14 ASRAC. You can ask them questions, for

15 example, when they come back in: "Did you guys agree

16 unanimously on this? That sort of thing."

17 MR. DOPPEL: Paul Doppel, Mitsubishi. One

18 more thought. If it's less than -- 15 or less, it

19 takes two; greater than that takes three negative

20 votes. Doesn't stop a ballot measure.

21 MR. EISNER: So you want to put that in the

22 ground rules; if there are more than 15 people voting,
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1 if there are less than 15 people voting -- fewer?

2 MR. DOPPEL: Yeah. Right, that gives some

3 balance. The percentage, you don't know the number of

4 people. You know, so essentially if you have 15 or

5 less, two is a reasonable number and then greater than

6 that, it should take three.

7 MR. EISNER: Any people want to speak about

8 that?

9 MR. BALLO: Tim Ballo. I guess my concern

10 about that is similar to the point Charlie raised that

11 you then have an incentive for people that care very

12 strongly about an issue to try to get others who may

13 not have much of an interest in that issue to cast a

14 vote when they otherwise would have abstained just for

15 the purposes of crossing the threshold over 15.

16 MR. EISNER: Let me go back to two. Anybody

17 object? [2:31:02]

18 If we're willing to live with two for now at least?

19 Okay, that takes care of the first sentence.

20 "The committee will operate by consensus,"

21 which for these purposes means no more than two

22 negative votes on a particular issue. We don't need
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1 any of the present in voting the way we've done it.

2 Second sentence, "Concurrence will be assumed

3 absent over dissent, evidence by a negative vote." That

4 can be deleted. Does everybody agree?

5 Third sentence, "Abstention will not be

6 construed as a negative vote." I think that's fine to

7 leave in.

8 "All agreement reached during the

9 negotiations are tentative and may be made by the

10 members present at the meeting and their alternates who

11 attend the meeting in their stead until the committee

12 reaches an agreement that is binding on the parties."

13 I don't know if we want to leave the language

14 on binding on the parties if we have negative votes now

15 being allowed. So do we want to leave that last

16 sentence in, take it out completely, or just simply say

17 until the committee reaches an agreement, period? Three

18 alternatives; I'm willing to listen to more. Always

19 willing to listen to more.

20 MS. BARHYDT: I think we should leave it in

21 for now until we actually talk about what would or

22 wouldn't be binding and then we can revisit that,
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1 because I think that it's going to be important on what

2 the -- what everybody agrees is binding on the parties

3 in the first place before we really know whether or not

4 people are willing to agree to that term.

5 MR. EISNER: Anybody have any objections to

6 that? Can I assume that hearing none, we can go ahead

7 then? Congratulations, we've finished paragraph A.

8 B, this issue came up -- actually let me go

9 back to this note here. Does "present" mean physically

10 present? Can a working group member vote by proxy? I

11 think we're allowing vote electronically, so I assume

12 that's the equivalency of a proxy; isn't it? Is that

13 the way you --

14 MR. HON: It's not voting -- there's more

15 recommendations in there that's called for.

16 MR. EISNER: Okay, so if --

17 MR. COHEN: Could not vote by proxy, that --

18 you have to vote -- I'm sorry, this is Dan Cohen.

19 Electronic voting was meant to be you could -- you

20 didn't have to physically be here, but you could be on

21 the phone, on a webinar or something. Not vote by

22 proxy, not have --
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1 MR. EISNER: Wait, wait, wait, let's -- it

2 was a two-part question.

3 MS. BARHYDT: It has to be here.

4 MR. EISNER: Does "present" mean physically

5 present?

6 MR. COHEN: No.

7 MS. BARHYDT: No.

8 MR. EISNER: So the answer to that is no, it

9 doesn't mean physically present. So then that I think

10 means -- the second question is irrelevant, can a

11 working group member vote by proxy. They don't have to

12 vote by proxy. They can -- they don't have to be

13 present.

14 MS. ARMSTRONG: But they can't send somebody

15 in their place. That's the difference.

16 MR. EISNER: They can't give a right to a

17 third person to vote on each issue.

18 MS. ARMSTRONG: Exactly.

19 MR. EISNER: Okay, does everybody understand

20 that? Nobody has a problem with that? Do we need to

21 add anything? Does anybody remember what paragraph

22 this was in? This is F1?
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1 MS. DANE: F1 under attendance.

2 MS. MEYERS: So this is Karen with Rheem. So

3 you can't vote by proxy but you can send an alternate

4 who can vote for you; is that correct?

5 MR. EISNER: Yes, yes. That's how I

6 understand it and you can also attend the meeting by

7 telephone or by the web.

8 MS. MEYERS: But if you can't do any of those

9 and you send an alternate to represent you --

10 MR. EISNER: No, you can send an -- you have

11 an alternate and the alternate can come, but as I

12 understand it, if the alternate can't come, you can't

13 have -- you can't give your vote to someone else on the

14 committee.

15 MS. MEYERS: Okay, but your alternate can

16 vote?

17 MR. EISNER: Is that understood by you guys

18 from the last meeting? The alternate can vote if the

19 regular member can't attend.

20 MR. COHEN: What defines an alternate? They

21 can have an alternate at the meeting, but not -

22 COURT REPORTER: Can you say into the mic,
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1 please?

2 MR. COHEN: So this is just how it worked

3 under these ground rules in the last -- this is Dan

4 Cohen of DOE AGC. In the prior negotiated rulemaking

5 for distribution of transformers, an alternate could be

6 present and represent interests in discussions and

7 participate in the meetings, but not vote.

8 MR. EISNER: Oh, the alternate cannot vote?

9 MR. COHEN: Correct; only the member could

10 vote.

11 MR. EISNER: Okay.

12 MR. COHEN: Do you want to read that part?

13 MR. EISNER: It says "and to represent the

14 interest." But it doesn't say anything about voting.

15 MR. COHEN: Right.

16 MR. EISNER: Do we want to focus on that and

17 to say to represent the interest, but not vote?

18 MR. AMRANE: That's what it says in 2D right

19 there. D, look at D. 2D.

20 MR. EISNER: Okay, only committee members may

21 vote.

22 MR. AMRANE: But think you can --
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1 MR. EISNER: And any alternate -- the

2 alternate casting a vote shall do so on behalf of the

3 committee member, not as a representative -- okay. So

4 the alternate can vote?

5 MR. AMRANE: Yeah.

6 MR. COHEN: That's the way we did it last

7 time.

8 MR. EISNER: All right, let me put it this

9 way: do we have agreement that that is the way we want

10 to do it at this meeting, the alternate can vote?

11 MR. AMRANE: Yes, I think so.

12 MR. EISNER: Anybody disagree?

13 MR. HON: What's the OE's opinion of that as

14 - - since they appointed the committee?

15 MR. EISNER: Yeah, I mean, under Federal

16 Committee Advisory Act no problem? Okay.

17 MR. HON: I would think so. Yeah.

18 MR. EISNER: Okay. All right. That brings

19 us up to B, work groups.

20 MR. MYERS: Could you go back to the A? I

21 think there was an error in the first sentence of the

22 last item we were working on before we digressed.
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1 MR. EISNER: 3A consensus, the first sentence

2 you think has got something wrong? As retyped or --

3 MR. MYERS: No, this is where we were before

4 we stepped back to this. On consensus, it appears to

5 me that it says the working group will operate by

6 consensus, which for the purposes means the unanimous

7 concurrence of all parties to the negotiations. That's

8 pretty clear that's 100 percent have to agree.

9 MR. EISNER: Yeah, that's not a --

10 MR. MYERS: By putting a "but" after that

11 doesn't change the first part of the sentence.

12 MR. EISNER: No, I agree; that was not what

13 we agreed to in my understanding.

14 MR. MYERS: Okay, thanks.

15 MR. EISNER: The working group will operate

16 by consensus for which -- which for these purposes

17 means no more than two negative votes. Or two negative

18 votes I think we agreed would stop it, would not be

19 unanimous. Means no more than one negative vote I

20 think is what we agreed to. Am I wrong?

21 No, it means two negative votes stop it.

22 MR. MYERS: Right.
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1 MR. EISNER: No more than -- no more than

2 would mean three would stop it. Two would not stop it.

3 MR. MYERS: No, can't --

4 MR. EISNER: Two negative votes stop it.

5 MR. MYERS: Correct.

6 MR. EISNER: Is that what everybody agreed?

7 MR. MYERS: Yeah, correct.

8 MR. EISNER: Okay, no more than two negative

9 votes. Anybody disagree? Okay.

10 Thanks for pointing that out. Work groups,

11 subparagraph one, any issues, concerns? It says in the

12 second sentence "consist of no more than 15 people,"

13 but it says "each party may designate a member of the

14 work group." How did you resolve it if more than 15

15 people wanted to designate a member?

16 MR. COHEN: We usually didn't have

17 overwhelming at the meeting.

18 MR. MYERS: Shouldn't this be sub working

19 groups?

20 MR. EISNER: It should, yeah; that's part of

21 the whole context. This has to be a sub work group so

22 as not to confuse everybody. Is everybody comfortable
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1 with leaving the language as it is in the second

2 sentence?

3 MR. MYERS: Seems like that would be

4 confusing to not say subgroup or something since this

5 is a working group.

6 COURT REPORTER: I can't hear who's speaking.

7 Use the mic, please.

8 MR. EISNER: They're asking you to repeat for

9 the mic.

10 COURT REPORTER: Thank you.

11 MR. MYERS: I believe it would be confusing

12 to leave this as work groups as this main group is a

13 working group so we wouldn't know for sure which one

14 we're talking about. I think sub working group or

15 subgroup would be better.

16 MR. EISNER: Yeah, I think we've -- I agree,

17 I think we've all agreed that when we have time, they

18 can make all these edits because these terms are used

19 throughout; we want to make sure we pick them all up.

20 These are sub working groups we're talking about now.

21 MS. BARHYDT: That one stays the same.

22 JILL HOOTMAN: This is Jill Hootman from
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1 Trane. If we had all commercial HVAC, are we going to

2 be up to 15 people or not? I mean, I imagine that

3 commercial HVAC might be one of the subgroups and so I

4 was just trying to add up how many we have.

5 MR. EISNER: I think part of what we're

6 getting at here is this is a sub working group. Do we

7 want to make sure that everybody can be representated,

8 and then if everybody at the table wants to go, then we

9 don't have a sub working group anymore. So can we

10 agree that it should be limited to 15 people or are

11 some people concerned that that won't be enough? Has

12 to be some limit because otherwise everybody at the

13 table will just go to the same meeting. All right, 15;

14 is everybody okay with 15 being the limit?

15 MR. MOLVIE: This is Pete Molvie. I have to

16 think that if the subject matter is important enough

17 that you need more than 15 -- that more than 15 people

18 want to be on it, it needs to be handled by this group,

19 not a subgroup.

20 MR. EISNER: That's another way of putting

21 it; yes, I agree. Do we need the each party may

22 designate a member of the work group? Should we just
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1 say the membership will be decided by the working group

2 up to a maximum of 15 people? Anybody disagree with

3 that? Anything else anybody wants to change?

4 MR. SACHS: Neil, I'm not terribly

5 experienced with this, but it seems to me that if an

6 issue is important to member of the working group, they

7 ought to go, and if we run into a problem that there

8 are 20 people, we'll find out about it and I'm not sure

9 we need to set the arbitrary restriction this early

10 before we can think about -- Pete's pretty sharp from

11 ARC there. I'm not sure we need this language.

12 MR. EISNER: Okay, anybody disagree with

13 that? So we can just leave the first sentence in? Take

14 out the "although" sentence?

15 And do we need anything else in that

16 paragraph? Want to leave the last sentence in?

17 MS. BARHYDT: I think we should leave the

18 other sentences there because they address the issue of

19 other interests or sub interests that are not otherwise

20 represented on the working group and it makes explicit

21 that they can be on those working groups, sub work

22 groups.
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1 MR. EISNER: So just take out the limit on

2 the membership.

3 MS. BARHYDT: Mm-hm.

4 MR. EISNER: Okay, does everybody got that?

5 Anybody disagree? Anybody have a problem with the

6 Department of Energy providing appropriate support?

7 Okay.

8 Three, "Work groups are not authorized to

9 make decisions for the committee." We've talked about

10 that. Anybody have any problems with that? It says

11 committee will be -- forwarding a report will be made

12 by the -- with the concurrence of the work group. Do

13 we want to define that a little bit more clearly?

14 Somebody had problems with the concurrence, what it

15 meant? DO we want it to be a majority? Do we want it

16 to be a majority and a minority report if necessary? Go

17 ahead.

18 MR. MYERS: It's Frank Myers, PVI. I would

19 suggest you not put a number on that when you're

20 talking about a sub working group. They do what they

21 can do; they negotiate what they can negotiate. They

22 have those discussions, they bring that information
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1 back to the full negotiating working group.

2 If they don't have consensus, then that's

3 what they report back. If they have consensus -- so I

4 don't think there needs to be a number for that group

5 as to what kind of vote or how many agree. It's just

6 that that information is reported back to the full

7 group.

8 MR. EISNER: Do you think they don't need

9 guidance on when they're ready to report back? In

10 other words, if they have 15 members and 8 vote one way

11 and 7 vote another way, do we need to tell them report

12 back whatever you finally conclude? Or do we want

13 something more than 8 versus 7? Do we want to tell

14 them to work harder?

15 MR. MYERS: I believe they report back and if

16 the full group wants to reassign the task or give a

17 different direction then they do that.

18 MR. EISNER: Everybody comfortable with that?

19 So decisions to forward a report of a work group to a

20 negotiating committee shall be made when the work group

21 has reached a decision or is ready to report its

22 results?
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1 Harvey?

2 MR. SACHS: Harvey Sachs, just alternate

3 wordsmithing, "workshops are not -- work -- sub work

4 groups are not authorized to make decisions for the

5 committee as a whole, but shall report their findings

6 to the sub group." That is to the committee as a

7 whole, to this group.

8 MR. EISNER: Everybody okay with that? Did

9 we get that typed? Do you want that language read

10 back?

11 MS. BARHYDT: No, that should stay "working

12 group." Could you say it again, Harvey?

13 MR. SACHS: You are the working group, right

14 here.

15 MR. EISNER: Right.

16 MR. SACHS: As a whole, take out everything

17 starting with "decisions." Take out "decisions," take

18 out the period after "whole" and put in a comma.

19 I'm getting seasick.

20 Comma, "but shall report their findings to

21 the working group." "To the full working group" is

22 probably appropriate at this point until we clarify the
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1 language.

2 MR. EISNER: Okay, everybody comfortable with

3 that?

4 MR. SACHS: "But shall."

5 MS. BARHYDT: "But shall." Not "that shall."

6 And under number two, I was asked to remove the

7 economist from the list of examples of the support.

8 MR. EISNER: Everybody okay with that?

9 MR. SACHS: Good.

10 MR. EISNER: Okay, if everybody is

11 comfortable with that, it brings us up to number four

12 when the group meetings are -- subgroup meetings are

13 held. Where they're held and that others would be

14 notified - - other members would be notified of all the

15 workgroup meetings so that you can attend if you want.

16 Everybody okay with that language?

17 MR. SACHS: This leaves out the question of

18 whether -- what we've been calling observers would be

19 notified of these subgroup meetings.

20 MR. EISNER: I think you spoke to that.

21 MR. SACHS: Yeah, I did.

22 MR. CYMBALSKY: DOE, John Cymbalsky. In the
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1 Transformers sub working groups, there were -- I wasn't

2 on any of them, but my recollection was that there were

3 no observers. They met off to the side. Tim, I know

4 was on a number of them. Maybe he can speak to what

5 happened.

6 MR. BALLO: My recollection -- Tim Ballo --

7 my recollection was that actually there may have been

8 one non-committee member who was involved, a small

9 manufacturer who got involved in one of the subgroups

10 and -- but the thing is, you know, that person is going

11 to be at a working group meeting if they're interested

12 parties. So they can be appointed to the working group

13 at that point or to the sub working group at that

14 point. And I think -- I imagine that's how it would

15 play out here as well. Someone who wants to be

16 involved in a sub workgroup would already be coming to

17 the meetings and express an interest.

18 MR. BALLO: All right, there's a delay here.

19 So I guess the way to make this public is to form these

20 sub working groups at these full working group meetings

21 and that's how people will maybe be able to

22 participate? I don't foresee us announcing in the
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1 federal register that there are sub working group

2 meetings to go into some small detail of what we're

3 trying to negotiate here, so --

4 MS. ARMSTRONG: Some are by phone.

5 MR. BALLO: Yeah, I think a lot of them

6 happen by phone if my recollection is correct.

7 MR. EISNER: Everybody comfortable with that?

8 MR. THARP: Rusty Tharp. Can the sub working

9 group teleconferences be published on the -- the notice

10 of them be published on the DOE Web site?

11 MR. CYMBALSKY: I guess we can publish

12 anything on her Web site but --

13 MS. ARMSTRONG: I don't know if that's

14 practical. I mean, you may just want to have an ad hoc

15 phone call an hour after the meeting or the next

16 morning or something to follow up on some idea. I

17 guess if you want us to just send us an e-mail and we

18 can announce one if we need to. But I would think that

19 you'd want a little flexibility there such that they

20 didn't have to be.

21 MR. CYMBALSKY: I mean, I think one option

22 here is to create an e-mail blast list or share point
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1 site is what we had for Transformers where everybody

2 who wanted to be on that e-mail list or share point

3 site would be e-mailed of these phone calls and such

4 that were happening in real time.

5 UNIDENTIFIED MALE: I don't think, given the

6 time crunch that we have here at the end of the year, I

7 don't think we want to get too formal and federal

8 register notices and such. I think let's try to use

9 the quicker means of communication to get things done

10 here.

11 UNIDENTIFIED MALE: So if you want to have

12 like an e-mail blast, we can do that and we can support

13 that sort of thing.

14 UNIDENTIFIED MALE: I like that.

15 MR. EISNER: Okay, anybody object?

16 MR. CYMBALSKY: Okay, we'll put that as a

17 ground rule for these sub working group meetings.

18 MR. EISNER: Okay. Heaven forbid we have to

19 discontinue for unproductivity, but that's what E

20 covers; "committee can discontinue negotiations at any

21 time if they do not appear productive." Now I assume

22 that's by the consensus approach, but if people start
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1 walking off the committee, the fact that you want to

2 have with a consensus vote and if you lose key members

3 it's going to be unproductive and to continue.

4 Does anybody object to leaving that language

5 in? Okay, then the deadline for the negotiations. The

6 two dates here, the second date is August 30th, 2013

7 when the term sheet is due, I believe. The question is

8 when the committee should terminate if it should be

9 before that or just on 8-30-13. Or technically could

10 go after. The due date if August 30th for 2013 for the

11 report, then you may want to just use that in both

12 cases.

13 Is that okay with everybody? All right, now

14 the most important decision of the morning, supposed to

15 break for lunch now? Do you want to break for lunch or

16 would you like to see if we can finish this up before

17 we go to lunch? Anybody object to staying and seeing

18 if we can finish it up?

19 MR. AMRANE: Can I ask a question, if I may?

20 Karim Amrane, HRI, and assume for a minute by your

21 August 31st, this working group submit a recommendation

22 to ASRAC and ASRAC is not satisfied or wants this
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1 working group to go back and we find some of the

2 recommendations, so I think -- I'm not sure why we want

3 to disband this working group by the 31st of August. I

4 think we can be a little bit more flexible just in case

5 there is a need to reconvene.

6 MS. ARMSTRONG: I think it says "unless."

7 MR. AMRANE: Does it say "unless"?

8 MS. ARMSTRONG: "Unless the group decides to

9 extend the deadline." So you guys can decide or ASRAC

10 can ask you to then.

11 MR. EISNER: Or we could simply change the

12 date. I don't think there's any legal reason you

13 couldn't extend the date of the committee to, for

14 example, September 30th, 2013. So if the Secretary --

15 MR. CYMBALSKY: Yeah, yeah, I'm sorry,

16 actually -- John Cymbalsky, Dewey, that date is there

17 for a very good reason. That's 90 days before the end.

18 So everybody knows what 90 days means in this room, I

19 think so.

20 MR. EISNER: I think what I'm hearing a

21 little bit of John is -- okay, suppose we get the

22 report out by September -- by August 30th. And the
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1 Secretary reviews it and says, "I know we're up to the

2 deadline," for example, "let's extend the deadline, I

3 want to ask the committee to reconsider X issue or Y

4 issue." Isn't it easier to keep the committee in

5 existence and then extend it than have to recreate it?

6 MS. BARHYDT: Yes.

7 MR. CYMBALSKY: Yeah, that -- yeah.

8 MR. EISNER: So September 30th enough time to

9 do that? Everybody?

10 MS. BARHYDT: Yeah, that's fine.

11 MR. COHEN: If the report gets there by

12 August 30th.

13 MR. EISNER: August 30th, right.

14 MR. SACHS: I'm missing something. In the D,

15 it says "deadline for negotiations." It does not say

16 that this working group is disbanded as a result of the

17 end.

18 MR. EISNER: You're right. No, well, it says

19 "negotiations will terminate," you're right. So

20 negotiations -- see, what I don't understand there in

21 prior report, how the negotiations could extend beyond

22 the date the report was submitted.
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1 MS. ARMSTRONG: So this is Ashley. I think

2 the idea here is that ASRAC has asked for a report in

3 early September, so the committee would have to submit

4 its recommendations, its status, its something to ASRAC

5 by August 30th, or at least that's what we envision.

6 Now, that being said, you could absolutely

7 say, "These are items still on the table." Or ASRAC

8 could come back and say, you know, "We have questions;

9 can you guys continue?" But I think the key here is

10 that at least initially a report has to go to ASRAC by

11 August 30th. Obviously, we don't want to disband the

12 committee and start all over.

13 So whatever language needs to be there that

14 you guys are comfortable with I think is what we're

15 going for there. Yeah, there's an interim like report

16 date, too.

17 MR. SACHS: What happens if we simply delete

18 the first sentence of D?

19 MR. EISNER: I was going to suggest that,

20 too. That must be a good idea.

21 MR. SACHS: I have no problem with that. So

22 we delete the first sentence. Okay. The agreement,
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1 this is what we've got to provide as a part of the

2 August 30th report, a term sheet, statement of the

3 basis for the NOPR.

4 MS. ARMSTRONG: So can I go back one real

5 quick? And Laura, you might want to have said

6 something, but I think that's fine. Except for ASRAC,

7 like John and Kent are going to be asked by ASRAC to

8 report back on August 30th, regardless of whether -- so

9 it says "a reasonable effort shall be made to conclude

10 and report," consensus -- I mean, they're going to be

11 asked to report the status on August 30th or shortly

12 thereafter, regardless.

13 MR. DOPPEL: So you're saying it should be

14 before then?

15 MS. ARMSTRONG: Well, no. I mean, this is

16 fine for a date, but what I'm saying is that report is

17 going to go regardless. So even if you guys, you know,

18 even if you guys don't conclude negotiations or you

19 can't or whatever, they need -- they are going to

20 report back to ASRAC the status, the two ASRAC members

21 on the committee, yeah. Because that's what's been

22 asked of them.
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1 MR. MYERS: One could separate those two

2 items that every reasonable effort will be made to

3 conclude negotiations by August 30th, 2013 and a report

4 will be issued.

5 MS. BARHYDT: That's okay.

6 MR. MYERS: And it would separate the two

7 out.

8 MR. EISNER: Is that okay with everybody?

9 MR. SACHS: I think it's going to be a little

10 different; "negotiations would need to conclude

11 negotiations by August 30th, 2013" semicolon, "a report

12 shall be submitted by that date to ASRAC on the status

13 and any agreed-to term sheet."

14 MR. EISNER: Okay. Should be "report shall

15 be submitted to ASRAC on the status of the negotiations

16 and include any agreed-to term sheet."

17 MR. SACHS: The report should be submitted to

18 ASRAC on that date regarding the status?

19 MR. EISNER: Yeah, on that date on the

20 status.

21 Want to delete the "a" before term sheet.

22 Okay, comfortable with that? All right, the first
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1 paragraph under 4A is what would be included in the

2 terms sheeting in the supporting analysis. Recommended

3 standards for some or all covered products. Will that

4 work here?

5 MS. BARHYDT: No.

6 MR. EISNER: What language would you like to

7 see?

8 MR. BALLO: Maybe recommended regulations?

9 MS. BARHYDT: Yeah.

10 MR. EISNER: For some or all covered

11 products? IS that what we're talking about?

12 MS. BARHYDT: Go all the way back to the end

13 of that line where it says "recommended" and just take

14 out the "standards" all the way to "regulations." There

15 you go. And "recommended." No, leave "recommended."

16 Okay. Oh, that's not right either.

17 MR. EISNER: Now, in this sentence, "take the

18 form of a written statement that will be signed by all

19 parties to the negotiations," how do you want to handle

20 the lack of unanimity?

21 MR. BALLO: You could say -- this is Tim

22 Ballo -- "that will be signed by all supporting parties
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1 together with a statement of the dissenting views."

2 MR. EISNER: Okay with people?

3 MS. BARHYDT: You could put a statement that

4 says that -- just a single statement that says that 24

5 people agreed, one person dissented and then everyone

6 can sign. Or you could -- I mean, you could word a

7 single statement in a way that would reflect the fact

8 that it was or was not unanimous.

9 MR. EISNER: Well, I think -- is there an

10 issue that you might have ten issues, some of which

11 some people cast negative votes on, others other people

12 cast negative votes; do you want to just leave this as

13 a general with a description of any dissenting votes?

14 MR. ROLPH: Neil Rolph. You could just leave

15 it the way it is and add that the report will include

16 voting results. I mean, because this is just saying

17 everybody is going to sign it and then you can also say

18 that the results are going to be included of votes

19 taken, or something to that effect.

20 MR. EISNER: Is that okay with everybody?

21 All right. While she is working on that, the

22 sentence gets -- the term standard, what the term
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1 "standard or rules" should be deemed to include. Is

2 that satisfactory?

3 MR. SACHS: I have a concern about the

4 paragraph, and I'd like to just raise it now. This is

5 Harvey Sachs. Given the diversity of products under

6 consideration here and the fact that we haven't started

7 discussing the scope, it might well be that this comes

8 out with perhaps the cover over several separate

9 reports for separate -- for the different product

10 classes. And it seems that this language under 4A

11 should reflect that possibility. It may well be that

12 the working group decides that the approach that works

13 best for commercial refrigeration needs to be changed

14 in some details for boilers or --

15 MR. EISNER: But is there anything in here

16 that precludes that from happening now?

17 MR. SACHS: It is written in the singular as

18 "a report," and it seems to me that there is the

19 possibility that we may actually have a set of parallel

20 reports, depending on how the scope comes out. And

21 that of course raises the question of do all of us vote

22 on each of the reports?
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1 MR. EISNER: I'm sorry. I'm not sure I see

2 how that would preclude it though because it does say -

3 -

4 MR. COHEN: Oh, it says "any agreement."

5 MR. EISNER: "Any agreement reached,"

6 "recommended regulations," as in the plural.

7 MR. SACHS: Okay. I'm sorry. I will put my

8 glasses back on.

9 MR. EISNER: Okay. Anybody have any problems

10 with that? So everybody is okay with A?

11 MR. ROLPH: No. I mean, the rest of the

12 sentences need to be modified. I mean, it's talking

13 about a standard or rule and that's not really --

14 MR. EISNER: We can probably take standard

15 out because we've got regulations already in the first

16 paragraph. Does that take care of that concern?

17 MS. BARHYDT: I think the other change you

18 would make if you take out "or" and then if you go down

19 one line down, far left, and change "standard" to

20 "regulation."

21 MR. ROLPH: "Rule" is not used. I mean, the

22 word "rule" is in here still; it's the term "rule," but
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1 we are not using the term "rule."

2 MR. EISNER: Well, "rule" and "regulation"

3 are interchangeable terms.

4 MR. ROLPH: I mean, we're using the term

5 "regulations" here.

6 MR. EISNER: We can change them all to

7 "regulation." Any other concerns?

8 MR. STEPHENS: Phillip Stephens, HTP. To

9 Neil's previous point, do we specifically say or should

10 we specifically say that dissenting votes should

11 provide rationale for their negative vote?

12 MR. EISNER: In this one or -- I'm looking at

13 the B, whether we want to put it there outlining the

14 significant terms of the rule and analysis needed to

15 explain it. Let's look at B; if you could scroll up a

16 little bit.

17 I mean, someplace in here, we should talk

18 about there has got to be a rationale for the package

19 that's forwarded with the recommendation that is going

20 to say that there were negative votes on this issue,

21 that issue; there should be some explanation countering

22 the basis for the recommendation that's made with the
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1 support of something less than unanimous consent.

2 MR. STEPHENS: Should it be in the consensus

3 section?

4 MR. EISNER: It probably should be under Sub

5 A and B here. I think it should go right in perhaps

6 here: "supporting analysis is needed to explain and

7 justify the agreed terms." If we add a semi-colon or

8 something there, "dissenting members may provide their

9 concerns or the basis for their negative vote." That

10 point.

11 So a term sheet outlining the significant

12 terms of the proposed rule and B, supporting analysis

13 as needed to explain and justify the agreed terms from

14 the legal engineering and economic prospective, and

15 semi-colon at the end of that where the period is

16 saying something along the lines of: "members

17 dissenting on particular issues should provide the

18 basis for their negative vote or dissent." Does that

19 satisfy everybody? I would say "should," only because

20 if they don't want to, they don't have to. But if they

21 want to, it has to be included in the report.

22 Everybody okay with that? All right. I am
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1 assuming consensus.

2 MR. SACHS: I'm not sure how it's going to --

3 the no negative comments in C will play with the

4 dissenting.

5 MR. EISNER: Well, that's where the problems

6 come in with allowing negative votes.

7 Let's take care of B. First, "DOE agrees to

8 use the written statement or any recommended

9 regulations as the basis of the notice for proposed

10 regulation to the maximum extent possible and

11 consistent with the agency's legal obligations." This,

12 too, raises the issue: if there are dissenting votes,

13 what does the agency want to say there?

14 MS. BARHYDT: I know when we discussed

15 earlier, there was a view that if the Department did

16 not agree with the recommendation that the group wanted

17 to go forward with making the recommendation, and

18 obviously if DOE did not agree to the recommendation

19 going to the ASRAC, I don't think that the Department

20 is going to agree to issue a Notice of Proposed

21 Rulemaking in accordance with that wholesale.

22 MR. EISNER: I don't want to put you on too
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1 much of a spot, but if it's one sub-issue and in the

2 scheme of things, it's relatively non-significant, even

3 though you do not concur, are you saying the Secretary

4 might not balance the whole thing?

5 MS. BARHYDT: I'm not saying we would go one

6 way or the other. I'm saying that I don't think that

7 we would make a commitment to issue a regulation on a

8 wholesale basis on the basis of using that

9 recommendation where the Department had already taken a

10 view that we didn't support a particular aspect. Now

11 ultimately, we may decide to go forward with and take

12 the recommendation as given. But I don't want to

13 commit us to that up front.

14 MR. EISNER: Would you be willing, speaking

15 on behalf of the Department, to agree to consider --

16 strongly consider or something along those lines the

17 written statement and any recommended --

18 MS. BARHYDT: We could do that.

19 MR. EISNER: Would that satisfy everybody

20 else?

21 MR. SACHS: Laura, I'm not sure I fully

22 understood, but you're saying you all as gracious hosts
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1 are inviting us to spend four months working our butts

2 off and reserve the right to disregard anything we say,

3 whether or not it's consistent with the legal

4 obligations for any reason at all is what I just heard

5 you say.

6 MS. BARHYDT: Okay, then I don't think what

7 you -- I didn't say it right, if that's what you heard.

8 MR. SACHS: It sure is what I heard. You

9 know, I'm getting old.

10 MS. BARHYDT: So one of the things that we

11 discussed earlier on voting was that the Department

12 could -- and I'll take worst case scenario here -- say

13 that wholesale everything that everybody at this table

14 has sat down and agreed to, the Department has said,

15 "We absolutely cannot agree to this. This does not

16 meet our goals." And if that were the situation and

17 this body went ahead and said, "This is our

18 recommendation to the ASRAC," I don't want to have

19 already signed up the Department to say that, "We're

20 going to propose this as our proposed rule."

21 MR. SACHS: Okay. I hear you real good and

22 clear now, ma'am, and if you do that, we're going to
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1 Congress together.

2 MR. HATZIKAZAKIS: And when are we -- excuse

3 me, this is Pantelis -- when are we going to hear then

4 from DOE what are your goals? You are saying

5 eventually we may end up not giving you what your goals

6 are. So what are those goals?

7 MS. BARHYDT: So the goal, as we discussed at

8 the very beginning, is to come out with a framework for

9 a rulemaking that will actually provide -- can we go

10 back to the original statement?

11 MR. HATZIKAZAKIS: But if we give you that,

12 because it is now our goal --

13 MS. BARHYDT: Yes.

14 MR. HATZIKAZAKIS: If we give you that, why

15 would you have any reason to say no?

16 MS. BARHYDT: So I'm not saying --

17 MR. EISNER: Let me, if I could --

18 MS. BARHYDT: Thank you.

19 MR. EISNER: Let me try to -- you have got to

20 look at the paragraph together. You have got to look

21 at this: no negative comments, and the one about not

22 suing, things like that. If you cast one vote on
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1 behalf of your interest, that is completely

2 unacceptable to you, are you willing to waive your

3 right to challenge the rule in court? So I think what

4 you're hearing from the Department is what we talked

5 about at the beginning.

6 MS. BARHYDT: Yes.

7 MR. EISNER: When everybody has a right to

8 say, "I don't agree," and it doesn't happen, that's one

9 thing. It is not just the Department that can say no.

10 It can be one of the interest groups that's looking for

11 a higher efficiency standards. It could be a

12 manufacturer. It could be the testing group. We can't

13 live with that. She is speaking for the Secretary. The

14 Secretary has said, "I don't like this, I can't live

15 with it. Cast a negative vote." She casts a negative

16 vote. There is a difference between saying "the

17 Secretary agrees that he will publish this" and saying

18 "the Secretary will strongly consider or will consider

19 publishing it." It is hard to say, "We will give you

20 our support and publish it, even if we tell you we

21 don't like it and it can't work for us."

22 And don't think of it just in terms of the
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1 Department of Energy. Think about it in terms of any

2 interest. I'm sorry. So think of it in terms of all

3 of your interests. Are you willing here today to waive

4 your right to sue or to challenge or to provide

5 negative comments or anything and live with the rule as

6 written and comply with it if you voted no on a

7 critical part? That's what you have got to think about

8 a little bit today when you go with less than unanimous

9 consensus.

10 Understand, from my experience, you can still

11 get very good rules. The Department of Energy is not

12 saying, "We won't publish anything." They are not

13 saying, "We won't consider publishing everything." But

14 they're saying to you, "We might have to modify that

15 particular part of the rule so we can live with it."

16 Would you be happy with everything else being

17 in the rule after all the time you spent, or as Harvey

18 said, would you be angry that you spent four months

19 negotiating to find out that the part they voted no on,

20 they can't accept. I'm trying to be objective here

21 because I think we're focusing on just what Department

22 of Energy might do. Think about what all of you are
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1 going to say when we come to the binding commitments.

2 MR. SACHS: But the -- this is Harvey -- and

3 I am confused, which is happening too often. I agree

4 not to file negative comments on the proposed rule,

5 yada yada, to the extent that it has the same substance

6 in effect as the term sheet. Okay? Now, let's assume

7 this case: that Laura has decided, "This isn't good for

8 the Secretary, I recommend that the Secretary not sign

9 on." So now there's a rule coming out proposed that is

10 not substantively what was in the term sheet. I

11 certainly, under C, have reserved the right to beat you

12 up.

13 MS. BARHYDT: I agree.

14 MR. SACHS: And that focuses back on the

15 question you've raised, Neil, what if I was a

16 dissenting vote and it comes out against me from DOE.

17 And I haven't figured that out yet. So this time I

18 wasn't confused.

19 MR. EISNER: Because all of you could be

20 dissenters on any one issue. You could be in a

21 minority, a small minority, but it is very critical to

22 you. And you have to focus on what it is you may still
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1 get out of this rule, even if you've lost on that key

2 point. I think the Secretary would look at it the same

3 way.

4 Remember, when the issue comes up in context,

5 the first thing that bothered us on the first page

6 here, by the time you get to the end of the document

7 you might say to yourselves, "You know, we've got a

8 pretty good deal here, even though I didn't like the

9 way they decided on Item Number 2." The Secretary

10 and/or the people, the groups you are representing,

11 could say the same thing.

12 When I talked earlier, after Dan introduced

13 me, I talked about thinking about what is the

14 alternative to a negotiated agreement; right? If we

15 can't reach agreement around this table, they still

16 have a statutory responsibility to enforce a rule. Now,

17 you think about all right, what can I get that would be

18 better than taking a chance as to what DOE would issue

19 without us all working around the table. As you take a

20 step back from unanimous agreement, you start taking a

21 step further and further away from getting something

22 that may work as effectively. It may work beautifully
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1 even with dissenting votes. Everybody may in the end

2 find out they can live with what they've got. It is a

3 little risky.

4 So are you comfortable with "DOE agrees to

5 consider or strongly consider," I don't think -- I

6 think Laura said she would accept that. "Strongly

7 consider" what you submitted. They're trying to send

8 you a message that if they vote no on one issue, that

9 doesn't mean we are not going to follow up with a rule

10 that's either 100% of what the committee by a majority

11 vote passed or very, very close to what they passed.

12 Another example -- and again, this is true for anybody

13 around the table, it's just that they have to write the

14 rule, issue it over the Secretary's signature.

15 They might have said, "We can't live with the

16 number nine; it's got to be the number eight." You all

17 may have said, "No, we want it to be number nine; we're

18 overriding your vote here, we are passing this." Then

19 they may get to the point where it's time to write the

20 rule and they look at it and say, "All right, we can

21 live with nine. Or you know, what we could live with

22 eight and a half; we wanted eight, but we could live
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1 with eight and a half because that is the only thing

2 that is missing." So it's important.

3 That's why I am stressing it right now

4 because otherwise the negotiations will break down

5 every time we get to this issue. Oh, wait, if DOE

6 doesn't support this or if Tim doesn't support that,

7 what does that mean? Does that mean they're going to

8 sue over the rule and we're going to have all sorts of

9 confusion and things like that? That's what you give

10 up when you don't get unanimity. Unanimity is, as some

11 of you recognize by your votes, sometimes impossible to

12 achieve on issues like the ones we may be confronting.

13 You have got to balance it in your mind. So if you

14 can't live with it with "strongly consider," is there

15 something else you want to justify what Harvey said is

16 all the hard work you guys put into this document?

17 MR. BAUMAN: This is Jeff Bauman from

18 National Refrigeration. I guess, Laura, the question

19 that relates to this when this started the statement

20 was "DOE agrees to use the written statement,"

21 basically saying that if we went back and said we were

22 going to use unanimous, then DOE would be obligated to
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1 use. So do we want to separate that out here to say

2 "DOE agrees to use the written statement in any

3 unanimously agreed to standards as the basis and

4 strongly consider using any that were achieved by a

5 vote." You know, kind of separate it there because I

6 think to protect the work here, if we do all agree on

7 something, then I think we feel that yeah, DOE should

8 then be obligated to use that.

9 MR. EISNER: I think that's a good point.

10 MS. MEYER: And I have another question on

11 the no negative comments. If during the negotiation,

12 if DOE did not raise an objection, then do they have to

13 use the recommendation of the working group? So if we

14 are discussing a point and DOE doesn't object, then --

15 MR. EISNER: That's --

16 MS. MEYER: -- when they are writing the NOPR

17 do they have to use --

18 MR. EISNER: That's not a negative vote and I

19 think the way the document is written, a negative vote

20 -- only a negative vote counts as a non-unanimous

21 consent.

22 MS. MEYER: Well, what if the negative vote
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1 was for instance by Rheem, not by DOE? So does DOE --

2 can they then not use --

3 MR. EISNER: Well, again, think of yourself;

4 anybody around the table in the position that you're in

5 when you have got something less than unanimous consent

6 and you know the other party now may sue if there is

7 something else --

8 MS. MEYER: But I am not writing the NOPR.

9 MR. EISNER: They're writing the NOPR. So if

10 a major player or multiple major players have said no,

11 do you want them not to consider that when they decide

12 whether or not they want to issue the rule? It wasn't

13 unanimous. A major player voted against it. Both

14 groups representing energy efficiencies standards --

15 more energy efficient standards in a mutual way, do

16 they need to consider that before they can agree with

17 it?

18 When everybody agrees, including Laura,

19 that's a very, very different decision for the

20 Secretary as opposed to, "These two major players over

21 here don't agree and we're going to have trouble

22 enforcing this rule against them. Do I want to issue
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1 the rule knowing that because everybody else around the

2 table supported it?" Do you want to take that

3 discretion away from the Secretary? Again, I want to

4 stress that's an advantage of unanimous consent; the

5 disadvantage of unanimous consent is you may have very,

6 very good ideas to give to the Secretary, the Secretary

7 may like it despite the negative votes, and you wanted

8 to be able to give that to the Secretary.

9 So is this language okay?

10 MR. AMRANE: Should we add language as Jeff

11 suggested?

12 MR. EISNER: Yes, no, I think -- does anybody

13 oppose that? I didn't think so. If you want to have

14 the original language --

15 MR. CYMBALSKY: That's why one vote can make

16 a difference.

17 MR. EISNER: I am sorry, what?

18 MR. CYMBALSKY: That is why unanimous was

19 good at the beginning, because that one vote --

20 MR. ROLPH: Right.

21 MS. BARHYDT: So Harvey pointed out that I've

22 got a few questions pending for me. And I actually
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1 need to get some clarification myself as to some of the

2 procedural requirements. So I am going to propose that

3 we break for lunch while I get advice of my counsel,

4 and I can hopefully answer some of the questions you

5 all have posed for me.

6 MR. CYMBALSKY: Even our lawyers have

7 lawyers.

8 MR. SACHS: Do we want to use "consensus

9 vote" here or do we want to just keep it the language

10 we have been using, "non-unanimous"? "Consensus" is

11 defined as "something that is less than unanimous in

12 the document."

13 MS. ARMSTRONG: That is what we want for the

14 second part. We're trying to make a distinction

15 between --

16 MR. COHEN: We have got about three

17 possibilities here; right? One is --

18 MR. EISNER: In case of a consensus vote --

19 MR. AMSTRONG: You got a consensus vote which

20 is less than two negative.

21 MR. EISNER: But you could have -- consensus

22 vote also includes unanimity.
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1 MR. BAUMAN: Yes, I think --

2 MR. EISNER: So I think it's got to be a non3 unanimous vote.

4 MS. ARMSTRONG: Okay.

5 MR. BAUMAN: Right, because if DOE objects

6 then it goes out the window again. That's only one

7 vote.

8 MR. COHEN: Well, that's a different

9 scenario.

10 MS. ARMSTRONG: Yeah, I think that's also --

11 MR. BAUMAN: But that -- this is Jeff Bauman

12 from National -- I guess I have to back up a little

13 bit. I mean, we were -- kind of where we got to this

14 is if DOE is that one dissenting vote, then DOE is not

15 going to commit to -- we're not going to be able to

16 force them or they're not going to be able to commit to

17 publishing it in the NOPR. So any single vote would be

18 -- then they would be able to consider -- whether it is

19 Laura or somebody else, anything that is not a

20 unanimous, they would still consider, but they wouldn't

21 be obligated to publish it in the NOPR.

22 MS. BARHYDT: Well, the way that's drafted it
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1 actually, if it's not unanimous, regardless of who the

2 dissenting vote is, it changes the framework for the

3 Department's consideration so that instead of just

4 we're agreeing to go with the recommendation, we are

5 agreeing to consider it, so that we actually get to

6 consider both sides.

7 MR. EISNER: So everybody happy with this as

8 it is written, then?

9 MR. ROLPH: Should it be "non-unanimous

10 consensus vote"?

11 MS. ARMSTRONG: That's a lot of words.

12 MR. EISNER: It could be "non-unanimous" comma

13 "consensus vote." Is that okay?

14 MR. COHEN: Well, why don't we call it what

15 it is? If a non-unanimous consensus vote means that

16 DOE is the dissenting party; right?

17 MR. BARHYDT: No, that is not what they are

18 talking about. They're talking about where there are

19 any dissenting views, the Department would have the

20 freedom to go back and look at the dissenting views and

21 decide how to go forward from there.

22 MR. COHEN: Right. But if there is one
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1 dissenting review, there's still consensus?

2 MR. BAUMAN: Correct. And that's something -

3 - yeah, I think we are saying again whether it is DOE

4 or Rheem or National whatever, somebody then -- DOE

5 wouldn't be obligated to put that in, but they would be

6 obligated to strongly consider putting it in, even if

7 they weren't the ones that --

8 MR. COHEN: So consensus is back to

9 unanimity.

10 MR. BAUMAN: In this case, yes.

11 MR. COHEN: No, I think generally we're back

12 to unanimity.

13 MR. BAUMAN: No.

14 MR. COHEN: But effectively, you are.

15 MR. BAUMAN: No, we're trying to get there.

16 MR. EISNER: The only thing that happens as a

17 result of not having unanimity is that DOE does not

18 agree to essentially publish the document as presented

19 to them. If it were unanimous, they're saying, "We

20 will publish it."

21 MR. COHEN: Right. But that goes back to a

22 consensus and then basically, you really -- otherwise
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1 you could have consensus under the way we have defined

2 consensus, but we don't have to do it because you have

3 one dissenting vote.

4 MR. BOWLEY: Well, you have to strongly

5 consider it.

6 MR. SACHS: "Strongly consider," so the

7 presumption is that it would wind up being published as

8 the rule, but Laura could still say no.

9 MR. COHEN: I understand. We all understand

10 the issue, but --

11 MS. MEYER: But it still doesn't work because

12 now we've defined "consensus" as having to have more

13 than two negative votes unless it's DOE that dissents;

14 then it's only one vote.

15 MR. EISNER: Well, no, I think we have to

16 focus on a vote to present a recommendation to the

17 Department of Energy versus a vote to publish something

18 in the Federal Register.

19 MS. ANDERSON: Isn't that the whole purpose?

20 MR. EISNER: It is a vote to present

21 something. I -- yes, go ahead.

22 MR. STEPHENS: Phillip Stephens. Just a
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1 quick question. I am wondering how we verify that the

2 DOE strongly considers something versus considers

3 something.

4 MR. EISNER: That is a very good question.

5 How do we know that DOE strongly considered it? And

6 the only answer I could give as a facilitator is

7 everybody is at the table in good faith.

8 MS. ARMSTRONG: Well, can DOE talk for a

9 minute -- we'll go to lunch for a second and then

10 revisit this when we get back.

11 MR. DOPPEL: Can I ask one question on this?

12 Paul Doppel with Mitsubishi. Since this is not

13 actually going directly to DOE, but going to the ASRAC

14 committee, then is this kind of meaningless because we

15 don't know what happens after it goes from here. So

16 should instead of saying "DOE," should that say "the

17 committee should strongly consider" that?

18 MR. EISNER: I think we need to make it more

19 complicated. Let's go to lunch.

20 (Whereupon, a lunch recess was taken.)

21 MR. EISNER: Okay. We can get started. When

22 we took a break for lunch, I went to try and facilitate
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1 the discussions among the DOE lawyers by suggesting

2 some potential alternatives that may address their

3 concerns. And I think they've come up with something

4 that is worth our consideration now. Laura, do you

5 want to walk them through the particulars?

6 MS. BARHYDT: So the language up there

7 reflects several different possibilities, and the idea

8 is that maybe with some words in front of us, it will

9 make the discussion a little more concrete.

10 "In the case of a unanimous vote, DOE agrees

11 to use the written statement in any recommended

12 regulations as the basis for the Notice of Proposed

13 Rulemaking to the maximum extent possible, consistent

14 with the agency's legal obligations. In the case of a

15 non-unanimous vote, where DOE is not a dissenting vote,

16 DOE agrees to use the written statement in any

17 recommended regulation."

18 So basically, that way it gives everybody the

19 certainty that all of the negotiations will be put

20 forward, straightforward, into the proposed rule. "And

21 then, in the case of a non-unanimous vote where DOE is

22 the dissenting vote, DOE agrees to strongly consider
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1 the written statement in any unanimous recommended" --

2 we forgot to delete the "unanimous" part there. "DOE

3 agrees to strongly consider the written statement and

4 recommended regulation as the basis for a Notice of

5 Proposed Rulemaking to the maximum extent possible.

6 "In both cases, where there is a non7 unanimous vote, DOE will publish the dissenting views

8 and consider publishing an alternative proposal to

9 reflect the dissenting viewpoints in the Notice of

10 Proposed Rulemaking."

11 So the idea is that it goes one step forward

12 where if there are dissenting votes, we may -- we will

13 publish any dissenting views that are provided as part

14 of the discussions in the Notice of Proposed

15 Rulemaking, but we could also go one step further to

16 actually propose alternative regulatory text to reflect

17 those dissenting views, so that, if anything, it would

18 give not greater weight, but make more concrete the

19 different possibilities that were on the table coming

20 out of the working group.

21 MR. EISNER: Any comments? Thoughts?

22 MS. MEYERS: Yes. So this is Karen with
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1 Rheem. So does this change consensus?

2 MR. EISNER: No. What it's saying in the

3 first sentence is if everybody agrees, there's no

4 question. It is going to be just what it was.

5 MS. MEYERS: What if -- okay. So --

6 MR. EISNER: If it's a unanimous vote --

7 MS. MEYERS: What if it's a consensus vote?

8 MR. EISNER: Well, then, you go to the second

9 sentence. If it's not unanimous, DOE is not a

10 dissenting vote, they'll still publish the written

11 statement and any recommended regulations as the basis

12 for the rulemaking. And, again, it's the same maximum

13 extent possible. So if they haven't dissented, they

14 will just simply publish the report as the Notice of

15 Proposed Rulemaking.

16 In the case of a non-unanimous vote where DOE

17 is the dissenting vote, the third situation, they'll

18 strongly consider the written statement and any

19 recommended regulation as the basis of the Notice of

20 Proposed Rulemaking to the maximum extent possible,

21 consistent with the agency's legal obligations.

22 In both cases, where there's a non-unanimous
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1 vote, they will publish the dissenting views, so

2 everybody can see them.

3 MS. BARHYDT: The idea for all of this is

4 that there has already been a consensus recommendation

5 that has gone to the ASRAC. So none of this is being

6 presented in the context of there not being some kind

7 of vote that met the consensus definition that we

8 already discussed.

9 MR. EISNER: And part of this here, where

10 there is a non-unanimous vote, publishing the

11 dissenting views helps with this no negative comments.

12 Your comments are already reflected in the rulemaking

13 document by presenting the dissenting view.

14 Any thoughts? Any problems? Any questions?

15 Everybody agree with this?

16 (No response.)

17 Again, I want you to think about whether changing a

18 word here or there will help you better feel that you

19 are spending your time working toward an agreement that

20 will be good for all.

21 MR. HON: Charlie Hon, True Manufacturing.

22 If you vote negatively on a particular item, you have
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1 no legal right then to make negative comments on that

2 once published in the Register. But legal actions

3 involved in that --

4 MS. ARMSTRONG: If you vote negatively, you

5 can make negative comments; right? If you --

6 MR. EISNER: That's not what that says.

7 MS. BARHYDT: You agree not to file negative

8 comments.

9 MR. EISNER: Well, we haven't gotten to this

10 yet to negotiate. But if this stays --

11 MS. ARMSTRONG: That's from the unanimous.

12 There was no such thing, right, before?

13 MR. EISNER: No. That's not what that says.

14 MS. ARMSTRONG: I get that. That's the

15 language from when it -- we had a unanimous consensus.

16 MR. HON: That's why I'm asking these

17 questions right now, because right now it's on the

18 board.

19 MR. EISNER: So, I mean, repeat -- would you

20 repeat your question about this?

21 MR. HON: I am assuming, therefore, we

22 cannot, no matter what would happen, and if we were a
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1 negative vote, we could -- it would show in the Federal

2 Register, and that is as far as we could go with it.

3 That would be the end of our ability to contest.

4 MR. EISNER: Contest through the comment

5 process, or contest in litigation?

6 MR. HON: Litigation is my next step.

7 MR. EISNER: Yeah. That's a separate issue.

8 MR. HON: Yes.

9 MR. EISNER: Right now, we are talking about

10 what DOE is agreeing to do with the report that they

11 get, depending on lack of unanimity.

12 MR. HON: Right.

13 MR. EISNER: One of the things you may agree

14 to is, well, they have reflected my views in the

15 preamble, and maybe even in alternative language, so,

16 therefore, I don't have to file negative comments.

17 MR. HON: Right.

18 MR. EISNER: But that doesn't mean we have --

19 you know, we can agree differently down here. But that

20 does partly address this.

21 MR. HON: Okay. Thank you.

22 MR. EISNER: Other thoughts? Yes, I'm sorry.
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1 MS. HOOTMAN: This is Jill from Trane. Oh,

2 I'm sorry.

3 MR. COHEN: No. Go right ahead.

4 MS. HOOTMAN: So this is all about Notice of

5 Public Rulemaking. What if we made a recommendation to

6 go to direct final rule? Is that outside the bounds or

7 --

8 MR. COHEN: Actually, that's pretty simple.

9 So our direct final -- Dan Cohen, DOE, GC. So the

10 direct final rulemaking authority that we have in the

11 statute is for standards. We are not talking about

12 standards here; right? That would be a different

13 question if we were negotiating a standard.

14 MS. HOOTMAN: Okay.

15 MR. EISNER: A question at the mic?

16 MR. MYERS: If you could scroll back up to B,

17 which I think is what we were initially talking about.

18 The first clause and the second clause, or the first

19 case and the second case, are identical except for

20 DOE's dissenting vote. You might be able to simply

21 that some by saying something like, "In the case of a

22 unanimous vote, or a vote where DOE is not the
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1 dissenting vote," and then continue on, because the

2 language after that in both of those clauses is word3 for-word identical.

4 MR. EISNER: Is that acceptable, Laura?

5 MS. BARHYDT: That's up to everyone here. We

6 laid them out separately so that it would be easier to

7 discuss them as separate elements.

8 MR. EISNER: Any other thoughts? Concerns?

9 Phillip?

10 MR. STEPHENS: Phillip Stephens, HTP. I

11 think before the break, someone asked the question

12 about how this relates to ASRAC, because it's going to

13 go through the ASRAC Committee before it goes to the

14 DOE.

15 MR. EISNER: This is talking about in the

16 case of a unanimous vote, DOT agrees to use the written

17 statement. I guess that gets indirectly at ASRAC,

18 because ASRAC votes under different consensus

19 standards.

20 MS. ARMSTRONG: They want to know how this

21 would work under ASRAC, because ASRAC is a different

22 consensus process.
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1 MR. EISNER: ASRAC is the one that's actually

2 making the recommendation on which the Secretary is

3 going to act. I think that's a legitimate concern that

4 probably has to be addressed, and it's probably -- it's

5 a wording issue I think rather than a substantive

6 issue.

7 MR. DOPPEL: Yeah. This is Paul Doppel. I

8 made that recommendation, and my concern was that, you

9 know, we're having the anticipation here that what we

10 send goes straight through, and that may not be the

11 case.

12 MR. EISNER: Well, I mean, at a minimum --

13 and I don't know the exact workings of ASRAC -- it

14 could say, "In the event of a recommendation from ASRAC

15 that is based on a unanimous vote, the following would

16 happen." And if you assume it is going to go right

17 through, that takes care of it.

18 If they have a different voting technique, it

19 is still based on the fact that this Committee, which I

20 think is what you're concerned with -- but, again, you

21 can talk about that -- this Committee is what everybody

22 is concerned about. What is a unanimous vote or a non-
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1 unanimous vote going to mean in this Committee?

2 And when you talk about presumption of what

3 will happen in ASRAC, are you assuming that whatever

4 report comes out of ASRAC is going to contain the

5 dissenting views and all, or just what goes into ASRAC?

6 And I don't know the answer to that.

7 MR. CYMBALSKY: We should keep in mind that

8 there is two members of ASRAC that are on this working

9 group. So it is our thought that they are actually --

10 you know, they have been delegated by ASRAC to be kind

11 of their voice and ears. So hopefully as we go forward

12 with something to the full ASRAC, you have had two

13 members of this working group that have kept that in

14 mind to help it go through ASRAC.

15 MR. EISNER: Yes.

16 MR. HON: Charlie Hon, True Manufacturing.

17 But the problem is is no matter what we do, this is

18 still a Subcommittee for ASRAC. They are the true

19 recommenders. So if they read the dissenting vote,

20 dissenting comments, and end up with agreeing -- there

21 are people in that group agree with the dissenting

22 votes, they can vote us right off. And that's just the
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1 facts of -- that's just the nature of what we have.

2 We can say that DOE shall and the DOE shall,

3 but the DOE is not the connection here. It is still

4 the ASRAC group to DOE.

5 MR. EISNER: And all of you still have a vote

6 on ASRAC; right?

7 MR. HON: No, no, no. They'll --

8 MR. EISNER: No. I don't mean you

9 particularly, but your interests. For example, you may

10 not represent DOE on the ASRAC, but there is going to

11 be a DOE representative. Is there going to be a DOE

12 representative from the other interest groups there?

13 And the reason I'm asking is because I don't know how

14 it operates, and it may not make any difference.

15 As long as whatever comes through ASRAC to

16 you is not changed -- the vote may be different, but as

17 long as it's not changed, DOE will reflect in the

18 preamble what was sent to them except to the extent

19 that they will also add to the preamble the dissenting

20 opinions, and maybe propose alternative language for

21 consideration.

22 And that's I think another important point.
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1 They will not take out the recommended language. They

2 will add to it another alternative.

3 MR. HON: How do we know that?

4 MR. EISNER: Know what?

5 MR. HON: That ASRAC will do that.

6 MR. EISNER: I don't. I don't know much

7 about how this group interacts with ASRAC.

8 MS. MEYERS: So what if ASRAC is one of --

9 what if one of the ASRAC members on the working group

10 is one of the dissenting votes? They have the

11 opportunity to influence the full Committee much more

12 than the rest of us working group members do. Should

13 the ASRAC -- and this is just an idea -- should the

14 ASRAC folks be allowed a vote on the working group

15 recommendation?

16 MR. EISNER: Do you mean should it just go

17 through ASRAC right to the Secretary?

18 MS. MEYERS: Well, for --

19 MR. EISNER: See, I don't think that legally

20 they can do under the Federal Advisory Committee Act.

21 I don't know how ASRAC normally works, so I don't know

22 whether there's an issue.
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1 MS. MEYERS: Yeah.

2 MR. EISNER: So --

3 MR. CYMBALSKY: You know, the voting rules

4 for ASRAC are a lot less stringent than what you have

5 here, and I think that has been brought up, that their

6 consensus is 75 percent. So it would be -- well, I

7 don't -- we can talk afterward, but I think -- I don't

8 know. You have two members of the full ASRAC on this

9 working group. And in my opinion, based on how

10 Transformers worked, those two members should be

11 keeping the ASRAC how we're going to vote in the back

12 of their mind and looking out for those interests as

13 well.

14 MS. MEYERS: Can you put up the negative

15 comments thing again? And does that apply to -- okay.

16 Never mind.

17 MR. EISNER: Do you mean this sentence here,

18 "DOT will publish the dissenting views"?

19 MS. MEYERS: Okay. So here is my question.

20 So the working group has unanimity. We make the

21 recommendation, so it says we can't put any negative

22 comments. But what if that is not what ASRAC
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1 recommends? Or maybe they change part of what we --

2 part of our recommendation. So how does that then

3 apply to us?

4 MS. ARMSTRONG: Wouldn't that change the

5 substance and effect of the term sheet? I mean,

6 wouldn't that void that statement, if the substance and

7 effects of the term sheet is not intact?

8 MR. EISNER: I think that's a very good

9 point. We're trying to satisfy everybody around this

10 table that your time spent will be well spent. Even if

11 there are dissenting views, those dissenting votes will

12 be heard, for example.

13 If ASRAC decides to change that, all we have

14 is an agreement among everybody else as to what would

15 be done with this report. If they send through

16 something other than what is in the report, and there

17 are so many different things we can do -- they can do,

18 I don't know how we can handle it.

19 We're setting up ground rules for this group,

20 not for ASRAC. And if they want to modify one thing by

21 taking one word out, it's kind of hard now to get

22 everybody to commit to it based on -- something on what
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1 they do. So maybe you want to consider whether to get

2 the good faith effort here working and working well.

3 We will agree to what we can agree to, what we have

4 control over, which is what this reflects.

5 To the extent we were going to modify the

6 introductory sentences, if you could scroll down a

7 little bit, and pan up at the beginning through -- or

8 it's in here now. "In the event of a recommendation

9 through ASRAC, in the case of a unanimous vote," and we

10 can say -- well, I guess we have to be very careful

11 from a FACA point of view as to how we word that.

12 We can't say, "A vote by the subgroup or the

13 working group is binding," because it's only the ASRAC

14 that is binding. But in the event of a recommendation

15 through ASRAC that is based on a unanimous vote by the

16 working group, we will do the following.

17 And we all agree we won't file comments if

18 DOE provides a written statement as to what you said.

19 And if you're a dissenting view, you'll probably have a

20 role in writing that language. Harvey?

21 MR. SACHS: One of the things I'm picking up

22 on is that the whole ASRAC process is still pretty much
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1 a toddler. We are all trying to learn and develop. As

2 I think about things that come up in the last 10

3 minutes, including Karen's remarks, one of the issues

4 is just an awful lot of ambiguity and nebulosity about

5 the relationship between the working group and ASRAC

6 itself.

7 And we have heard from John that there is an

8 assumption that the ASRAC members who are on this

9 working group will be making sure that there is

10 continual communications. If that's the case, what I

11 wonder is whether it's worthwhile asking for an

12 understanding, written, that basically says, "ASRAC is

13 involved. ASRAC, on receiving the term sheet," or

14 whatever, other work product, "may either pass it on or

15 send it back for revision, but may not modify the work

16 of the workgroup." That should be perfectly comfortable

17 for them if they have been involved.

18 MR. EISNER: I'm not sure from the Federal

19 Advisory Committee Act that that would work. We can't

20 tell them if they don't like what we propose; they have

21 to send it back to us, and when they finally accept it,

22 it has to be what we propose.
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1 MR. SACHS: They have -- they can offer that

2 to us, though.

3 MR. EISNER: They can offer that to us.

4 MR. SACHS: So we can ask them to offer it.

5 MR. EISNER: You could add a sentence here,

6 "In the event that ASRAC wants to change any of the

7 recommendations" --

8 MR. SACHS: They should send it back to us.

9 MR. EISNER: -- "we respectfully request that

10 they return it to the working group for its additional

11 comments on the matter."

12 MR. SACHS: That's fine with me, if the

13 wording is a little bit less subtle and says, "We are

14 requesting now at the beginning that they agree to send

15 it back rather than modify it."

16 MR. EISNER: Yeah. I defer to the experts.

17 MR. COHEN: I don't think the subgroup can

18 tell the -- so I think, just as a pure legal matter

19 under the FACA, I don't think the subgroup can bind and

20 direct the parent committee.

21 MR. SACHS: Point well taken. Dan, point

22 well taken. This is Harvey again. But could not the
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1 parent make that offer to the working group?

2 MR. COHEN: Yeah. Absolutely. The parent

3 can -- they can choose to do what they want.

4 MR. SACHS: Well, I'm happy to --

5 MR. COHEN: The child just can't -- like in

6 your house, I'm sure the child just can't direct the

7 parent.

8 MR. SACHS: Yeah. But in my case, the

9 grandparents can.

10 The grandchildren can. So I'm happy to wait

11 for that offer to come from the Committee.

12 MR. COHEN: And that would be fine. As a

13 legal matter, that's fine. It's just --

14 MR. EISNER: I mean, I don't even know if our

15 ASRAC members are still online, if we can communicate

16 with them now, or can we have communications with them

17 after the meeting?

18 MR. HON: It's Kent and John -- are either

19 one of them --

20 MS. BARHYDT: John's not.

21 MR. HON: Kent Peterson?

22 MS. BARHYDT: No.
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1 MR. HON: No. Okay.

2 MR. EISNER: My suggestion -- oh, I'm sorry.

3 Go ahead, Charlie.

4 MR. HON: The timeline is now all screwed up.

5 If we -- if they send back to us with an August 30th

6 deadline, we would have to drop the timeline on our

7 August 30th deadline to early August to make this work

8 at all.

9 MR. SACHS: Don't tell them that.

10 MR. HON: Sorry, Harvey.

11 MR. EISNER: And if you sent it to them on

12 August 30th, maybe it's too late for them to make any

13 changes. I think we should proceed as if what we

14 recommend in this group goes up to ASRAC. They will

15 like the work that has been done. Especially the

16 closer we get to unanimous consent, they will like what

17 we have done, and they will send it forward.

18 I think that is normally the way these kinds

19 of groups work. They get advised and they get the

20 information in the report, they get the recommendations

21 in the report. I think the chances are pretty good

22 that they would support it if we do a good job on it.
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1 MR. HON: I would just like to have DOE's

2 understanding that if by chance our recommendation is

3 changed, then we are no longer bound by the no

4 objections.

5 MR. EISNER: I think they have already

6 acknowledged that this is based on what happens down

7 here.

8 MR. HON: Okay. That's fine by me, because

9 with them stating that as acceptable --

10 MR. EISNER: Yeah. No. I think the

11 agreement, as written, reflects that. And that is

12 their understanding.

13 MS. ARMSTRONG: So just to follow on one

14 thing as an aside, so I'm the DOE rep on ASRAC. I'm

15 one of the 11 voting members on ASRAC. I think what

16 you just described is exactly how we have at least

17 discussed the intent of ASRAC. I can't promise, I

18 can't speak for all of the other members, but I think

19 the idea of these working groups was that you guys will

20 do the hard work and you guys will come up with your

21 best recommendation, and that we don't have an

22 intention of changing that recommendation unless there
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1 is something -- we may come back and ask clarifying

2 questions, we may come back and ask you to do more work

3 in a certain area, but the intent wasn't that ASRAC

4 would then completely change your -- all of your hard

5 work that you have done. At least that has been our

6 discussions to date.

7 MR. EISNER: And what you saw at lunchtime

8 when they all met to talk, they said the lawyers were

9 going to talk to their lawyers. And when I went to

10 talk to them about it -- and that's the same thing

11 you're doing with your interest groups that you're

12 representing or your bosses and your different

13 companies, when you are here representing your company

14 as part of one big interest group. You are all doing

15 that.

16 This was rare, to have it happen during a

17 meeting, but it's not, you know, unlikely to happen

18 every once in a while. I can't proceed further and

19 vote on this until I can check with other people,

20 because this is something I did not contemplate would

21 come up. Those kinds of things go on all the time, and

22 that's a sign that the process is working.
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1 Laura is not here speaking for Laura. Laura

2 is here speaking for not even just the Department of

3 Energy. If she has to, directly or indirectly, she may

4 have to talk to OMB. She may have to talk to the Small

5 Business Administration.

6 And that is what this process is all about,

7 and that's why it is hard for somebody, then, to get in

8 there and reverse what you've done because if you've

9 done your work well, and you represent your interests

10 well, then they are not going to come up with different

11 opinions.

12 All right. Let's go on. I think we've got

13 consensus on this. Let's go on to the very next one

14 and see if we agree on that, and that's the no negative

15 comments. Are you comfortable with that now, based on

16 what you've heard, Harvey?

17 MR. SACHS: This is Harvey from ACEEE. I got

18 a comment back from somebody who is trying to

19 participate on the web with respect to 2D. And I don't

20 know if you want to revisit it, but his comment was

21 that he felt that the use of alternates did not work

22 well in the Transformer process, and that he would
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1 recommend that this group not allow alternates, or

2 certainly not allow alternates to vote, feeling that

3 they probably would not be fully briefed.

4 MR. EISNER: Has anybody else had any

5 experience they want to talk about with alternates by

6 our reg negs? Thoughts or comments on this? I mean,

7 Dan, are you aware of any down sides to not allowing

8 them to vote?

9 MR. COHEN: I just wanted to ask Harvey, what

10 was the negative experience? I'm just not sure --

11 MR. SACHS: Hi, Harvey. It is very hard to

12 participate in webinar. I would suggest not allowing

13 alternates and certainly not allowing them to vote.

14 This was a problem on the Transformer regulation. This

15 was Louis Starr. That's --

16 MR. COHEN: No explanation, really.

17 MR. SACHS: This is Harvey. Dan, I'd

18 recommend that we leave the possibility of revisiting

19 that, if he fills this out, but continue with our

20 direction now, since I don't have any further

21 information.

22 MR. EISNER: Okay. Everybody agree that's
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1 reasonable? And I would also note that if in the first

2 meeting or the second meeting you have a problem with

3 an alternate voting who wasn't involved in this

4 meeting, or subsequent meetings, you can change the

5 rules. In fact, you -- after this, it will be even

6 easier. We are trying to get unanimous consent here

7 today.

8 All right. Let's go on. I think we are up

9 to paragraph 4C, no negative comments. Consider this

10 phrase now -- this was in a different kind of an

11 agreement. Do you still want this kind of an agreement

12 considering the fact that DOE is committed to

13 publishing those negative comments? Any negative voter

14 would have the option of working with the Department

15 and preparing the language.

16 I think we anticipated in here that it would

17 be included in the report to the full ASRAC, so it

18 could be just lifted right out of there. Any problems?

19 (No response.)

20 Okay. I assume we have consensus on that.

21 Next one is response to public comments.

22 MS. BARHYDT: Sorry. So the language there
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1 talks about instances of unanimity. And so the way you

2 framed the question, Neil, was where there is not

3 unanimity, what do people think about negative

4 comments? And so the language doesn't reflect anything

5 other than cases of unanimity.

6 MR. EISNER: Thoughts? Did you want to

7 speak?

8 MR. ROLPH: Neil Rolph. Is there somewhere

9 that it dictates this subject? Some legal setting that

10 set up the negotiated rulemaking process that forces

11 this language in here? Where does this come from?

12 MR. EISNER: All right. My recollection, as

13 somebody who was involved in this process from the very

14 beginning, but that was a lot of years ago, is that

15 agencies simply initially committed to publishing the

16 results. They would work with consensus -- they would

17 work to achieve consensus, however that was defined,

18 and then they would agree, to the extent that it was

19 not legally impermissible, they would publish the

20 results.

21 And that agency started saying, "Wait. We've

22 got to get a little bit more." We got everybody's
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1 consent around the table, and then you file negative

2 comments. Or we get everybody's agreement and we

3 publish a final rule, and you sue us over something

4 that you agreed to. So we want you to agree not to

5 sue. We want you to agree not to come out with a

6 negative comment after you voted in favor of something.

7 They wanted some kind of commitment, just

8 like the agency made the commitment, and the groups

9 were willing to do that. Again, I can't speak for

10 every group, but this is my understanding of how it got

11 started and the fact that it pops up now more and more,

12 if not all, of these agreements that I'm aware of. And

13 there are many that I'm not aware of. Everything I

14 see, this is what people are starting as a standard to

15 ask for.

16 MS. MEYERS: What if you abstain from a vote?

17 So there is unanimity but you abstain from the vote,

18 can you make a comment on it?

19 MR. EISNER: Can you give me an example of a

20 situation where somebody would abstain but have strong

21 enough feelings to want to provide a negative comment?

22 MS. MEYERS: No.
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1 MR. EISNER: Can anybody else think of one?

2 Because it -- I'm not sure if it is an issue worth our

3 addressing. If you don't -- the example that you were

4 -- others were giving earlier were it doesn't affect my

5 line of business. I don't have any -- I'm not affected

6 at all by what you do with this type of equipment. So

7 in that situation, I can't see why the person would

8 file a negative comment. But there might be situations

9 I'm not aware of.

10 MR. MOLVIE: Instances I have seen on ASME

11 committees where people abstain, it happens very

12 frequently that they haven't done their homework and

13 they aren't sure about what position they want to take,

14 so they abstain to reserve the right to vote negative

15 later. I think that's a real possibility where someone

16 would want to make a negative comment after they have

17 considered it further, because they don't have the

18 information in front of them or whatever.

19 MR. EISNER: What do people think of that?

20 Is that a basis for giving -- allowing them to file

21 later? And another question, purely objectively raised,

22 might it encourage people to abstain rather than get
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1 prepared and make a decision? Charlie?

2 MR. HON: Charlie Hon. You are also -- if we

3 would leave the wording as it is today, you are going

4 to encourage people to vote no, so that they have some

5 published negative comment in the registry, because the

6 way it reads right now, if you abstain, you have no

7 right to -- if the rest of -- no one else votes against

8 it, and you abstain, you have no right to come back

9 with any comment period -- in the comment period.

10 MS. MEYERS: You know, I just think the

11 underlying issue in all of this is the timeframe. This

12 is a big thing to get done in four months, so -- or by

13 August 30th. So I think that's, at least from my point

14 of view, I mean, we are going to be tackling a lot of

15 stuff quickly. And, you know, hopefully we will have

16 considered everything that we need to consider. But

17 it's a big deal, and something could slip through.

18 That's my concern about this is we are really rushing

19 this.

20 MR. EISNER: That is --

21 MS. MEYERS: It's a very complex issue.

22 MR. EISNER: -- a legitimate concern.
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1 MS. MEYERS: And we're rushing it.

2 MR. EISNER: Harvey?

3 MR. SACHS: Harvey Sachs. I'm not guilty of

4 even thinking I understand law. But as a layman, when

5 I read C in its entirety, I get the sense -- and this

6 is really a question for the lawyers -- that this is

7 pablum that has no standing that lawyers could have a

8 full employment act -- argument about whether a comment

9 had the same substance and effect as the term sheet for

10 years and years. I don't see how there is anything

11 enforceable or meaningful in C. Please help me

12 understand that I'm wrong.

13 MR. EISNER: I think, again, based on my

14 experience, not particular to any agency, that it is

15 not a matter of we're going to go in court and sue you,

16 because you couldn't file a comment. The agency

17 doesn't have the legal authority to keep it out of the

18 docket, in my opinion. It is more a matter of good

19 faith.

20 We came and we sat and we negotiated for

21 three or four hard months. And then you submitted

22 comments contrary to what you said in the meetings.
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1 Yes, I think this is a very valid point. We all feel

2 like we are being a little bit rushed here, and we

3 don't know everything that we might learn later on.

4 But part of it is -- and it would be a

5 balance on the part of the agencies based on what I've

6 heard in the past. They said they were coming there to

7 negotiate. They felt that they could do it. They were

8 aware of the deadlines. So, again, you are balancing

9 things. It doesn't affect the outcome of these

10 negotiations. It doesn't affect what the agency can or

11 cannot do legally necessarily. But it does affect a

12 feeling of we thought we were all working together to

13 develop a solution.

14 MR. SACHS: So it seems to me -- this is

15 Harvey again -- that this could be framed in a way that

16 doesn't feel quite so much in terms legal, because,

17 after all, any one of the parties could get a colleague

18 in the same industry in another firm to file comments.

19 I mean, there are just so many workarounds that it just

20 doesn't seem to have any meaning except to say we are

21 using good faith and we'll do our best to stick with

22 the commitments we've made.
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1 MR. EISNER: Yeah. And, again, on the

2 interest group concept, you don't even know who

3 everybody is that's a member of an interest group. But

4 you do know that, hey, you were representing that

5 interest group and somebody in that interest group

6 filed negative comments. It is --

7 MR. SACHS: I'm doing my best to represent

8 their interests.

9 MR. EISNER: Yeah. But that's a problem

10 sometimes within the industry in terms of working

11 things out. Again, it's a subtle thing, just like so

12 much of this is. It's very, very subtle. It's

13 feelings that are hurt, things like that, that cause

14 people to say, "I don't want to negotiate anymore with

15 this interest group."

16 Let me give a chance for Louis Starr to

17 speak. He said -- he passed a note that he wanted to

18 speak. You're on the phone? Louis?

19 MR. STARR: Okay. Are you there?

20 MR. EISNER: Yes. We can hear you.

21 MR. STARR: I just wanted to address the

22 issue of the alternates. The problem with the
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1 alternates is is that the people that are on the

2 Committee have been vetted and have a certain

3 knowledge. And I think some of the problems that arose

4 previously is that they were sending people that were

5 maybe not aware of the issues and the negotiations that

6 were going on, and so you'd have a number of people

7 that spent a lot of time, and then a replacement would

8 come up that really knew nothing about the issues. So

9 that was one of the other items.

10 The people on the Committee I assume were

11 selected on the Committee, and so you're not really

12 getting a seat at the table. You're being selected at

13 the Committee to provide information or expertise. And

14 so I think I wanted that --

15 MR. EISNER: Would you be satisfied --

16 MR. STARR: -- maybe the alternates possibly

17 could be okay, but the part about -- or what?

18 MR. EISNER: Louis, would you be okay with

19 adding something to 2D along the lines of "In order for

20 an alternate to be able to vote" --

21 MR. STARR: Oh. Yeah. No alternates and no

22 voting privileges.
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1 MR. EISNER: Well, no. But because some

2 alternates might be very well briefed, might come to

3 all of the meetings, would you want to make some --

4 would you be willing to live with some language that

5 might allow them to vote on the agreement of the member

6 that he is insured?

7 MR. STARR: Yeah. I guess that would be --

8 MR. EISNER: Go ahead.

9 MR. STARR: Yeah. That would be fine. What

10 I would like to say, too, is that we also not have a

11 rotating list of alternates. I mean, I don't know,

12 maybe -- I mean, are we going to, you know, amend --

13 someone could have like 15 different products. Does

14 that mean we are going to have an alternate each time

15 there is a different product? I mean, maybe that's

16 okay, but there's just, you know, a general position of

17 a given group that is consistent across all of them.

18 And so it seems like it would make it a little bit

19 tricky.

20 But anyway, that is just my concern. I know

21 you all will figure out what the -- what would make

22 sense.
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1 MR. EISNER: Why don't we go back to the

2 issue we were on, and then we can refocus on this

3 issue. Any other thoughts on how to handle the adverse

4 comments? Do we want to take it out completely? Do we

5 want to modify it?

6 MR. SACHS: Did he ask who plans to have

7 alternates?

8 MR. EISNER: No. I want to go back to

9 alternates. I didn't know his question was going to be

10 on -- I should have assumed that, but I didn't know it

11 was going to be on the alternates. So I want to finish

12 this before we forget where we were.

13 MS. BARHYDT: From the rulemaking

14 perspective, if we come to an agreement -- and let's

15 say best case scenario we have unanimous consensus vote

16 that everybody can live with, and that goes up to the

17 ASRAC and then it ends up at DOE, and we publish a

18 Notice of Proposed Rulemaking. That is exactly what

19 everybody sitting at this table agreed to, and we get

20 adverse comments from every single person sitting at

21 the table.

22 Then, we are in a really bad position on --
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1 we thought everybody had agreed to this, and we have a

2 stack of comments that we have to respond to. And it

3 puts us in a very difficult position on going forward,

4 and so I think that's the idea is that if we take the

5 vote and we meet the definition of "consensus," then

6 our expectation is that everybody can live with what

7 was sent forward.

8 And so our expectation is that we understand

9 that individual people may not have liked this

10 particular aspect or that particular aspect, but they

11 have already voted and said, "I can live with that."

12 And if we get a lot of adverse comments, then we have

13 to actually address all of those individually, like a

14 normal rulemaking, and it is going to slow down that

15 process that we are trying to get this rule out and

16 actually end up with a better rule at the end.

17 MR. EISNER: Reactions? Comments?

18 MR. AMRANE: Karim Amrane, AHRI. What will

19 happen if you don't have unanimity? I mean, so anybody

20 is free to file comments or only those who voted no? I

21 mean --

22 MR. EISNER: Well, even those who voted no I
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1 think by this language would be precluded, because

2 their comments are already reflected in the

3 justification for voting no, which DOE has said they

4 will publish in the preamble. So I voted no, because I

5 thought this was too costly, and that's the comment

6 they want to submit. Well, that comment is already in

7 the record in the preamble.

8 MS. BARHYDT: I don't think the language that

9 is there right now says that. I think that that would

10 be one possible way of going forward for this workgroup

11 is to say that because DOE has committed to publishing

12 all of the dissenting views in the rulemaking, and

13 possibly even providing alternatives in the proposed

14 rulemaking, that the members of the workgroup agree not

15 to file negative comments, because their views have

16 already been reflected within the context of that

17 rulemaking.

18 MR. BALLO: This is Tim Ballo with

19 Earthjustice. I have a concern about that from an

20 exhaustion standpoint as to whether a court, if we did

21 end up litigating over the outcome of the final rule,

22 would regard the publishing of our statement of
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1 opposition to the term sheet as sufficiently exhausting

2 the raising of the issue during the rulemaking.

3 So I wouldn't agree to say that that

4 publishing of our statement of dissent would eliminate

5 the right to comment.

6 MR. EISNER: I don't think anybody is talking

7 about the right to comment. You always have a right to

8 comment. The agency can't take it away from you. And

9 remember, again, we can't focus on the agency. If you

10 file, you vote for something, somebody else around the

11 table, not DOE, makes a negative comment on it, and the

12 consensus is let's recommend it, we've got enough votes

13 to recommend it, that person's negative view is

14 reflected in the preamble. Is that sufficient? Or is

15 it okay to let them file more negative comments?

16 It's not -- don't focus just on DOE.

17 Somebody else can vote negative. No, it -- we have

18 agreed consensus won't be unanimous. That's the old

19 language I think. It should be consensus. They only -

20 - the only changes were made to B. I don't think C has

21 been changed at all.

22 MS. MEYERS: In the event of a consensus
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1 recommendation to the ASRAC -- actually, I was going to

2 use that clause to replace that sentence. People can

3 read that and see what they think.

4 MR. BALLO: This is Tim. That's the same

5 concern I was just addressing. If I had an objection

6 and voted against something, I would want to renew

7 those objections on the proposed rule, just for the --

8 you know, for the certainty.

9 MR. MYERS: Could you repeat that, please? I

10 couldn't understand that.

11 MR. BALLO: So there is a requirement in

12 administrative law that if a party is going to

13 challenge a final rule that it had to raise the

14 objections to the final rule during the rulemaking. It

15 is not -- I haven't researched this, but it is not

16 clear to me that just having the reproduced dissenting

17 views in the proposed rule and not filing additional

18 comments to renew those objections would satisfy that.

19 MR. EISNER: Charlie?

20 MR. HON: Charlie Hon. My concern would be

21 that I would vote against something, and I would

22 develop more information to justify my position and
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1 make it much clearer for my objection. And I could

2 submit it in writing with a lot more factual reasoning

3 behind it than just voting no and a couple of comments

4 from a Committee member.

5 I think you could clarify it in a much more

6 concise and accurate way in writing if you had voted

7 against it in the first place.

8 MR. EISNER: Okay. It doesn't appear we are

9 getting anywhere near consensus on this, so I would

10 suggest we consider whether we want to take this --

11 these two lines out of here, three lines.

12 MS. BARHYDT: Another possibility would be to

13 say that each party agrees not to file negative

14 comments except to the extent that they have already

15 raised an objection, so that people don't raise new

16 objections and file new comments that were not

17 discussed and negotiated as part of the workgroup.

18 MR. EISNER: Thoughts? Okay.

19 MR. SHEBIK: Ron Shebik with Hussmann

20 Corporation. C, D, and E, I'm looking at these items,

21 and, you know, several people here have expressed the

22 fact that we only have 120 days to come up with some
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1 kind of solution here. Do we need C, D, and E, even to

2 be in this?

3 I mean, we are all working our good faith to

4 come up with a solution to resolve the problems that we

5 have, and we're spending a lot of time talking about

6 these items. I mean, I'm not trying to be a negative

7 person here, but, I mean, we've spent a lot of time

8 here. I mean, we're all working in good faith to come

9 up towards a solution, and we are not getting anywhere

10 on this.

11 I mean, do we -- is this -- so I guess my

12 question is, is this absolutely necessary, to have this

13 in there?

14 MR. EISNER: Nothing is absolutely necessary.

15 You can have more rules, you can have fewer rules.

16 What will lead to better decisionmaking, faster

17 decisionmaking, when you've got ground rules? The very

18 fact that you're objecting to some of them indicates

19 that they do have an effect on how you negotiate.

20 So, but we -- you know, we can agree to take

21 off -- I would assume you would want to take out the no

22 challenge also.
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1 MR. SHEBIK: Uh-huh. That would be my

2 suggestion for that.

3 MR. EISNER: If that's what the consensus --

4 MR. SHEBIK: One hundred twenty days is not a

5 lot of time to get things done, and we're going to

6 spend a lot of time debating what if we don't like what

7 we said back in June, so we want to change what we say

8 in July.

9 MR. EISNER: But what you put in now will

10 affect the way people will negotiate.

11 MR. SHEBIK: I understand.

12 MR. EISNER: So that may make it harder to

13 get consensus in the short period of time. Those are

14 the things you have to weigh and balance.

15 We also are taking another hour on this.

16 We've got scope, which we may not be able to finish

17 today, and we've got to set a schedule for future

18 meetings. So we may want to put the rest of these

19 discussions off on the ground rules, start talking

20 about scope, and then agree to have either a phone

21 conference call or some other means of communicating

22 with each other on the rest of the ground rules.
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1 I understand and hear all of your concerns

2 about time, and I think they are serious. And the good

3 faith arguments. But you have to understand that

4 people are affected by the different ground rules, and

5 what they're giving up and what they're getting, and

6 not just -- not giving up in a legal sense, but giving

7 up in a good faith sense. "I won't do this if you'll

8 do that" kind of a thing, and it will affect the way

9 people negotiate.

10 MR. MYERS: I concur with the thought of

11 postponing this, but I might recommend that all of the

12 members take a look at the balance of the items and

13 write out suggestions, so that they can be brought up

14 at the next conference call or the next meeting, so

15 that perhaps we will have some solutions in hand as

16 opposed to trying to craft solutions during the

17 meeting.

18 MR. EISNER: And if we can handle scope in 25

19 minutes, we can come back to this, then.

20 So, all right, let's go to scope. Let me ask

21 Laura to start off.

22 MR. DOPPEL: Before we go to that, there is
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1 Item Number 5, I think we need to address.

2 MR. EISNER: Item Number 5 on?

3 MR. DOPPEL: Facilitator.

4 MR. EISNER: Well, there's more than -- there

5 is five. I guess you have to approve my being a

6 facilitator, essentially.

7 MR. DOPPEL: That's my --

8 MR. EISNER: But there's also meetings. I

9 wasn't talking about going over the -- we can go over

10 these last sections if you want and just come back to

11 Section 4, if we think we can get it done quickly. But

12 we do have -- we also have to set a schedule for the

13 meetings that are just -- six is just talking about the

14 requirements for meeting summaries and things. So it

15 might be easy, and let's try to do that.

16 Five is facilitator. The very fact that I am

17 here, if you don't have to have a facilitator, you can

18 decide that. But the facilitator will work with the

19 parties to ensure the process runs smoothly, serve at

20 the will of the Committee. So you guys can fire me.

21 MR. DOPPEL: I just want to acknowledge I

22 appreciate the job you're doing so far.
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1 MR. EISNER: Thank you.

2 MR. SACHS: I wouldn't go that far, but I

3 would --

4 MR. EISNER: I'll remember that.

5 MR. CYMBALSKY: You can't even get consensus

6 on that.

7 You're doing fine, but I really wanted to ask

8 --

9 MR. EISNER: I see the smile on his face; you

10 don't.

11 MR. CYMBALSKY: They never see anything but

12 my back. The question is just whether "the Committee"

13 means ASRAC or this working group?

14 MR. EISNER: We changed the wording there.

15 MR. CYMBALSKY: Ah, okay. Thank you. Carry

16 on, sir. Thank you.

17 MR. EISNER: Okay. Number 6, the meetings.

18 The one thing that I -- Dan told me has to be changed,

19 in A, there was a mistake. There is no DOE policy,

20 right? So it would be just the Federal Advisory

21 Committee Act and the Negotiated Rulemaking Act would

22 be discussed there. Anybody have a problem with that?
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1 Okay. B is open meetings. We have already

2 talked a little bit about this. They are announced in

3 the Federal Register prior to the meeting and will be

4 open to the public. We've about subgroups, which are

5 not subject to a requirement that they be announced in

6 the Federal Register but DOE is going to look into ways

7 to get notice out on that. Is everybody happy with --

8 okay with B?

9 All right. And then the last thing is --

10 under Meetings is meeting summaries. It's a

11 requirement to produce a record of what we've agreed

12 to. There's a Court Reporter who will come out with a

13 typewritten summary. The agency is required, under

14 Federal Advisory Committee Act requirements, to do a

15 summary of each meeting. It is also helpful I think to

16 the participants in the meeting.

17 Anybody have any objections to that?

18 Charlie?

19 MR. HON: Can I ask the DOE to send out the

20 document there on the screen in advance, so we have

21 that available to us to work on our comments?

22 MR. EISNER: You're talking about the working
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1 group --

2 MR. HON: Yes.

3 MR. EISNER: -- procedures? Yes.

4 MR. HON: Yes.

5 MR. EISNER: I don't think that's a problem.

6 And then, finally, one other one we talked

7 about earlier was the Committee members may propose

8 modifications at any time during any of the meetings if

9 they want.

10 MR. BALLO: I actually had something on

11 C. This is Tim Ballo. In the Transformers reg neg, we

12 had an issue with the availability of transcripts, and

13 the whole process I think concluded before we got to

14 see a lot of the transcripts. And it would have been

15 helpful to have those to refer back to, and even later

16 during the comments on the proposed rule that came out

17 So I'm wondering if we need to put something in here

18 that the transcripts and other materials generated

19 during the working group sessions will be either made

20 available to the working group members or posted in the

21 docket for the rulemaking. But, you know, there was a

22 lot of material that was generated in the Transformers
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1 negotiations that just disappeared kind of. I never

2 saw it again.

3 MR. EISNER: Do you want to address that,

4 Laura, or Dan?

5 MR. COHEN: I'm sorry. We were doing a

6 technical fix, so I didn't hear the question.

7 MS. ARMSTRONG: He said that there is stuff

8 that was missing from the docket, or the transcripts

9 weren't put up in a timely manner, so if this is going

10 to move at a fast pace, we will need to provide all of

11 the materials in advance of the next meeting.

12 MR. COHEN: We will do our best to do what we

13 can. It takes the court reporter some period of time

14 to put together the transcript, and then errors and

15 omissions have to be worked through.

16 MR. BALLO: I guess my concern is that they -

17 - the material will eventually find its way into the

18 docket, because that wasn't -- that didn't happen with

19 Transformers. There were some, you know, scattered

20 minutes and transcripts, but we didn't have everything

21 from every meeting. Unless some transcripts just

22 weren't ever prepared. That I don't know.
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1 MR. COHEN: So I thought we went through --

2 we went through that SharePoint site item by item by

3 item and --

4 MR. BALLO: Yes. The SharePoint stuff all

5 got on, but not everything got into SharePoint.

6 MR. COHEN: Well, I'd be curious what that

7 was, actually. I'd be happy to -- we'd be happy to

8 supplement that docket, if you can point out -- I'm not

9 sure there is any document that exists that is not in

10 that docket.

11 MR. CYMBALSKY: I know the webinar

12 transcripts were a little more difficult, but I think

13 eventually we got everything. It took time. It took

14 some time.

15 MR. EISNER: Okay.

16 MS. MEYERS: Well, so these meeting

17 summaries, which are I think a little bit different

18 than the transcripts, can we get an agreement from the

19 facilitator who is to produce these that, you know, we

20 have these within, you know, five or 10 business days

21 after the end of the meeting? I mean --

22 MR. EISNER: Yeah. I think there is some set
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1 date which I'm supposed to get them done. I have to

2 get -- but I have to get something from the Court

3 Reporter probably to go through, or somebody goes

4 through. Yeah. We'll make every effort to get them out

5 as quickly as we can. If we don't get them out quick

6 enough this time, we'll set a standard for doing that.

7 Okay. Everybody all right with everything

8 except parts of six?

9 All right. And we can get out a corrected

10 version of this document, except for everything that

11 was in 6C through F. And if we have time at the end of

12 this meeting, we'll go back. Ever the optimist.

13 MR. SACHS: Neil, this is Harvey. And I just

14 -- I'm looking for a little clarification. Line 1, the

15 proceedings will not be electronically recorded, but

16 summaries will be prepared. And yet we're having

17 discussions about the transcripts.

18 MR. EISNER: Yeah. And I don't know if the

19 transcripts are in a form, the way they're kept.

20 MS. ARMSTRONG: So typically the way this

21 works is that we have a transcript within about a week

22 of the meeting. So if you guys plan to meet on a
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1 weekly basis, it is probably not reasonable to think

2 that DOE is going to have a transcript ready for you

3 prior to the meeting every single time. If you guys

4 plan to meet on a biweekly basis, then I think it is

5 fair to say we will do our best to have the transcript

6 and a summary available to you to help you with your

7 next meeting.

8 So a lot of this depends on the meeting

9 schedule or the frequency in which you have calls or

10 in- person meetings or that kind of stuff in terms of

11 what you need. But I think the Department will commit

12 to turning things around as quickly as possible. Even

13 if we can post the transcript, you know, Neil might

14 need a couple days subsequent to that to pull together

15 his summary and everything else. But we post them as

16 soon as they are available.

17 MR. EISNER: I think Harvey was asking also

18 about the electronic record.

19 MR. SACHS: So I am to read Line 1 as saying,

20 "The proceedings will be electronically recorded, and

21 summaries of Committee meetings will be prepared."

22 MR. COHEN: No, that's not -- what we were
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1 trying to get at there is we are not going to have an

2 audio recording of the meetings.

3 MR. EISEN: I think she is taking the

4 equivalent of a transcriber's notes.

5 MR. COHEN: Yes, she is taking -- right. She

6 is transcribing everything that is being said, and we

7 are going to have what is effectively a written record.

8 MR. SACHS: Thank you, Dan.

9 MR. EISNER: All right. That takes us to a

10 discussion of the rulemaking objective, the scope of

11 the negotiations. We do want to leave time also for

12 the schedule, for at least the next meeting, how we're

13 going to do that.

14 But let me ask Laura to open up the scope by

15 telling us what she thinks the scope was intended to

16 be, also what is your objective, what you would like to

17 see come out of this in terms of scope.

18 MS. BARHYDT: So I think everyone knows that

19 the impetus for this was that the Department adopted

20 certification regulations in 2011 for these products,

21 and at the time our intent was to refer the current

22 practice of industry. Our expectation was that it was
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1 not going to create an undue burden. It was not going

2 to dramatically affect current processes.

3 We heard overwhelmingly after we issued the

4 final rule that that was not the case, that in fact it

5 had a dramatic effect on industry, and so our goal is

6 to come up with a regulatory framework that will allow

7 us to ensure that products are being tested, or through

8 an alternative efficiency determination method have the

9 efficiency determined.

10 And I know that there is an open AEDM rule

11 right now, to take those values, have the manufacturers

12 certify to the Department that their products are

13 compliant, and to have that information provided to the

14 Department in a way that we can tie it back to specific

15 products and be able to verify that the representations

16 are accurate.

17 So, in short, that is really all we are

18 looking for, and we are open to discussions on just

19 about any aspect of how to actually achieve that goal.

20 MR. EISNER: Comments? Concerns? Questions?

21 MS. HOOTMAN: Jill Hootman, Trane. One thing

22 you didn't say in there was enforcement. I believe it
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1 is included in the regulation, so I would encourage

2 that we need to also look in the scope around

3 enforcement, especially a process.

4 MR. EISNER: Could you elaborate on what you

5 mean by "enforcement"?

6 MS. HOOTMAN: The Department testing our

7 units, us having no presence at that testing, plus

8 having no record of what -- how that process will even

9 happen, what will happen in that process. There is

10 nothing in the law that says that.

11 MS. BARHYDT: So I'm not entirely sure what

12 you mean. We do have procedural regulations that lay

13 out the enforcement process. It lays out the standards

14 by which the Department will test units. Obviously,

15 they are tested in accordance with the test procedures,

16 and there are statistical formulas in the regulations

17 as to the number of units we have to test, how we

18 determine compliance.

19 The regulations lay out the process for us to

20 select units. It lays out a process for us to have

21 discussions with the manufacturer. It lays out the

22 process for when we do make a determination of non-
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1 compliance, and it lays out a process for civil penalty

2 action.

3 So I'm not sure which part of the problem you

4 feel like is not adequately covered by the existing

5 regulations. I don't think that our understanding up

6 to this point has been that there was an issue with

7 those regulations. Our understanding was that it was

8 primarily on the testing, the groupings of models for

9 what has to be tested, and then for the actual

10 certification of compliance and the data that had to be

11 provided. This is the first I've heard that there is a

12 concern with what the process is for enforcement.

13 MS. HOOTMAN: This is Jill again from Trane.

14 Specifically, one of the areas we cannot witness, we

15 cannot be there to witness that piece of equipment

16 being tested, so that we do not know that it in fact

17 was tested correctly, and that the unit was functioning

18 correctly.

19 There are some very sophisticated controls in

20 these units, and when we go through certification

21 throughout obviously in other -- our industry program,

22 we know for a fact that there are many times they are
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1 not tested correctly.

2 MR. EISNER: Is there a reason why they can't

3 witness the testing?

4 MS. BARHYDT: The largest issue is that the

5 Department cannot travel sufficiently for us to always

6 provide a DOE Representative, and we're not comfortable

7 having the manufacturer there without a DOE

8 Representative at the test lab. We do have a great

9 deal of confidence in our test lab's ability to conduct

10 the testing, in accordance with the DOE test procedure,

11 and we're not comfortable with having the manufacturer

12 there if DOE is not there, as well.

13 MR. EISNER: Is there a way for you to find a

14 way for this issue to be addressed?

15 MS. HOOTMAN: Acceptance of a voluntary

16 Industry Certification program, such as AHRI.

17 MS. BARHYDT: For enforcement purposes?

18 MS. HOOTMAN: Yes. It's possible.

19 MR. EISNER: You know, I think, as I

20 understand these issues, we're getting to the point

21 where maybe we're going to work out the rule before we

22 work out the issues.
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1 MS. BARHYDT: Right. Right.

2 MR. EISNER: Is there a way that you can

3 express the objective, the scope, that will capture her

4 concern? Jill's concern?

5 MS. ARMSTRONG: Well, I'm trying to run a

6 list of what I hear on (inaudible).

7 MR. BAUMAN: This is Jeff Bauman from

8 National. I guess the question just within the scope,

9 is talking about enforcement testing, how it's going to

10 be. Is that something it can be within the scope, or

11 is that already settled, as the DOE goes, a settled

12 issue? Is that something we can talk about, later?

13 MS. ARMSTRONG: Can I just ask a question?

14 Laura can chime in on. Is that something you want to

15 focus on, if you have 120 days, to get to a deadline,

16 for your certification issue?

17 MR. AMRANE: Well, if you don't have enough

18 foot time, then we should make the time.

19 MS. ARMSTRONG: I'm not saying that it's off

20 the table, Karim. I'm not saying that that's not a

21 secondary issue, or could be considered as part of the

22 Committee Meeting. That's totally up to you. But I'm
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1 saying, should that be your primary focus, for the 120

2 days, when your December 31st deadline really gets too

3 --

4 MR. EISNER: Does that issue --

5 MS. ARMSTRONG: It doesn't mean it shouldn't

6 be in scope, about --

7 MR. EISNER: In order for the rules to go

8 into effect, they're supposed to go into effect, does

9 that issue have to be resolved now? Or can the

10 Committee put something in with, what they agreed to,

11 that would force this issue to be resolved, before it

12 becomes a problem? Everybody understand what I'm

13 saying?

14 MS. ARMSTRONG: Not really.

15 MR. SACHS: I think -- if I could. I think

16 Ashley has started something really good, that we ought

17 to list all the significant issues, before we start

18 worrying about which ones are primary and which ones

19 are secondary. I'd make that recommendation, if I

20 could. I'm seeing Ashley, at least, nod "yes."

21 Everybody else nod "yes"?

22 MS. BARHYDT: So my other question is are
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1 there other aspects of enforcement testing, besides

2 being able to witness the tests?

3 MR. AMRANE: Yes. Sampling.

4 MS. ARMSTRONG: Sampling. Yeah. Sample size

5 for just enforcement, or sample size for --

6 MR. AMRANE: For both. For both.

7 MS. HOOTMAN: For both certifications.

8 MS. ARMSTRONG: Okay. I just want to make

9 sure I capture. Go ahead.

10 MR. MOLVIE: This is Peter Molvie with

11 Cleaver-Brooks. We have an issue, I guess it would be

12 relative to both certification and enforcement, with

13 the test procedures that are specified for testing

14 boilers. That being BTS2000. The boilers that we

15 manufacturer, they're a steam boiler, are designed for

16 heating purposes, to operate at 10psi. The BTS2000

17 mandates that the test be performed at between 0-2psi.

18 We cannot physical perform a steam boiler test, and

19 achieve full capacity under those conditions. So

20 that's an issue for us.

21 The same thing is true for hot water boilers,

22 with a specified return temperature of 85 degrees
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1 Fahrenheit. It was tested in our lab. Our cooling

2 tower doesn't have the capacity to enable us to perform

3 the test under those conditions.

4 MR. EISNER: You're talking about testing

5 conditions?

6 MR. MOLVIE: Yes. The actual test

7 conditions, under which the tests are performed.

8 That's an issue for us.

9 MS. BARHYDT: I do have a request on that

10 front. The actual test procedures, I don't think are

11 going to be within the scope of this. To the extent

12 that you can separate those two issues, and think to

13 yourself, "If I had a test procedure that would work

14 for my products, how would I want this to work?" And

15 if we can do this rulemaking in that context. And then

16 as a separate matter, the Department will look at the

17 test procedures.

18 MS. ARMSTRONG: We are looking at the test

19 procedures for those right now. So that's not going to

20 -- the actual modification to the test procedures will

21 not be within the scope of this.

22 MS. MEYERS: Ashley, I'd add AEDM up there.
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1 MS. ARMSTRONG: Okay. What aspects of it,

2 specifically?

3 MR. EISNER: Substantiation.

4 MR. HATZIKAZAKIS: May I ask a question:

5 MS. ARMSTRONG: Sure.

6 MR. HATZIKAZAKIS: We don't talk about any

7 items here, about cost. But I don't know the answer to

8 this one. When you select units, one of the many items

9 there, who pays for them? Do we pays or --

10 MS. BARHYDT: So under current DOE

11 regulations, and under the authorizing statute, the way

12 it's set up is the Department must have reason to

13 believe that a model is, the effacing model is

14 noncompliant. So there has to be some initial

15 information for the Department to make that

16 determination. Once we have that determined that --

17 well, not determined. But once we have reason to

18 believe that a product is noncompliant, it is required

19 by law that the manufacturer provide the units to the

20 Department, at the manufacturer's expense. The

21 Department pays for the testing. So that's the split.

22 Is the manufacturer provides the units for testing, and
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1 the Department pays for the actual tests.

2 MR. HATZIKAZAKIS: And the suspicion of not

3 meeting the rating comes from?

4 MS. BARHYDT: It can come from a variety of

5 sources. To date, most of it has come from

6 Departmental testing, where we have actually bought a

7 unit. And then we send it off to the test lab, and we

8 have it tested, ourselves.

9 MR. HATZIKAZAKIS: So in other words, in

10 general, even above this meeting, all the OEMs for --

11 I'm talking commercial air conditioners -- we spend a

12 lot of money doing our own testing because of

13 (inaudible). And the other one is that you spend

14 money, DOE does, and maybe we have to spend additional

15 money. I think I described it well? Or accurately?

16 Everybody's laughing, that's good. Okay.

17 My point is, I like the items being on there,

18 because -- the bottom line to me is -- and you started

19 your conversation that way. There is a lot of testing

20 happening, and we know it happens, because my budget is

21 hit, every year with it. So that's number one.

22 And then the other one is, we cannot -- some
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1 of these items are already happening in another

2 territory, let's say. So we do share experience. My

3 question would be, how can be harmonize the two,

4 finding solutions for the items here, by knowing what's

5 happening already on our testing? And I'm not

6 proposing anything. It's just logic. As an engineer,

7 I'm saying, what is it, on the table today, happening

8 as experience, and how can we use that experience to

9 solve what we put on the table? Okay? Thank you.

10 MR. EISNER: Geoffrey Halley is on the phone

11 and wants to speak. Geoffrey?

12 MR. HALLEY: Yes, although I'm an independent

13 consultant, I actually am representing the American

14 Boiler Manufacturers Association, in this group. I'd

15 like to sort of echo Pete Molvie's comments. There are

16 basically two groupings, I see, within the boiler

17 industry. Those are the ones that are represented by

18 HRI, which are the small end, if you like of the

19 spectrum. The ABMA membership is sort of a larger type

20 of unit, typically. I echo him, in that probably no

21 boiler manufacturer has got the capability of testing

22 the larger boilers in their facility. The company I
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1 used to work for had that capability, at one time.

2 The testing labs that are available, I'm

3 pretty certain, don't have the capability, either, of

4 testing some of the larger units. It would seem to me

5 that the only method of testing some of these units is

6 actually in the field after an order's been taken.

7 That's got its own potential pitfalls. That's a big

8 problem, in my opinion. It's a big problem between the

9 smaller group and the larger manufacturers. You know,

10 we're talking some commercial units that could be

11 25,000,000BTU input, for as far as ABMA is concerned,

12 and very few people have that capability.

13 Pete mentioned the AHRI test grid, which,

14 from an ABMA point of view, particularly with FI2 point

15 boilers, and yet you're using a very low return

16 temperature on hot water boilers, which is not

17 conducive to longevity with FI2 boiler. You don't have

18 the pressure capability, or the full capability for

19 either fuels or working fluids. So I see some --

20 that's the big problem I see, in the boiler area. I

21 don't know whether Pete wants to follow on, on that or

22 not.
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1 The other problem with ABMA membership is

2 that they have a line, so they total boiler line that's

3 advertised. Maybe as many as 96 boilers, when you look

4 at working pressures, working fluids and size. It's

5 more of a custom-built segment of the market then the

6 smaller group -- the smaller size group, I should say.

7 You're got a group, where there's a range of sizes or

8 capacities. They may never build a certain size within

9 that group. You know, until it's order. They tend to

10 have a standard product line offered, but then that

11 line is customized. Whereas, it's not as standardized

12 as the AHRI group, I don't think. Obviously, we're

13 probably more sensitive to the missions requirements,

14 dependent on whether you want more knots, or low knots,

15 and that sort of thing. That can impact on

16 efficiencies.

17 MR. EISNER: Peter?

18 MR. HALLEY: I'd just like to throw that one

19 out as a bit of a ringer, if you like.

20 MR. MOLVIE: Yeah. I pretty much agree with

21 everything that Geoffrey is saying. Maybe it gets back

22 to some of the initial points that are in the Federal
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1 Registers, as far as how we're going to be grouping

2 models for purposes of certification. When we're

3 talking about some of the larger commercial boilers, I

4 mean, if you want to test every single size that might

5 be in a basic product model line, you're talking

6 millions and millions of dollars to produce those

7 boilers, to be able to test them.

8 Certainly, for my company, Cleaver-Brooks, we

9 have existing test data. When we develop these

10 boilers, we do a complete efficiency testing of the

11 whole line, and have data to back that up. It's not

12 strictly -- it's certainly not in accordance with the

13 BTS2000 and there maybe some other slight

14 modifications, even if you're talking about a Power

15 Test Code Efficiency Test. Instead of, for example,

16 making a grid temperature measurement of the flow gas,

17 we would typically make a single-point measurement. So

18 there's some differences there, in the procedures, that

19 -- I just can't imagine that there's any value,

20 particularly for certification. For demonstration, if

21 you're actually checking to see if the certified

22 efficiency is correct, you may necessarily have to do a
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1 single test. But to redo a whole history of efficiency

2 testing that was done during the product development,

3 for certification purposes, seems to me to be a bit of

4 an overkill. I really think there seems to be some

5 sort of words in the statutes or any rules that we

6 propose that would allow, for certification purposes, a

7 manufacturer to use their historical product

8 development efficiency testing data for the purposes of

9 certification.

10 MR. EISNER: Getting back to scope, are we

11 talking substance, a little bit? Are we talking scope

12 a little bit too much. We're getting a bunch of issues

13 up here.

14 MS. BARHYDT: One issue that the gentlemen on

15 the phone mentioned, and I know we've heard from other

16 people. Ashley has up there, "Certification. What

17 gets submitted? How often? By whom?" And I know one

18 of the other issues we've heard about is "When?"

19 Meaning is it when the product is being developed? Is

20 it before it's sold? Is it before it's advertised? So

21 the timing issue, in terms of when the certification is

22 required, I know is another issue we've heard about.
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1 MR. EISNER: Are there more issues that

2 should be on the table? Yes?

3 MR. AMRANE: Karim Amrane, AHRI. I would

4 like to add the role of furniture industry

5 certification programs.

6 MS. ARMSTRONG: Yes. I got it. I'll get

7 there.

8 MS. MEYERS: I'd also like to add, in

9 addition to ADM substantiation, AM definition? And I

10 would also like to add, as part of the scope, the

11 effective date of the commercial certification rules,

12 which are the end of this year.

13 MR. EISNER: I'll suggest we throw in Product

14 Class Definition.

15 MS. MEYERS: I thought she had that, but

16 maybe not.

17 MS. ARMSTRONG: What do you mean by that?

18 MR. AMRANE: For us? The term "product

19 class" is used several times in regulations. And I

20 would just like to specifically know what's meant by

21 "product class"? Because in the -- for example, on

22 Tables 10 C.F.R. 431, it says there's a level for each
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1 product class. And in the discussion of AEDM, it says

2 that you have to choose certain models from certain

3 product classes.

4 MS. BARHYDT: So is that an issue only within

5 the context of the proposed ADM Rule? Or is that an

6 issue more broadly? I just want to make sure that -- I

7 know that that issue came up in the context of the ADM

8 Rule, and I'm not sure whether that issue was triggered

9 by the proposed language in the ADM Rule, or if that is

10 an issue that is more broadly --

11 MR. EISNER: I think "product class" is used

12 elsewhere, besides the AEDM, but I can't think of where

13 right now.

14 MS. ARMSTRONG: This is Ashley from DOE. I

15 was told I can't be heard, so hopefully I can be heard

16 this time. I think the issue of product cost, in terms

17 of AEDM substantiation, what you have to test, from

18 what groups you have to test, that kind of stuff. It

19 is well within the scope of this. In terms of product

20 classes and what standards apply -- because that's how

21 we link them? That's to terminate the Standards Rule,

22 and we don't want to go there. Right? I've grouped it
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1 in here with AEDM, just for my list in terms of what

2 gets tested. That's kind of how. But that's

3 definitely in the realm, kind of thing. We define them

4 in the Standard Rules, which I think that part would be

5 off the table.

6 MR. EISNER: Let me give a chance for Robert

7 Whitewell, on the line, to speak?

8 MR. WHITEWELL: Yes. Thank you. This is

9 Robert Whitewell from UTC TSNS.

10 A couple other items that I think we need to

11 include. One is treatment of energy-saving features,

12 not included in the current energy metrics. For

13 example, for economizers, energy recovery ventilators

14 and such. Also, there was already some discussion

15 about the data submission and when it should be

16 submitted. But in addition to that, we have an issue

17 where we have products that are available, that

18 customers can order, but there would be -- the majority

19 of those never get ordered. The question is, do we

20 need to submit millions of possible basic models

21 upfront, or do we just submit basic models that

22 actually get ordered? I think, somehow, we need to get
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1 that on the table.

2 Then a third item is related to rating

3 calculations. In the event that ratings are not

4 established via the AEDM, there's a minimum of 2 units

5 required for test; and then there's a statistical

6 calculation that's run on those.

7 For commercial HVAC equipment, the DOE is

8 requiring a 95% confidence limit for commercial

9 products. Whereas, for residential HVAC, it's 90%. And

10 the difference between why commercial is 95 versus 90

11 has never been justified, and it can have a significant

12 impact on samples and the cost of rating commercial

13 products.

14 MR. EISNER: Yes?

15 MS. MEYERS: Yes. I'd like you to add "and

16 tolerance" next to "enforcement sample size."

17 MR. BALLO: Two other issues. One -- this is

18 Tim Ballo with Earthjustice. One that's sort of

19 related to the suggestion about Voluntary Industry

20 Certification Programs is the issue of verification,

21 more broadly, and the role it should play in the

22 compliance regime.
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1 The other issue, I think we'll have to

2 address, is disclosure. What information gets released

3 to DOE? What information gets released to the public.

4 MS. ARMSTRONG: What was the second one? I'm

5 sorry.

6 MR. EISNER: Disclosure. Are you talking

7 about disclosure from forward perspective, or from a

8 voluntary respective on the part of the agency and the

9 company?

10 MR. BALLO: Both. Right? I mean, for the

11 public to have confidence that products are meeting the

12 standard, they're going to need to see -- do we have a

13 certification database, where it collects all the

14 information. To the extent that the people around the

15 table would like for a Voluntary Industry Certification

16 Program, just to substitute for some of the

17 certification burden they'd otherwise face, I think

18 there needs to be some disclosure to DOE and the public

19 of the results of the testing from that Voluntary

20 Certification Program.

21 MR. EISNER: Is there a large amount of

22 confidential business information?
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1 MR. BALLO: That's a question for others

2 around the table, but I imagine that would be claimed.

3 MR. DOPPEL: Yeah. This is Paul Doppel.

4 There's a second part of that disclosure. And that's

5 if DOE does a test, what is disclosed from that test?

6 Because there have been concerns raised in the past

7 that too much propriety information can be released by

8 releasing the entire test results.

9 MR. EISNER: This is a suggestion or an

10 addition?

11 MR. DOPPEL: So the suggestion on that would

12 be to try to come up with data points that would be

13 acceptable for release.

14 MS. BARHYDT: So in terms of information

15 disclosures, the agency can't have a rulemaking that

16 would limit the information released, if it's required

17 to be released under the Freedom of Information Act.

18 That's an area where we could run into legal limits on

19 what the agency could agree to. Because if the Freedom

20 of Information Act actually requires disclosure, we

21 can't by regulation say, "We're just not going to

22 release that."
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1 MR. DOPPEL: Paul Doppel. But I've seen

2 things released under the Freedom of Information that

3 have been so redacted, that you don't even know what it

4 is. I think manufacturers would request something like

5 that, that would -- you know, a redacted report, to

6 protect company information.

7 MS. BARHYDT: I'm not saying one way or the

8 other. I'm just saying we would have to be very

9 careful in terms of regulation, as to what the bounds

10 of that were.

11 MR. EISNER: Is that a comment for a

12 suggestion? We've got an online?

13 MS. ARMSTRONG: We have a comment from Bruce,

14 online, who said -- his comment is, "Reliable

15 forecasting that attempts to predict energy reduction,

16 or reductions in energy use gained from the new energy

17 efficiency standard must be based upon tested -- I'm

18 not quite -- tested produced equipment, not historical

19 development data." I'm not quite sure how that fits.

20 But -- maybe it's part of how you come up with ratings,

21 which I think we've got in every single which way

22 possible on here.
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1 Yeah. I mean, AEDM substantiation is on

2 here. Then certification, testing and intolerances is

3 on here. Model groupings. I mean, this pretty much

4 covers beginning to end, for the most part.

5 MR. EISNER: Ashley, Phillip at HTP.

6 MR. STEPHENS: Phillip at HTP. I think I'd

7 like to see further clarification under model

8 groupings. We have a lot of discussion as to the

9 definition of the basic model versus basic model group,

10 versus the product class.

11 MS. ARMSTRONG: I was trying not to use any

12 common terms. It's a new day.

13 MR. EISNER: Okay. Others?

14 MS. HOOTMAN: Jill Hootman, Trane. I know,

15 Ashley and the Department, you're saying that standards

16 are not necessarily under this. But the only

17 consideration, I think, we need to say about standards

18 is that the Department needs to catch up. For

19 instance, AHRI 340360, you have 2007. We're now on

20 2010, and we're in the process of revising as we speak.

21 So if our unit is tested to something, it needs to be

22 the most current standard, not an old standard.
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1 MS. BARHYDT: So when you say "standard,"

2 you're referring to a test procedure and not a --

3 MS. HOOTMAN: Yeah. Yes.

4 MS. BARHYDT: -- efficiency standard?

5 MS. HOOTMAN: You're right. Not an

6 efficiency standard. Correct.

7 MS. ARMSTRONG: We did adopt that one.

8 Right? I think that comes in the summer. I think we

9 did it when we did the Asher (ph) Rule. I'm not sure

10 when the compliance is, but I do think we did that one.

11 It would be great if we had the newer version --

12 MS. HOOTMAN: But 2010 --

13 MS. ARMSTRONG: Yeah. Yeah. Yeah.

14 MS. HOOTMAN: -- and it's now 2013.

15 MS. ARMSTRONG: Your point is well taken.

16 I'm just saying. Three years is better than seven.

17 We're getting there. A work in progress here.

18 MR. EISNER: Anything else? Have we covered

19 everything? Go ahead.

20 MR. STEPHENS: One more thing. On the

21 equipment classifications? There's new products out

22 that we can't currently fit under the existing
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1 equipment classifications. So is there a way of

2 establishing new ones? Or do we just try to fit it

3 best under an existing one? Sometimes it doesn't make

4 sense.

5 MS. ARMSTRONG: I guess my question to you is

6 is there a way to write guidelines for that, or is it

7 really a product model-specific question?

8 MR. STEPHENS: Well, I'll give you an

9 example. We make Commercial Refrigeration equipment.

10 Currently, for OEM cases that have doors, you have

11 horizontal and you have vertical. But we have a semi12 vertical option. Obviously, there's no current

13 equipment classification for that, and the existing one

14 to use, there's no way it would ever pass. Or you have

15 so much flexibility in it that it's very easy to pass.

16 So is that --

17 MS. ARMSTRONG: Like I said, I think that's

18 one of the ones that would be a SCRE Rule, or comes to

19 the table and talk about SCRE working group, or

20 something like that. I don't know if you want to cover

21 that and certification and forcemeat compliance type

22 avenue. It's up to all of you.
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1 MR. STEPHENS: Well, I threw it out there

2 because I thought it would fall somewhat under AEDM

3 definition. You're trying to group your --

4 MS. ARMSTRONG: Really, what the AEDM is

5 going to try to do is provide some type of methodology.

6 We have an open Rule right now. That's the first

7 issue. I know that's coming. In order to include it in

8 the scope here, that gets a little difficult, because

9 we have an open Rule. Anything coming out of this, we

10 have to work with that Rule. I don't think it would be

11 separate from that Rule, and we'd have to (inaudible)

12 separately from this process. So I don't know if this

13 is the fastest way to get that Rule completed, although

14 some may argue at the table. That's up to you, guys.

15 We do have an open Rule and we have to deal with that

16 issue, from a legal standpoint.

17 The second issue, in terms of -- the AEDM is

18 just going to reflect the DOE test procedure, or if you

19 have DOE Waiver, and how you come up with the rating,

20 in terms of how you're allowed to rate, instead of

21 testing. It's not going to change our equipment class.

22 It's not going to change what standard applies. So I'm
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1 not sure that that would help you too much, there.

2 MR. STEPHENS: Okay.

3 MS. KOJAK: This is Mike Kojak with the UL.

4 I was wondering if we can add in the scope here for a

5 good definition of settings of high efficiency HVAC

6 equipment for the test labs? For instance, the higher

7 efficiency units, to the test standards, that you have

8 to set. If it's a variable speed, you have to force it

9 to low volume, or force it into high. And you have to

10 be able to manipulate the test unit properly in order

11 to do this testing. And if there's not proper

12 documentation from a manufacturer on how to manipulate

13 their unit to perform the tests, the test labs that are

14 being asked to test this equipment, without their

15 knowledge, struggles because we don't have the

16 information to properly test their high efficiency

17 units.

18 MS. ARMSTRONG: This is Ashley. I'm going to

19 group it in in terms of what gets submitted to the

20 Department -- or at least for consideration. So that

21 that way, the proper documentation or whatever you may

22 need to test the equipment can be part of that
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1 conversation.

2 MR. KOJAK: Yeah. Like when they initially

3 send in their ratings, if they can give all that kind

4 of information, at that time. And then have some kind

5 of database, so that when you do the enforcement

6 testing, the test labs have the ability to look up that

7 kind of information.

8 MS. ARMSTRONG: Okay.

9 MS. HOOTMAN: I was being a little facetious.

10 I said, not publicly. In other words, that goes back

11 to reverse engineering and what I have a little problem

12 with. In the fact, that complete test data could be

13 public information.

14 Obviously, companies can reverse engineer and

15 copy. I also agree with you. That's why I was saying

16 about the current test standard. Because we are under

17 consideration in AHRI, about rewriting the test

18 standards around very new technology that is coming

19 out; around variable speed and things like that. If

20 they're taking three years to adopt it, it's a little

21 hard for you guys to come back and test it to a

22 standard that is out there, but obviously, they haven't
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1 adopted it. That is exactly my point.

2 MR. EISNER: Yes, Harvey?

3 MR. SACHS: Harvey Sachs. Ashley, I guess

4 two things stand out for me right now. One of them is

5 the nomenclature controversy of basic models, model

6 groups, and all the permutations thereof. The other is

7 AEDMs. As I think about this, we've got a legacy here,

8 of rating methods that were developed in the '70s, when

9 people walked into the cold room with a gauge, and

10 we're in an environment that's very different now. Both

11 in terms of how we do testing, or how the manufacturers

12 and the labs do testing. But also in terms of the

13 abilities to simulate, which we reflect is AEDMs here.

14 I think we need to include some thinking

15 about the ongoing role of simulation and certification

16 of products for DOE. There's a lot of wording I could

17 put around it, but it's -- "role of simulation"

18 probably summarizes it. One of the things that I've

19 been thinking about is whether DOE should have

20 responsibility for simulation models, which when

21 properly exercised by manufacture, are evidence that

22 the product meets the standards. Because once we get
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1 those simulation models, they're then subject to

2 extension for features that may or may not be part of

3 the standard. They may be a part of the performance

4 evaluation for beyond standard equipment.

5 So I think there's some work to be done in

6 the context of this process, of thinking about where

7 we're trying to get to over five years, not just what

8 we're trying to do to meet the immediate deadline of

9 August 30th. So if you would make sure that we're

10 reflecting that bundle of how AEDMs simulations, in

11 general, and our basic model conundrum are tied

12 together across equipment types, I would be much

13 gratified. You figure out how to.

14 MS. BARHYDT: While Ashley figures that out -

15 - Karen, I think you asked to have AEDM definition

16 added? What exactly are you referring to?

17 MS. MEYERS: Well, you know, I guess it may

18 be captured, in some of the other stuff, that we have

19 listed there, as far as -- you know, what's the basic

20 model? How are we going to group things? And such

21 like that. Unless you know what the AEDM is -- maybe

22 it's more of this unknown rule, that's hanging out
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1 there. It's going to be hard to come up with a

2 certification for, at least the manufacturer, to agree

3 to a certification process, if we don't know what the

4 AEDM is. You know? How can you agree to something

5 that you don't know what you're agreeing to? That's

6 kind of why I listed it separately. It's more to do

7 with this AEDM Rule and what it's going to say, and how

8 that -- I don't know how we're going to do this. I'm

9 certainly going to give it a try. How are we going to

10 move forward on coming up with an agreement on

11 certification when we don't know what the AEDM is going

12 to say? I guess, why I listed it separate.

13 PETE MOLVIE: If I could comment -- this is

14 Pete Molvie. My understanding of what would constitute

15 an AEDM -- did I get that right? Yeah. Would be any

16 simulation or calculation method that can be

17 demonstrated with a certain amount of testing. That

18 can be conventional heat transfer calculations that are

19 done in an Excel spreadsheet, or a sophisticated

20 development analysis. It really could be anything as

21 long as you can demonstrate that your AEDM does

22 represent your efficiencies. Is that correct?
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1 MS. ARMSTRONG: Yes.

2 MS. MEYERS: That's part of it.

3 MS. BARHYDT: Generally speaking, yes.

4 MR. AMRANE: To emphasize what Karen just

5 said, I think it's very important for us, when we have

6 this discussion and we have those meetings, to know

7 what's an AEDM Final Rule. Yeah. We would like to

8 know what the AEDM says. Well, we don't know the final

9 rule. Yes? We've seen the proposed rule. We don't

10 know what's in the final rule.

11 MR. MOLVIE: That is a question. But that

12 doesn't ask, "What are the elements of an AEDM?"

13 MR. RIVEST: Give us some details. We need

14 to know what's in there. I mean, there is a proposed

15 rule. We know what's in the proposed rule, but we

16 don't know what DOE is going to do with the final rule.

17 So there are tolerance issues in the AEDM, for example,

18 the rate.

19 MR. MOLVIE: What's an AEDM tolerance?

20 MR. RIVEST: Yeah. So the issues like that,

21 without knowing the details, it's going to be very hard

22 for us to come up with a consensus, unless we know.
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1 MR. EISNER: Okay. Are there any other AEDM

2 specific issues, like tolerances?

3 MR. MOLVIE: That's kind of the point. We

4 haven't seen one yet.

5 MR. EISNER: But you've seen the previous one

6 and you've commented on it.

7 MR. MOLVIE: Right.

8 MR. EISNER: Right.

9 MR. MOLVIE: So we're waiting on the --

10 MS. HOOTMAN: What constitutes what models

11 are certified? Do you have any wording in there for

12 high selling, tested volume combinations? If they make

13 one of these every three months, that's a little hard

14 to figure out.

15 MR. EISNER: All right.

16 MR. MANDYCK: This is John Mandyck. One of

17 the big difficulties we have on an ongoing basis is

18 understanding the uncertainty in the test method,

19 itself. Because on top of that, we have the

20 uncertainty from conducting the test and the normal

21 variation in manufacturing. When you add up all these

22 tolerances, they could very easily be more than what
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1 we're allowed to have to meet our VSEP requirements.

2 MR. EISNER: I'm sorry.

3 MS. BARHYDT: Did you get that, Ashley?

4 MS. ARMSTRONG: Yeah. It's so -- the

5 tolerances. Right? I don't know. I think, for the

6 most part, I tried to rearrange these by larger

7 subsections and still keep the details of the ideas to

8 just kind of help group things a little bit, about that

9 way, when you start to discuss what's the most

10 important, in terms of priorities. Maybe this will

11 help you. I think I still have everyone's on there.

12 You know, tolerances go both ways. Whether there's too

13 many tolerances versus not enough. They're in there.

14 In terms of AEDM, what I'm hearing is that

15 you guys want some finality to the process. Bringing

16 it into this will extend it, potentially. Paul's

17 looking at me like, "I don't believe you, that that's

18 even possible." I guess that's the question. Is that

19 really what you want, as a whole, or are we ready to

20 move forward?

21 MR. EISNER: Can you resolve the issues

22 you're concerned about with respect to the rule that
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1 we're talking about, without AEDM Rule?

2 MR. DOPPEL: This is Paul Doppel. The AEDM

3 is kind of crucial to a lot of this stuff, and not

4 knowing when we're going to see what it is, that's

5 important. That's the important part.

6 MS. MEYERS: So the AEDM is what you certify

7 -

8 -

9 MR. EISNER: The testing procedures.

10 MS. MEYERS: Well, it's the efficiency --

11 MR. EISNER: Not tested.

12 MS. MEYERS: Yeah. It's the efficiency --

13 it's the model used to come up with the efficiency of

14 your unit. This is your certification to that

15 efficiency, or the DOE-regulated issue. So if we don't

16 know what that model is, how can we agree to how we're

17 going to certify to this unknown thing?

18 MR. EISNER: It's not even a matter of

19 agreeing. How do you begin doing the testing before

20 the deadline?

21 MS. ARMSTRONG: Well, they would have to do

22 the testing. You would use a AEDM.
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1 MR. EISNER: Only in certain circumstances,

2 or what?

3 MS. ARMSTRONG: You do one or the other.

4 Right. So you would either test, or you would use a

5 AEDM.

6 MR. EISNER: But does the current rule state

7 that they will have the option to choose the

8 alternative? Or does it only say if one is available

9 at the time -- only if AEDM is available on time?

10 MS. ARMSTRONG: Right. The deadline's set.

11 Right? We have AEDM Regs now; whether or not they're

12 helpful or not is a different issue. We are revising

13 them because of concerns that people have --

14 MR. EISNER: So AEDM --

15 MS. ARMSTRONG: -- and obviously, the

16 Department has committed to finished that.

17 MR. EISNER: AEDM is a revision of what is

18 already on the books. They don't know what you're

19 going to revise.

20 MS. ARMSTRONG: It's in the proposal. That's

21 it. We haven't finished it yet.

22 MR. EISNER: We can't rely on the proposal.
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1 MS. ARMSTRONG: Correct. That's where we

2 are.

3 MR. EISNER: So how do you answer their

4 question, that we can't sit down and agree what should

5 be in a Rule, without seeing what's going to be in the

6 alternative means of testing compliance changes?

7 MS. ARMSTRONG: Okay. So I guess the

8 question is, do they want it brought within the scope?

9 Or do they want it --

10 MR. EISNER: Well, I'm having a little bit of

11 trouble beyond scope. I'm having trouble with -- even

12 if it's not within the scope, do you believe they can

13 effectively negotiate?

14 MS. ARMSTRONG: You would have to assume you

15 will have a valid AEDM.

16 MR. EISNER: By what time are we talking

17 about?

18 MR. COHEN: The issue would be whether the

19 AEDM Rule would be done before the testing rule, which

20 applies starting January 1st is --

21 MR. EISNER: But are there issues that we

22 need to negotiate now, that can't be effectively
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1 negotiated now, without the AEDM Rule? Or do you

2 believe they can be?

3 MR. COHEN: Well, in some ways, I hear Karen

4 and others saying they don't believe it can be. Right?

5 So that sort of effects whether we could have a

6 negotiation about it.

7 MS. MEYERS: And if I agree to something, on

8 a certification program, and then that AEDM comes out?

9 MR. COHEN: Right.

10 MS. MEYERS: You know, I can't negligibly

11 comment, because I agreed to something, but it's a

12 game-changer. The AEDM can be a game-changer. And

13 unless you know what that is, it's kind of hard to move

14 forward.

15 MR. COHEN: So that suggests bringing the

16 AEDM Rule within this process.

17 MS. MEYERS: It --

18 MR. COHEN: Which is fine, but the

19 consequence -- for lack of a better term -- that is, it

20 will extend the time that the AEDM Rule is in play.

21 Because whatever would come up through this process

22 would have to go out in a supplemental proposed rule,
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1 probably. And if it's different from what -- if it's

2 not within the scope of what we've already proposed,

3 you could decide that what we've already proposed is

4 fine. Then all is well. But if you come up with an

5 entirely different proposal, we should have to go out

6 for another round of notice and comment on that.

7 MR. DOPPEL: This is Paul Doppel. One of the

8 things that the members of the industry recommended was

9 that the January 1st deadline be tied in -- the

10 compliance deadline -- be tied in with the publication

11 of the AEDM. Because there's a certain amount of time

12 that takes to get things accomplished. One of the

13 concerns we had was not getting it soon enough. That's

14 kind of fulfilling itself right now, because we're

15 getting closer and closer. You know, a recommendation

16 would be to put out the implementation of the January

17 1st deadline, and maybe join it in with this process,

18 one year from the end of this process.

19 MS. ARMSTRONG: It's on here. It's right

20 here.

21 MR. DOPPEL: But that's the significance of

22 the AEDM.
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1 MR. EISNER: For me to get a better handle on

2 the scope of what we're talking about could be effected

3 by AEDM, based on the MPRM that you saw, the Proposed

4 Rule, would a lot of these issues come off the table if

5 the final rule included those? Would you still have

6 all these issues on there?

7 MR. DOPPEL: Yeah.

8 MR. HON: Charlie Hon. I think that about

9 half of it would come off the table, because we would

10 know what we were doing. We would know the exact

11 requirements for the validation of our programs.

12 Because an AEDM is basically -- it takes the known test

13 data. Then you say, "Okay, let's apply some other

14 components into the system and come up with a

15 calculated method for determining what the unit

16 efficiency would be without actually testing that

17 unit," just because there's millions of variations we

18 could run across.

19 But the problem is that we don't know the

20 validity of the test data yet because you still have to

21 validate your test. But you don't know the level of

22 validation required. You really have some serious
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1 questions, as far as information basis coming from

2 manufacturers, when you decide to change a fan. Is it

3 a valid number that they're giving you? Is it

4 accurate? Then you have to certificate that component,

5 to build it into your test. And every time you source

6 a new component, you're adding to your specifications

7 and your overview and then you may be --

8 MR. DOPPEL: That's a basic model.

9 MR. HON: -- invalidating your whole AEDM,

10 because that component may have a big enough variable

11 to throw your numbers out. So it's a very, very

12 vicious circle you get into with an AEDM. There's no

13 way around it with certain systems that it would cover

14 under the standard.

15 MR. EISNER: Other comments? Yes?

16 MR. STANONIK: Yeah. Frank Stanonik, AHRI.

17 It's almost like you're asking -- DOE is asking the

18 working group to assume that they're going to have an

19 acceptable, practical, workable AEDM and make their

20 recommendations, and then at some point, apparently

21 within the working group's time frame, we're all going

22 to see the final AEDM. If their assumption proves to
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1 be incorrect, it's almost like there doesn't seem to be

2 an opportunity to fix a critical part of the

3 negotiation. And yet, Ashley, you're saying if we

4 bring it into the working group, it's going to delay

5 that process. It just seems to me there's got to be

6 some way to give the working group the tools it needs

7 to really figure out the answer, without necessarily

8 building in more delay. There's got to be a way.

9 MR. BAUMAN: This is Jeff Bauman. Go ahead.

10 Sorry.

11 MR. EISNER: I was just going to ask, well,

12 Laura, how do you respond to that?

13 MS. BARHYDT: Which part?

14 MR. EISNER: Asking them to assume something

15 that may not end up in the final rule. Will they have

16 wasted time on these negotiations?

17 MS. BARHYDT: I don't think so. Obviously,

18 I'm hoping to be educated through this process.

19 First of all, our goal with the AEDM rule is

20 to come up with a rule that is -- it does reflect the

21 realities of the manufacturing process. It does

22 reflect the tolerances that are inherent in the testing
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1 process. Our goal is to come up with something that is

2 not going to cause problems for the overall

3 certification process. So given that that is what

4 we're hoping to achieve with the AEDM Rule, that's sort

5 of the assumption that the Department is working from.

6 But in addition to that, our expectation is that you

7 will see something while we are still meeting. So

8 before we get to a point where we're voting, you will

9 see something. So if we have miscalculated, everyone

10 will know before we vote.

11 MR. EISNER: Is there a way to --

12 MS. ARMSTRONG: Sorry, Neil. Can I actually

13 make one suggestion? There's two options. Right? You

14 can say DOE -- and the Committee needs to decide. You

15 can say, "DOE, we'd like you to finish this, or do the

16 next step, as soon as possible and we want to see it,

17 to be able to inform." Or, "We'll just bring it in, at

18 this point." The Committee wants to take control of

19 that AEDM Rule. But you're going to have to think

20 about that when you do your ordering of your -- what's

21 the most important? What do you want to tackle first.

22 Because that would have to go through the stages
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1 earlier than the August 30th deadline. So that's kind

2 of what you're waiting here. At this point, you might

3 as well just say, "Bring it in, or not." That's really

4 up to you, guys.

5 MR. BAUMAN: This is Jeff Bauman, from

6 National. I think, as you've seen already, there's a

7 lot of concern and even -- I understand the AEDM may be

8 separate, at this point. I guess part of the question

9 being, "Is that appropriate to bring it in?" Because a

10 lot of the things we're talking about, substantial, or

11 products, or classes and things are tied to all sorts

12 of the AEDM requirements for substantiation, your

13 highest volume by your product classes. So they're

14 obviously tied together and in ways, as we resolve one,

15 they help us with related issues.

16 I also would think that getting -- I don't

17 know how close DOE is, as far as the finalized AEDM

18 Rule, but that, to me, is as much passion and concern

19 with the people around this table, as the other issues

20 we're dealing with. With that ultimately being another

21 thing that DOE would have to negotiate separate, at a

22 later time. This may actually shorten the time to get
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1 to a final AEDM, in my mind. You're asking the

2 question, Ashley, should we put it out? I think I

3 would vote to bring it in as part of this, because I

4 think it's a critical part of a lot of issues that are

5 here. I think, actually this group could help DOE

6 provided a better AEDM Rule, ultimately.

7 MR. EISNER: Assuming this was the entire

8 list of issues, to be covered in the scope; and

9 assuming that you were willing to accept them all

10 within the scope, could they be organized in such a way

11 that we could start off with non-AEDM issues? In the

12 hopes that you will then meet your goal, of getting the

13 final rule out on AEDM fairly shortly?

14 MS. BARHYDT: I think we could organize them

15 that way. But I'm also hearing that a lot of the

16 people at the table believe that they are so

17 intertwined that they don't really see that.

18 MR. EISNER: Well, let me ask. Are there

19 issues that the rest of you see, that we could start

20 discussing? That could be fruitful regardless of what

21 comes out in the AEDM Rule? Charlie?

22 MR. HON: Charlie Hon. There's two things
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1 going on here. First, there's a lot of units that are

2 just -- a lot of things that we make are just tested,

3 period. Because it's too easy to do. Some of the more

4 complicated or innate products are much more difficult

5 than that. The problem comes in a timeline. If we

6 would have an AEDM program completed today, the testing

7 necessary to validate would not be completed by the end

8 of the year. So no matter what happens, AEDM cannot be

9 relied upon to get all the necessary information to the

10 DOE by the end of this year.

11 MS. BARHYDT: So I have to take a step back

12 from that and say without knowing what's going to be on

13 the final AEDM Rule, you can't say that there's no way

14 the testing could be completed.

15 MR. HON: Any rule requires exercising.

16 MS. BARHYDT: So is there no test data? If

17 there is test data -- let's say DOE just came up with a

18 remarkable AEDM provision that said, "You had to test

19 two models of your entire offering of products, across

20 all product classes." I'm not saying that's what we

21 would actually do. Let's say you had to have two

22 tests. Presumably, everybody in this room has tested
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1 two things under the DOE test procedure, at some point

2 in time. There has to be some window in there, in

3 which you would have the test data to support an AEDM.

4 MR. BAUMAN: This is Jeff Bauman from

5 National. I think to Charlie's point, practically

6 speaking, from what we've seen and what has been

7 proposed so far, we would certainly not expect DOE --

8 we would be happy -- you know, as long as we'd be happy

9 if they came up with a rule. I think our clear

10 expectations, based on what has been proposed so far,

11 would be that there -- as Charlie said, they would not

12 be able to meet it by the end of the year.

13 MS. BARHYDT: Okay.

14 MR. DOPPEL: It's not just one. It's six

15 models, I believe. Six different models, and then you

16 have to do some verification of that afterwards. So

17 it's quite a lot of testing that has to be done.

18 MS. HOOTMAN: And they're very specific. Not

19 exactly ones that we -- sorry. This is Jill from

20 Trane. Not exactly ones we would have picked in

21 development testing to develop our units. That was

22 also part of our comments on the AEDM, was that --
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1 MS. BARHYDT: Right. So we've gone back to

2 that very general --

3 MS. HOOTMAN: -- you know, so all of these

4 comments.

5 MS. BARHYDT: I agree. I agree if we were in

6 this very general, too, world. Yeah. Sure, we'll have

7 those, probably. But there would have been the

8 definition of what we thought we needed to test, not

9 what your definition.

10 MS. HOOTMAN: Right. So the comment that you

11 would have to do additional testing is based on the

12 assumption that we adopt what we proposed, as written

13 in the proposal. What about the test data from AHRI,

14 for those of you who are AHRI participants? Is there

15 not a large volume of test data from participation in

16 that program, for a wide range of models? Sure?

17 MS. BARHYDT: But it's a --

18 MS. HOOTMAN: For those of you who are --

19 MS. MEYERS: Can you share when this may be

20 out? If it's going to be out in two weeks, it's kind

21 of a moot point, of us having this long discussion. Btu

22 you know, if we're still months away, I think -- you
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1 know, and I know you guys don't always know that. But

2 if we could have something, it might change the

3 conversation.

4 MS. ARMSTRONG: I think from my perspective,

5 not on the Committee, but as the person writing the

6 AEDM, I think you should just bring it up this way.

7 There are enough comments, opinions about what test

8 data you may have, that may be valid. What's missing

9 from it, what's not there, how important it is to this

10 proceeding. We don't want to impede the negotiations

11 moving forward. If you bring it in, at this point --

12 if you tackle it first, let us move forward with that

13 issue. It will help give you some assurance that you

14 can negotiate in good faith, with the Department,

15 because that issue will be put aside.

16 Even if I put something out in a week or two

17 weeks, you still might have issues with it, in which

18 case, you may ask to reopen it as part of these

19 negotiations anyway. So with that point, I would ask

20 the Committee to think about that. Ultimately, you

21 guys get to vote and it's totally up to you. And I

22 will go work on it tonight. If you decide you want me
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1 to.

2 But at the same time, I think it would help

3 give you some assurance that both the Department and

4 everyone here is coming in good faith and help you

5 maybe move past this issue. Because there's a lot of

6 issues in there. All of which we want to see positive.

7 MR. SACHS: What was the meeting in two

8 weeks? Just talk about AEDM-related issues?

9 MS. ARMSTRONG: Sure. Go for it. I'm not on

10 the Committee.

11 MR. SACHS: Harvey Sachs. I just asked

12 Ashley to propose that we meet again in two weeks, and

13 that the discussion be around AEDMs and she said, "You

14 ask." So I'm making that a suggestion, that we

15 challenge Ashley in that way and begin our

16 conversations with coming to a fuller understanding of

17 the issues surrounding AEDMs is --

18 MS. BARHYDT: That would bring the AEDM

19 rulemaking within the scope of this Committee, and that

20 would effectively end. Is that the right way of putting

21 it? The Notice of Proposed Rulemaking that was put

22 out, previously. No?
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1 MR. COHEN: What option is there, the

2 proposal we put up -- if you decide?

3 MS. ARMSTRONG: You could vote for additional

4 proposals, and in which case we'd have to ask them

5 first.

6 MS. BARHYDT: Okay.

7 MR. EISNER: Well, from my perspective -- let

8 me make sure I understand what we're talking about.

9 You've already got comments on the rulemaking. I

10 assume the comment period is closed. We're waiting for

11 a final rule, a discussion in two weeks. Two days'

12 worth of discussions? Whatever we need for it? How is

13 that going to affect the ability to get the AEDM Rule

14 out? Will you have to open it up for further public

15 comments, for example, as a result of this meeting?

16 Even if the meeting is a public meeting.

17 MR. COHEN: So we had a brief conversation

18 about this.

19 COURT REPORTER: Microphone, please.

20 MR. COHEN: Oh, I'm sorry. So we had a brief

21 conversation about this. Obviously, it would depend o,

22 again, if they just decided at the -- so first of all,
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1 this is a public meeting. Right? Every discussion we

2 have would be a public meeting. Anybody in the public

3 would obviously have an opportunity to attend. It's

4 not an ex parte conversation because of that fact.

5 MR. EISNER: You would, in your notice, say

6 that they were meeting on this day. They would talk

7 about AEDM.

8 MR. COHEN: AEDM.

9 MR. EISNER: As the subject of a proposed

10 rule?

11 MR. COHEN: Correct.

12 So anybody theoretically could show up. We

13 have a webinar, whatever. I think we would have to put

14 out some amount of -- even if they were going to it --

15 well, let me think about this one a second.

16 If the Committee decided that the AEDM Rule,

17 that we proposed was perfect in all respects and we

18 should just finalize as-is, I'm not sure we would need

19 another opportunity for public comment, in addition to

20 what was happening through the FACA Committee.

21 Obviously, if they came up with something different, or

22 they came up with a different proposal.
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1 MR. EISNER: More importantly, from what I'm

2 hearing around the room, they don't need to know what

3 staff says, "This sounds good. We think we can do all

4 this in the Final Rule." You still have people in the

5 Department, people in other parts of the government,

6 who have to say, "Okay." So I don't see this group as

7 getting any kind of assurance that, "Don't worry. It

8 won't be a problem," which is what they seem to be

9 looking for. That will never be the case.

10 MR. COHEN: That's the case, of course, even

11 with the proposal. Right? For any proposal that comes

12 out of the Committee through the ASRAC, we still would

13 have to get the approval and all that.

14 MR. EISNER: No. I'm talking about -- maybe

15 I'm confused, Dan.

16 We're going to discuss -- a rule that is out

17 now, is a proposal. The AEDM Rule. You're going to

18 listen to everything they're going to say and you're

19 going to talk to them, and you may agree and we'll go

20 back and make these changes. So that it would like A,

21 B, and C, if you could say that much -- and I doubt

22 that you could even say that much. But A, B, and C may
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1 not get all the way through the process of the

2 government to come out as a Final Rule. They seem to

3 need the assurance, "This is the Final Rule. It will

4 require A, B, D, and F."

5 MR. COHEN: I guess we have to do some sort

6 of conditional -- well, I don't know. The interesting

7 question, too, and I don't know how this would work,

8 whether they could vote on the AEDM, if that could be

9 one output of the Committee, just on an AEDM proposal.

10 That would then go up through ASRAC and ASRAC could

11 then forward that to the Department as a recommendation

12 and the ground rules would apply to that as one

13 recommendation. Then go back and negotiate the other

14 issues, about certification and enforcement, and

15 verification and make another recommendation to ASRAC

16 and to the Department and the ground rules that would

17 apply to that.

18 MR. EISNER: I'm still questioning whether

19 the group will have the certainty that it seems to

20 want.

21 Charlie?

22 MR. HON: Charlie Hon. I have one simple
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1 question. Is the next publication going to be a final

2 rule, or a proposed rule?

3 MR. COHEN: Come back to this. So if you're

4 going to bring it into this process, and you're going

5 to negotiate something here, and that proposal --

6 whatever you come up with -- is different from what we

7 proposed, in a way that it could not have been foreseen

8 in the original proposal, we have a legal obligation to

9 re-propose. If you decide what we came up with in the

10 proposal rule is perfectly fine and we should adopt the

11 proposal rule, without change, we could do a Final

12 Rule. If you don't bring it into this procedure, our

13 next publication would be a final rule.

14 MR. HON: That's the key, right there. Your

15 next publication, if untouched, would be a final rule.

16 MR. EISNER: Not if untouched. What Dan is

17 saying is, if you ask for changes that were not within

18 the scope of the proposed rule, he has to go through

19 another round of comment.

20 MR. HON: Right.

21 MR. EISNER: But if all you are seeking are

22 changes that are within the scope, not proposed, but
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1 within the scope. So if I said the part should be five

2 inches, and no larger and no shorter, and you wanted it

3 to change to six, now he's got to ask for comment. But

4 if he said, "We want to make it five, but it could be

5 larger or smaller. We'd like comment on it," it

6 probably would be in the scope.

7 MR. HON: But if we try to meet our deadline,

8 the simple question is, would it be a final, if we

9 leave it untouched, coming out of DOE? And he said,

10 "yes." And therefore, if we leave it untouched, we

11 would have something to work with. We will have that

12 stake driven into the ground, hard, because we will

13 have a final rule.

14 MR. EISNER: But you don't know -- again, I -

15 -

16 MR. HON: We don't know what it says.

17 MR. EISNER: -- but even if you did know what

18 it says, right now, you wouldn't know when it's coming

19 out.

20 MR. HON: That's true.

21 MR. EISNER: None of the people in this room

22 have control over that.
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1 MR. HON: That's true.

2 MR. EISNER: It may be after our deadline to

3 do anything. That's the best case scenario. The worst

4 case scenario is we enter into the loop and extend it

5 further, which extends the whole process more and goes

6 through another proposal, and tries to manipulate all

7 of our work into it. We could be looking at another

8 year.

9 MR. COHEN: Can I throw another wrinkle into

10 this? Which is -- based on the comments we received --

11 maybe I answered your question actually in retrospect a

12 little too quickly. Based on the comments we received

13 on the proposed rule, another potential option is that

14 we may realize that there were additional issues that

15 we didn't address completely in the original proposed

16 rule, and we may, on our own, decide we need to do a

17 supplemental proposal.

18 MR. HON: That's why I asked the original

19 question. Because if you weren't considering the

20 additional proposal, we would have had some stake in

21 the ground. But you're not even to that point yet.

22 MR. COHEN: Well, I don't know. We're
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1 reviewing the comments. A decision will need to be

2 made. Typically, after you do a proposal, you do a

3 final one. You know, based on what we receive as

4 comment, we could. The whole point of comment is to

5 point out to us where we miss things. To the extent we

6 review the comments and things, I think that we missed

7 substantial issues, we might well do another proposed

8 rule.

9 MR. EISNER: Yes?

10 MR. AMRANE: (Inaudible). I think it's

11 through the best interests of everybody to get it

12 right. So I would be in the favor of bringing that

13 rule here, this working group, making sure that it's

14 right. Otherwise, I think we're going to have problems

15 in the future.

16 MR. EISNER: Does everyone concur? And has

17 everybody considered whether they can live with a rule

18 going into effect on December 30th?

19 MR. DOPPEL: It's Paul Doppel --

20 MR. EISNER: But you're agreeing to one

21 without saying what your position would be on the

22 compliance date, for the existing rule.
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1 MR. DOPPEL: It's Paul Doppel with

2 Mitsubishi. I mean, this is like you're trying to play

3 some sort of a game, like golf, with your eyes

4 blindfolded. Because we need -- we need this

5 information in order to work through all these other

6 issues that we've identified, and without having the

7 information on the AEDM. It's a critical item.

8 MR. BAUMAN: This is Jeff Bauman, from

9 National, again. I heard the term before "the worst

10 case scenario." The worst case scenario, rather than

11 being backed up against the deadline is getting a rule

12 that doesn't work the best. I mean, on our last

13 comments -- I recall, from the last, we've been working

14 very hard on the AEDMs, but there was still lot of

15 concern from manufacturers and other groups, as far as

16 getting that right and getting that where manufacturers

17 could certify properly using an AEDM. I think the

18 critical part is getting that right. I think we've

19 already said, we are backing up ourselves -- we've got

20 to keep a sense of urgency here, but also that means we

21 would recommend extending the deadline to the AEDM and

22 the certification for six months or a year after the
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1 group's finished work. I think that's a better option

2 than not taking the time to get the rule right. But

3 understanding, too, that we have to keep that sense of

4 urgency about us. It's not an indefinite deadline.

5 We've got to keep something, but let's get it right.

6 MR. EISNER: What about DOE?

7 MS. BARHYDT: Given the experience with the

8 Certification Rule, I am all in favor of getting a rule

9 that everybody can live with.

10 MR. EISNER: What about --

11 MR. SACHS: It's very rare that I agree with

12 Karim.

13 MS. BARHYDT: I won't tell, Mr. --

14 MR. SACHS: The stakes here, in terms of the

15 future of certification, the future of enforcement, are

16 really tied up with getting the AEDM right. I just see

17 that as an essential building block. And at the same

18 time, I don't think it's fair for me, as an advocate,

19 who's worried about lost national energy savings from

20 the present system. But that shouldn't -- that has to

21 be balanced against the needs for the manufacturers to

22 implement whatever rule is coming out. So if this is
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1 going to require additional time, there has to be

2 proportional additional time given for the effective

3 date, and that's not something that makes me happy. Tim

4 is probably going to shoot me after the meeting. But I

5 think it's the only fair way to go.

6 MR. EISNER: Tim?

7 MR. BALLO: I've actually been comfortable

8 with the initial certification deadline being within

9 the scope. I completely agree, if we need to push that

10 back six months or a year to get this right, it's

11 totally worth it.

12 MR. EISNER: DOE on pushing it back?

13 MR. BALLO: Too much --

14 MS. BARHYDT: It's within the scope. I mean,

15 I completely agree it's within the scope.

16 MR. EISNER: Okay, but I more fairness to the

17 DOE, is you need more time to go back and talk to

18 senior officials about what the group is saying, then

19 it's appropriate for you to say that. You don't have

20 to --

21 MS. BARHYDT: Right.

22 MR. EISNER: -- these are the kinds of issues
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1 you want to talk to the top people about.

2 MS. BARHYDT: No. I can say that it's within

3 the scope. Now as to --

4 MR. EISNER: I'm not talking about within the

5 scope. I'm talking about whether extending the

6 deadline is what people seem to be saying is part and

7 parcel of the decision to proceed by including this

8 AEDM -- AD -- whatever. Within the scope of these

9 discussions. If we do that, does DOE agree it will get

10 the deadline extended? That is what I think I'm

11 hearing in the room. Am I correct?

12 MR. SACHS: Yeah.

13 MS. HOOTMAN: So what I would say is that we

14 need to come up with a new frame work with a new

15 deadline or frame work or timeline for the new

16 regulations, that we can have on the books by December

17 31st to replace the current deadline.

18 MR. EISNER: I'm not sure I followed all

19 that. Did everybody else follow it?

20 MR. SACHS: Yes.

21 MS. HOOTMAN: Framework. A framework that

22 could say it is then extending it.
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1 MS. BARHYDT: Yeah.

2 MR. EISNER: Extending the December 31st

3 deadline?

4 MS. BARHYDT: Right.

5 MR. EISNER: And reopen --

6 MS. BARHYDT: It would be the proposal. It

7 wouldn't just be extend the deadline.

8 MR. EISNER: Good.

9 MS. BARHYDT: Right.

10 MR. EISNER: Right. And everybody's ready to

11 commit, that that's what we ought to do?

12 MR. SACHS: Yeah.

13 MR. EISNER: Including DOE, that we ought to

14 get it extended?

15 MR. SACHS: Yeah. That we ought to start

16 doing things right.

17 MR. AMRANE: You were doing good, Harvey.

18 MR. SACHS: It's nice to have friends.

19 MR. EISNER: If I've done anything today,

20 I've made friends out of people who weren't friends

21 before. Right? You're not agreeing with that?

22 MR. SACHS: The dirty little secret is we're
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1 all friends.

2 MR. EISNER: We need to have Ashley add this

3 to the list.

4 All right. We have to be out of this room in

5 an hour and 15 minutes so the cleanup crew can come in.

6 So far, we haven't created much of a mess. But we've

7 got to decide what we're going to do next. To meet in

8 two weeks?

9 MR. SACHS: Meet in two weeks.

10 COURT REPORTER: Here's the mic, please. Use

11 the mic.

12 MR. SACHS: This is Harvey Sachs. I've put

13 the question on the table that we resolve to meet again

14 in two weeks, to discuss issues around AEDMs.

15 MR. EISNER: Right. And is it your

16 understanding that that means to talk about the

17 proposed rule, that the agency put out, and give them

18 the consensus of this group, about the proposed rule?

19 Or something different? Some free-flowing discussion

20 about different issues?

21 MR. SACHS: I had, intentionally, not tried

22 to constrain what I suggested, thinking that there are
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1 a lot of different people here who've got a little bit

2 different perspectives on this, and we ought to hear

3 them.

4 MR. EISNER: Okay.

5 MS. ARMSTRONG: So could I make a proposal

6 for the Committee to consider? In response to

7 Harvey's suggestion of meeting in two weeks about

8 AEDMs. The Department would like to bring a straw man

9 for you guys to consider, or at least start the

10 discussions. That we have some ideas that we're

11 floating in response to comments and a lot of other

12 concerns that we've heard. For you then to consider and

13 think about, massage, whatever, in two weeks. So we

14 would come to the table presenting a straw man.

15 MR. EISNER: The straw man being a modified

16 proposal, based on the comments? Would it be something

17 that, in your opinion --

18 MS. ARMSTRONG: Yes.

19 MR. EISNER: -- within the scope of the

20 notice?

21 MS. ARMSTRONG: I think it would help with

22 the discussions. Let's put it that way.
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1 MR. AMRANE: I would like to make a comment.

2 If you do that, please give us something -- sorry. If

3 you want to share this document with us, please do it

4 before the meetings so that we have time to digest it

5 and to come up prepared. Otherwise, we're going to be

6 wasting a day.

7 MR. EISNER: Okay.

8 MS. ARMSTRONG: My lawyer will think how we

9 do that.

10 MR. EISNER: Yeah. Sometimes you have to

11 make it available to the whole world at the time it's

12 made available to this group. Doing it in a public

13 meeting makes it available.

14 All right, so -- Charlie?

15 MR. HON: A couple questions. Number one,

16 how much time does DOE need for public notification?

17 Because this is a trigger on an active rulemaking.

18 Isn't it? How long do you need? That's one question.

19 Number two, how much time do we need, as a Committee,

20 to work on this project? Is it one day? Is it two

21 days?

22 MR. EISNER: Well, you guys have worked on
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1 the first draft. Do you think you could --

2 MR. HON: That's right.

3 MR. EISNER: Do you think, based on what was

4 in the first draft -- based on the time it took you to

5 absorb the first draft -- there's some learning

6 experience in this -- how much time would you expect?

7 MR. HON: I would think it's a two-day

8 project.

9 MR. EISNER: Do you think it could be done in

10 two days? Or do you think we could at least get a

11 good start?

12 MR. HON: If we see the document 2-3 days in

13 advance, I think we can get it done in two days.

14 MR. EISNER: The straw man, I assume, will

15 not necessarily be a preamble, but just the rule text?

16 MR. COHEN: Maybe more options.

17 MR. EISNER: More options, but rule text

18 options?

19 MS. ARMSTRONG: We would translate, wherever

20 we need to, and the rulemaking --

21 MR. EISNER: But there wouldn't be a response

22 to all the comments? There wouldn't be a
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1 justification, anything like that?

2 MS. ARMSTRONG: No.

3 MR. EISNER: Everybody comfortable with that?

4 The date may not be certain, but it will be some time

5 in the next couple of weeks; maybe a couple days by the

6 date you can get the notice out?

7 MS. ARMSTRONG: Preferably before the first

8 week in June.

9 MR. EISNER: Oh, no. A different deadline.

10 MS. ARMSTRONG: I'm just saying.

11 MR. EISNER: I think you need the flexibility

12 to go back and figure out when you can do this. When

13 you can get the room. When you can get the document

14 done, all that.

15 MS. ARMSTRONG: Well, the rule is on your

16 screen.

17 MR. SACHS: Is there a particular reason we'd

18 have to meet at DOE?

19 MS. ARMSTRONG: No.

20 MR. EISNER: The ground rules you agreed to

21 today, says you'll meet here. But it doesn't have to

22 be. You can change that.
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1 MS. HOOTMAN: Yeah. I was going to make a

2 point about those rules.

3 MR. EISNER: You can break them already.

4 MR. COHEN: Well, we developed those ground

5 rules for the Transformer proceeding. We did that on

6 the notion that if we met here, it was effectively a

7 neutral site. We weren't sure that we would be able to

8 accept what is essentially a gift of meeting space, if

9 we went off-site. We subsequently were able to work

10 that out with the folks who worry about those issues

11 here. And we did, in fact, do that in the Transformer

12 proceeding. So we did use alternative sites, when

13 dates were available within those places. Actually the

14 rules were more comfortable, and nicer and all that.

15 MR. EISNER: I would put out on this, there

16 are only two days together, if that's important to

17 people, in terms of travel. May 13th, May 14th. That

18 also gives the agency a little over two weeks to make

19 all the other arrangements.

20 MR. CYMBALSKY: If we use this space.

21 MR. EISNER: If we use this space. If we use

22 something else, it would be different.
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1 MR. CYMBALSKY: -- because of what happened

2 with -- we can't go to Las Vegas or any other place

3 because of -- keep it in town.

4 MR. EISNER: Do we want to give the agency

5 then the discretion to go back and email as quickly as

6 they can with possible dates, possible locations? Or

7 do you want to meet here on the 13th and 14th?

8 MS. MEYERS: I can't do the 13th. I can do

9 the 14th and 15th.

10 MR. EISNER: Maybe we should give the agency

11 the flexibility to arrange a meeting as quickly as

12 possible, that works with everybody else.

13 MS. HOOTMAN: Yeah. That will be great.

14 MR. COHEN: To the extent, that others have

15 spaces that they can make available, if you could let

16 us know -- the size and accommodating other members of

17 the public and let us know what your availability is

18 for spaces. That would be helpful.

19 MR. EISNER: And webinar telephone.

20 MR. COHEN: Telephone and all that. Yeah.

21 MR. SHEBIK: That's my question. In the

22 event you can't make the date, will a webinar or a live
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1 meeting be set up?

2 MR. EISNER: That's what Dan is saying is a

3 requirement.

4 MR. SHEBIK: Okay. That was my question.

5 Thank you.

6 MR. EISNER: If it's here, they can do it.

7 Any place else, we have to make sure they can do it.

8 All right. Is everybody on? They'll do it as quickly

9 as they can. They'll get notice out to everybody,

10 making sure those dates work. They'll give you some

11 alternatives, if that's possible and the location. All

12 right. There was something -- you had a message from

13 one of our ASRAC members, that you wanted to read, that

14 you got, because his phone was off? When I come from

15 the Department of Transportation, no one is allowed to

16 participate over the phone, while driving a car. No

17 cell phones in cars.

18 MR. MYERS: That anyone would admit to.

19 MR. EISNER: I'm sorry. What?

20 MR. MYERS: Are you proposing a two-day

21 meeting?

22 MR. EISNER: That is what the consensus seems
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1 to be. We would need at least two days, just to talk

2 about this issue.

3 MR. SACHS: Harvey Sachs, ACEEE. I'm reading

4 an email from John Mandyck, ASRAC. "I'm in a car in

5 Manhattan and I'm listening to the call by phone. The

6 phone is permanently muted, so I can't speak." And in

7 Manhattan, it's undoubtedly stopped anyhow. "I agree

8 with your suggestion that ASRAC give the working group

9 a chance to any ASRAC questions or suggested changes.

10 Feel free to share with your group. I'll be on the

11 call until four." Of course, he's permanently mute.

12 MR. EISNER: All right. Our goal is to set

13 up another meeting. One of the things, if we're going

14 to extend it to this additional category, we're going

15 to have to extend some of the things in the ground

16 rules. I would suggest we give DOE the flexibility to

17 redraft the ground rules. I can talk with them over

18 that, to make sure we're encompassing the broader scope

19 and some of the changes and wording that would have to

20 be made to the document. So we start off with only a

21 few things to resolve.

22 Do we want to go beyond the mid-May and start
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1 talking about future meetings? Assuming everything

2 works out, so people can start putting them on their

3 schedules. It's probably a good idea to do that. All

4 right. You all brought your calendars?

5 MS. ARMSTRONG: -- their frequency meeting,

6 and we can do the whole, to cover the whole -- because

7 I know we've got the two ASRAC covers on here.

8 MR. EISNER: Typically, in meetings like

9 this, again, the group decides how often they want to

10 me, for what duration they want to meet. Two days

11 seems to be somewhat of a normal. It is not a

12 requirement, of course. Some agency reg. negs, they've

13 met every two weeks. A lot of it depends on how much

14 time you need, between meetings, to prepare for the

15 next set of issues that are going to come up in the

16 subsequent meetings. You also want to leave time in

17 between meetings for subgroups that you might want to

18 form to work on particular issues. You might want to

19 start thinking about that early on, so if you want

20 multiple subgroups for multiple issues, you can form

21 them now and they can start working regularly. So

22 you've got to figure all that in. You have more
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1 knowledge than I would have of how much time they're

2 going to need, how technical the issues are going to

3 be, what kinds of things you might want them to talk

4 about. So if we want to schedule, we can schedule all

5 the way through August and try and see how many

6 meetings we can get in and get as much done as we can.

7 But we can also just schedule out for the next month or

8 so, two months if we want, to see what we can get done,

9 see how the schedule is working.

10 So in terms of the frequency of the meetings

11 -- let me put it this way first. Let's start with the

12 number of days. Do you want to try a schedule of every

13 two days, whenever we meet? So it's easier for people

14 who are coming in from out of town. Do you want to go

15 longer? Or is too much time to put in at any given

16 time, especially if you're going to agree to something

17 like every two weeks? To meet for three days and one

18 week.

19 MS. HOOTMAN: This is Jill Hootman from

20 Trane. I suggest maybe like, for those of us that are

21 traveling, not encompassing maybe a third or a fourth

22 day. So you know, if it's maybe starting at 10 am, and
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1 on the second day, finishing by 3:00, I think most of

2 us could catch flights that can kind of work with that,

3 and not encompass maybe a third or a fourth day. Having

4 to just switch flights.

5 MR. EISNER: Do you want to limit it to two

6 days?

7 MS. HOOTMAN: I want to limit it to two days,

8 maybe to start and the stop time on those two days. The

9 first day, maybe not starting till 10. Conceivably, I

10 can actually get a flight in and be here by 10:00. You

11 know, on the second day, maybe not going as late as

12 5:00. There are quite a few flights right at 5:00. So

13 like stopping at 3:00, would mean you could probably

14 like get to a flight by 5:00.

15 MR. EISNER: Okay. So that would give you

16 the neighborhood of about 12 hours in a two-day period?

17 MR. HON: Just a question. How early could

18 we use this room?

19 MR. EISNER: How early in the day?

20 MR. SACHS: Yes. Could we start at 8:00 in

21 the morning?

22 MR. EISNER: On the second day.
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1 MS. HOOTMAN: On the second day.

2 MR. HON: In the morning, to gain two hours.

3 MS. HOOTMAN: Good point.

4 MR. SACHS: Could we start at 7:00? I'm just

5 asking a question here. The earlier we start on the

6 second day, the more we get done. The less travel

7 expense, the less time out of the office.

8 MS. HOOTMAN: Yeah.

9 MR. COHEN: They're going to check on what

10 time is the room going to be open.

11 MR. EISNER: 8:00 a.m.? 8:00 a.m. is the

12 earliest we can get in the room. Is everybody

13 comfortable with those hours? 10-6, the first day, I

14 think you said. And then 8 a.m. to 3 p.m. on the

15 second day? All right. Let's start talking about

16 days. Assuming that we can get the other meeting, that

17 we've been talking about, set up sometime around mid18 May. Do you want to meet every two weeks?

19 MS. BARHYDT: Every three.

20 MR. EISNER: Every three weeks? Okay. Others

21 say two weeks?

22 MR. THARP: It's a fairly important issue.
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1 I'll put in as much time as needed to get it addressed.

2 MR. EISNER: Okay. Anybody got a third

3 alternative? How many people? A meeting every two

4 weeks. The other one would be meeting every three

5 weeks. Remember, we're going to talk about running

6 into a July 4th weekend or something. So it's not

7 going to be a perfect two-week schedule, or a three8 week schedule.

9 MS. BARHYDT: Is there a possibility of doing

10 in-person say every three weeks and then some interim

11 meetings, that aren't in person? I'm just thinking.

12 There's a lot of material on that list for us to be

13 covering.

14 MR. EISNER: Laura's proposing that we meet

15 by phone, or a combination of phone and web. You have

16 to think about looking at documents; looking at

17 drawings, whatever it is you might be looking at. Will

18 it be too hard for you? Yes?

19 MR. SHEBIK: What if we do it every two

20 weeks? Once a month in-person and then the next two

21 weeks, a webinar? Would that be possible?

22 MR. EISNER: I think anything's possible.
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1 It's whether you're comfortable with it for the kinds

2 of negotiations we're going to be having.

3 MS. HOOTMAN: The only thing that I -- I

4 mean, we've obviously seen people today, who really

5 haven't been able to communicate very well. I wonder

6 if we're having two days of dead space on a phone,

7 because we can't really -- we're having issues, or

8 echoes or whatever.

9 MR. EISNER: There's a variation this week.

10 We could schedule meetings every two weeks, and not

11 have them if they're not necessary, or if we can talk

12 about issues on the phone for a couple hours, during

13 what was the scheduled time, to get some things off the

14 table. We might be able to do that. I think the

15 important thing is to get the dates set on the

16 calendar, so facilities are better and the equipment is

17 available, you're available. Then if we don't have to

18 have them, we cancel.

19 MS. HOOTMAN: Right.

20 MR. EISNER: Do we want to try for them? No

21 less than once every month, but schedule meetings every

22 two weeks? All right. Do we want to go through the
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1 calendars now and put two weeks down? Do we want to

2 start on a Tuesday and go to a Wednesday? Is that

3 easier for people, than starting on a Monday, if you

4 might have to fly in the night before?

5 MS. HOOTMAN: Yeah.

6 MR. EISNER: So we start in on a Tuesday.

7 That would mean the 28th or 29th? Or we could do the

8 29th and the 30th of May? I have a problem on the

9 28th, because I teach a class uptown, at 6:00. I've

10 got to be up at AU.

11 MR. DOPPEL: Where are we talking the first

12 meeting being, the 13th and the 14th?

13 MR. EISNER: Well, we're trying to set up the

14 meeting that we said we would do in a couple of weeks,

15 the AEDM stuff.

16 MR. DOPPEL: Yeah. Okay. So that's the --

17 MR. EISNER: That way we're leaving them some

18 flexibility to get a facility. Because it's a short

19 time to get a facility and get an announcement out. I

20 think it'll be around the 14th, 15th, 16th, if things

21 go well.

22 MR. DOPPEL: I would think that the first two
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1 meetings might need to be in-person, rather than trying

2 to --

3 MR. EISNER: Okay. The first two meetings,

4 including the one in the middle of May?

5 MR. DOPPEL: Right.

6 MR. EISNER: Okay. So we're talking

7 approximately the 14th, 16th, sometimes in that range?

8 MR. DOPPEL: Right.

9 MR. EISNER: So we're saying the second

10 meeting could be sometime for a two-day period between

11 the 29th and the 30th.

12 MR. DOPPEL: Memorial Day is the 27th.

13 MS. HOOTMAN: Yeah.

14 MR. DOPPEL: Memorial Day's the 27th.

15 MR. EISNER: And then sometime in the 28th,

16 29th, 30th time frame. But, as I said, I have a

17 problem with Tuesday, having to be up at American

18 University by 6:00.

19 MS. HOOTMAN: Okay. So I've the 14th, 15th,

20 the 29th and 30th.

21 MR. EISNER: Can everybody do the 29th and

22 30th?
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1 MR. DOPPEL: Ah-hum.

2 MS. HOOTMAN: Yeah.

3 MR. EISNER: So the 14th, 15th is?

4 MS. ARMSTRONG: I think we're going to have

5 (inaudible) for that one. It will be that week. Two

6 days during that week.

7 MR. EISNER: All right. That would bring us

8 up to June 11th, 12th, 13th? So do we want to stick

9 with the Wednesday, Thursday, 12th and 13th? All

10 right. 11, 12?

11 MS. HOOTMAN: Can't do it.

12 MR. AMRANE: No. Not the 12th.

13 MR. EISNER: Do we want to go with the 13th

14 and 14th, because we'd be getting out early on Friday?

15 Do we want to go with the 13th and 14th, with the idea

16 that you get out early on Friday? Is that --

17 MR. SACHS: Another possibility might be to

18 do it the next week, since the last week of June, a lot

19 of people will be ASRAC.

20 MR. AMRANE: That's a good point. Yeah.

21 MR. SACHS: Just have one in June. At three

22 weeks.
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1 MR. HON: Well, there's also some meetings up

2 here. Atmosphere meetings, as far as flammable or

3 refrigerant meetings, the 18th and 19th. So I would

4 love if you --

5 MR. SACHS: -- do it the 20th and 21st?

6 MR. EISNER: I would love it.

7 MR. SACHS: It would be perfect.

8 MR. HOOTMAN: I would not be in-person. I

9 could do it on the phone.

10 MR. SACHS: The 21st is ASRAC. It goes right

11 into ASRAC.

12 MS. HOOTMAN: It goes right in there.

13 MR. SACHS: So I'd just literally fly to

14 Denver from here.

15 MS. HOOTMAN: Yeah.

16 MR. EISNER: The week of the 10th is out?

17 Are we saying the week of the 17th is out?

18 MR. AMRANE: If it was the first part of the

19 week, it would be okay. 17th, 18th.

20 MR. EISNER: I'm sorry. I didn't hear that.

21 MR. AMRANE: If it was the first part of the

22 week.
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1 MR. EISNER: Which week? The 10th and the

2 11th?

3 MR. AMRANE: The 17th and 18th.

4 MR. EISNER: Yeah. I would have trouble with

5 Monday.

6 MR. AMRANE: Okay.

7 MR. SACHS: Well, you just skip out at 5:00

8 and you can take the Metro up there.

9 MR. EISNER: It doesn't go up to where I go.

10 It's a long walk.

11 MR. SACHS: I'll loan you bike.

12 MR. MYERS: What happened to the week of the

13 10th? Okay. There were quite a few days you were

14 calling out on that.

15 MR. EISNER: What happened to what?

16 MS. HOOTMAN: The week of the 10th.

17 MR. EISNER: The week of the 10th, let's

18 start with --

19 MR. SACHS: The 11th would be fine for me.

20 The next week is a disaster.

21 MR. EISNER: Would the 10th and 11th work for

22 others?
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1 MS. HOOTMAN: I could do it.

2 MR. EISNER: Someone had a problem with one

3 of those days, on the 11th and 12th. Is it still a

4 problem?

5 MS. HOOTMAN: The 12th. He said 12th.

6 MR. AMRANE: The 12th.

7 MR. EISNER: The 12th is a problem? Is it

8 all day or --

9 MR. AMRANE: Yeah. I can do Monday the 10th

10 and 11th.

11 MR. EISNER: Somebody couldn't do the 10th

12 though. Right? You can't do the 10th? All day, or

13 could we start later? If we did the 10th and 11th,

14 starting at 2:00, instead of at 10:00, would that be

15 all right?

16 MS. HOOTMAN: Me, good.

17 MR. EISNER: Okay, the 10th and 11th. All

18 right. Now the progress report is due on the 28th. I'm

19 assuming that's going to have to be reconsidered in

20 terms of the agreements we're reaching here? Unless we

21 still feel we should get a progress report in by then?

22 MS. ARMSTRONG: This is Ashley. I think,
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1 from ASRAC's perspective, it would be important to (A)

2 if you come up with something the week of May 13th and

3 17th, on AEDM's, to get that back to them ASAP. We are

4 planning to meet in July, but we can schedule a meeting

5 prior to that. I do think at least some type of

6 progress. Maybe from the meetings on May 29th and

7 June, you've tackled another issue since then. So I do

8 think a progress report would be helpful. I would

9 consider doing one earlier, at the end of May, if you

10 do reach some type of consensus on AEDM's. Just to

11 move that process along as fast as possible.

12 MR. EISNER: All right. So the report may

13 still be due the 26th, but that doesn't mean we can't

14 meet that week. We can talk about the 24th and 25th. We

15 can talk about the 26th and the 27th. Or we can talk

16 about a combination of the 27th and 28th. Any

17 combination of days that work there?

18 MS. HOOTMAN: Are you back to May or June?

19 MR. EISNER: Pardon me?

20 MS. HOOTMAN: Are you back to May or June?

21 MR. EISNER: I'm in June. I'm sorry. I hope

22 I'm in June.
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1 MS. ARMSTRONG: This is Ashley. I'm guessing

2 the majority of you are not going to be here.

3 MR. SACHS: Is it possible to hold a meeting

4 at ASRAC?

5 MR. EISNER: The problem with skipping that

6 week is the next week is July 4th, which is on a

7 Thursday.

8 MS. HOOTMAN: Yeah.

9 MR. EISNER: Do we want to schedule a first

10 and a second meeting? Does that work for everybody?

11 MS. HOOTMAN: I guess.

12 MR. EISNER: Somebody who can't do it all

13 week?

14 MS. MEYERS: During the summer, there's going

15 to be at least one person gone every week.

16 MR. EISNER: So we have to have two negative

17 votes in to --

18 MR. SACHS: Breaking the rules again.

19 MR. EISNER: Are you comfortable having

20 somebody here to cover for you? Okay. 1st and 2nd?

21 That would take us to the 15th and 16th, 17th, 18th,

22 19th, any of those days. Shall we say Monday the 15th
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1 and Tuesday the 16th?

2 MR. MYERS: How about 16, 17?

3 MR. EISNER: Did you say the 16th and 17th,

4 or the 17th and 18th?

5 MR. MYERS: Yeah. Just so we're not

6 traveling on a Sunday.

7 MR. EISNER: Okay. 17th and 18th? Leave

8 early on Thursday. That takes us down to the end of

9 July. I want to do the 31st and the 1st? Is that

10 okay? We can go back over these, just to be clear.

11 31st and the 1st.

12 MS. HOOTMAN: I may have to send somebody for

13 that one. He was in room till just a second ago.

14 MR. EISNER: All right. Do we want to go

15 beyond July? I'm talking three full months.

16 MS. HOOTMAN: Get it on the books.

17 MR. DOPPEL: Did we have a second date in

18 June?

19 MR. EISNER: I'll go back over all the dates.

20 MR. DOPPEL: No. Just one set because of

21 ASRAC and holidays.

22 MR. MYERS: Do you want to go ahead and pick
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1 one day in August, just so we have one?

2 MR. EISNER: Just one day?

3 MR. MYERS: No. I mean one meeting.

4 MR. EISNER: One meeting? I start to run

5 into problems doing it in the middle of the month,

6 which is where we'd be next. I could do it -- do you

7 want to go toward the end of the month? Or do you want

8 to go very early in the month and just have a week

9 between meetings? I'm fairly confident I could do the

10 week of the 5th, and I'm not positive on the 12th and

11 the 19th.

12 MS. BARHYDT: Let's do the week of the 5th.

13 We're going to end up getting up against the end of the

14 money. We need to be resolving things.

15 MR. EISNER: Yeah. That's why I didn't

16 schedule anything. I didn't worry about scheduling in

17 that month. 8th and 9th.

18 MS. MEYERS: Of August?

19 MR. EISNER: Of August.

20 MS. MEYERS: How about 7th and 8th?

21 MR. EISNER: 7th and 8th? Okay. Let me,

22 quickly, go over what I ended up with and see if we all
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1 agree. I have us meeting -- we're going to meet

2 sometime in the middle of the month. Did Ashley say we

3 had a date set for that?

4 MS. ARMSTRONG: It's going to be the week of

5 May 13th through 17th, for two days.

6 MR. EISNER: That's what we're assuming?

7 MS. ARMSTRONG: Yeah.

8 MR. EISNER: So I have us down as May 29th

9 and 30th. Then I have us down meeting -- we're in June

10 now, on the 10th and the 11th. Then on July 1st and

11 2nd.

12 MS. MEYERS: Am I the only one that can't

13 make July 1st and the 2nd?

14 MS. ARMSTRONG: Are you sure?

15 MS. MEYERS: That's 4th of July week. Am I

16 the only one that's affected? I guess so.

17 MS. HOOTMAN: Don't worry. We'll get to

18 another date that I'm affected. So it's okay.

19 MR. EISNER: We have no life. Then in July,

20 we have the 17th and 18th; the 31st and the 1st of

21 August; and then the 7th and 8th of August.

22 MS. HOOTMAN: There's three in July.
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1 MR. DOPPEL: Yeah. There's three in July.

2 MR. EISNER: It just happens to work out that

3 way.

4 MR. DOPPEL: Can you go over those again?

5 MS. HOOTMAN: I know. And the very last

6 one.

7 MR. EISNER: All right. Sometime in the

8 middle of May, the week of the 13th, we're going to

9 have our first full meeting. Then the end of the

10 month, the 28th -- I mean, the 29th and the 30th, we're

11 going to meet. Then in June, we're going to meet on

12 the 10th and the 11th. We're starting at 2 p.m. on the

13 10th. Then we're going to meet on July 1st and 2nd.

14 MR. DOPPEL: On the 10th, Karen, you don't

15 mind if we start without -- really?

16 MS. MEYERS: Yeah. I mean -- I gave an

17 answer. I didn't realize your question.

18 MR. DOPPEL: Because start at 2, like

19 nothing's going to get done.

20 MS. ARMSTRONG: We'll be here till 10.

21 MR. DOPPEL: We'll get thrown out of here

22 till
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1 10:00.

2 Karen, you're only going to miss like two

3 hours of the meeting. They're going to break for

4 lunch.

5 MR. EISNER: Yeah.

6 MR. DOPPEL: You can listen on the web, while

7 you're on the plane.

8 MR. EISNER: All right. Then I've got us down

9 for July 1st and 2nd; July 17th and 18th; July 31st and

10 August 1st; and August 7th and August 8th.

11 MS. BARHYDT: Given that we have to have the

12 report, I think it would be a good idea to schedule

13 some additional time in August.

14 MR. EISNER: The problem is we're not going

15 to make August 30th, if we cover AEDM. That's what I'm

16 understanding we're hearing.

17 MS. BARHYDT: So we're not going to try to

18 meet?

19 MS. ARMSTRONG: We still have to report to

20 ASRAC.

21 MS. BARHYDT: ASRAC one way or another.

22 MR. EISNER: No. I understand that.
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1 MS. BARHYDT: Do you want to schedule another

2 day now?

3 MS. ARMSTRONG: Ah-hum.

4 MS. BARHYDT: I'd just as soon get it on the

5 books. You can always cancel it.

6 MR. EISNER: No. The week of the 26th?

7 MS. ARMSTRONG: That's the week before.

8 When's our report day? The 30th?

9 MR. EISNER: The 30th.

10 MR. DOPPEL: 21st and 22nd?

11 MR. EISNER: I just don't know if I'm going

12 to be around. I was making the assumption that the

13 report's due the 30th. There are not going to be any

14 meetings at the end of the month. I don't know how

15 you're going to get a report done, agreed to by

16 everybody, if you're still having meetings. That's the

17 problem.

18 MS. BARHYDT: I guess I was thinking more

19 like hashing out any details that were left to -- like

20 if the basic frame work's there, but people still want

21 to discuss. Just having a meeting there, so that

22 there's some placeholder for people to discuss any
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1 lingering issues.

2 MR. EISNER: We can do that on the last week

3 then, if the reports are already out in draft.

4 MR. DOPPEL: Can I ask a question? Who

5 actually is going to prepare all this, the reports and

6 all that information?

7 MR. HON: I vote for Paul.

8 MR. EISNER: All those in favor of Paul?

9 MR. LIN: It's a consensus.

10 MR. EISNER: Okay. There's no negatives.

11 It's unanimous.

12 MR. DOPPEL: It's not 100% consensus.

13 MR. EISNER: Dan, you want to see how it was

14 done in the last Committee? What they did with the

15 report and everything?

16 MR. COHEN: Sure. The deal, we put together

17 most of the paperwork. Actually, the facilitator, I'm

18 sure they did the report.

19 MR. COHEN: I'll take it with me. Yeah.

20 We'll get done in July.

21 MR. EISNER: We'll get done in July.

22 MR. COHEN: I think if anything in terms of a
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1 meeting and then a follow-up result from that meeting,

2 and then circulating it for people to look at. I don't

3 think you can work the last couple of weeks. I'm still

4 discussing things but I think you can draft a report,

5 get it around to everybody, and then sit down and talk

6 about it, or talk over the phone about, "I want this

7 word changed; or that sentence deleted" kind of a

8 thing. But you can't write a major report like this,

9 especially as complex as this. Especially with

10 somebody like me, not understanding all the details and

11 needing input from others. You can't write this in the

12 last week or so.

13 MR. DOPPEL: Well, do we need a couple of

14 days' meetings to review what's been done in person?

15 MR. EISNER: Well, you know, we scheduled --

16 we've already scheduled 1, 2, 3, 4, 5, 6, 7 -- we will

17 have scheduled 8 meetings. Based on experience in the

18 past, I was told to estimate 4-6 meetings, two days

19 each. So we're way beyond what had happened in the

20 last negotiated rulemaking.

21 So the question is, if we're going to need a

22 lot of meetings, more than normal, are we going to be
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1 able to get it done by the end of August? I think

2 Laura was right. We've got to make every effort to do

3 that. I've already scheduled a lot of meetings. Now

4 we're taking a couple of hours out of each end. We

5 could add another day in.

6 MS. BARHYDT: We could always cancel. I

7 think it's just reserving the time.

8 MR. EISNER: That's what I'm saying. Do we

9 want to schedule one for the 26th and 27th?

10 MS. MEYERS: We're not doing the 22nd or --

11 MR. EISNER: I have to check and see if I

12 made plans for that. I did check to look at the

13 schedule. I talked to DOE about what they would expect

14 happening, and we agreed that I could go ahead and

15 plans. Because we're trying to figure out when, during

16 the summer, to do it, and that was the best time.

17 MS. BARHYDT: I think the 26th, 27th.

18 MR. EISNER: I'm not sure if I can do those

19 dates in there. I may be away for 7, 8 days.

20 MS. BARHYDT: I mean, if we did 26, 27 for

21 final read-through review, of any lingering wording

22 issues.
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1 MS. BARHYDT: And I can go back and find out

2 what we're doing, in terms of exact time. I we can do

3 it earlier, we can try to do it earlier.

4 MR. STOTNIK: Or if the meeting is like

5 you're describing, we may be able to do in the day. If

6 we're optimistic -- if the working group's optimistic

7 and, in fact, they are successful, that last meeting --

8 I don't know. Look over an important mailing a day,

9 because everybody is high enough who's there, kind of

10 thing.

11 MR. EISNER: Okay.

12 MR. AMRANE: If we plan for two, we can

13 always kill one day. It's hard going the other way.

14 MS. BARHYDT: Then the other thing is that

15 it's probably a good idea to put something on the

16 schedule in September, after ASRAC has met, in case

17 they have any questions. So that we already have some

18 time set aside to deal with any issues that come up, as

19 a result of ASRAC. When is the ASRAC meeting.

20 MS. ARMSTRONG: It hasn't been schedule

21 officially yet, but we were targeting mid-September. If

22 you pick the end of the month, beginning of October,
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1 you're probably good.

2 MS. BARHYDT: So I can tell you that I am

3 leaving town the 28th of September and I will be gone

4 the first week of October.

5 MS. MEYERS: The 26th would work well for a

6 lot for a lot of things.

7 MR. EISNER: Yeah. I didn't even bring a

8 calendar out that far.

9 MS. MEYERS: The 26th is a Thursday.

10 MR. EISNER: When you going to be gone?

11 MS. BARHYDT: I think I leave on the 27th or

12 28th. So I'll be here on the 26th.

13 MR. EISNER: So just one day? September

14 26th? Okay. Everybody have fun today?

15 MR. SACHS: No.

16 MS. BARHYDT: And then are we going to "meet"

17 the email, to resolve the remaining issues, or were we

18 going to deal with those at the first meeting in May?

19 MR. EISNER: There's 17 minutes left.

20 MS. BARHYDT: We're going to do them now.

21 Okay.

22 MR. EISNER: We can do them now. Does
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1 everybody want to try to resolve the remaining issues,

2 based on where we are in scope and everything like

3 that? Recognizing that the ground rules are going to

4 have to be modified.

5 MS. BARHYDT: We haven't actually voted on

6 the scope. We did our brainstorming list, but we never

7 actually discussed and voted on that.

8 MR. EISNER: I think the outstanding question

9 to you was assuming that you accepted all of these

10 issues, what could we do about such and such? Are you

11 willing now, based on the agreement to add the AEDM

12 rulemaking to this? To accept those all within the

13 scope? Do you want to modify them in any way?

14 Some of them are written very broadly, and I

15 don't know exactly what all would be entailed. Like

16 "built to order equipment." I know some of the

17 certification and testing issues for "built to order

18 equipment," but that's a very broad bullet point. Down

19 at the very bottom.

20 MS. ARMSTRONG: So I think that would be

21 specific --

22 MS. BARHYDT: Yeah. The testing procedures,
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1 in our view, would not be within the scope. We would

2 normally deal with those three specific rulemakings for

3 test procedures.

4 MR. EISNER: You sent out this list, so we

5 can get it better, and perhaps help you with it?

6 MS. BARHYDT: Yeah. I'll do that.

7 MS. ARMSTRONG: We can vote on it at the next

8 meeting. People can think about it. Look at it.

9 MR. EISNER: Maybe what you can do it edit

10 it. Get it. Edit it.

11 MS. BARHYDT: And send it around.

12 MR. EISNER: -- where your question were and

13 people can send it back to you with further

14 explanations.

15 MS. BARHYDT: Additional details?

16 MR. EISNER: May resolve the difference. If

17 DOE can accept this list, with answers from the people

18 who suggested them, that satisfy them, that they're

19 okay. If DOE can accept it, would anybody else have an

20 objection to it, as being a part of the scope?" All

21 right. So why don't you try to get satisfactory

22 answers and then notify the group, based on what you've
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1 learned, with modifications as necessary, that are

2 acceptable to the suggester. Here's the list. Now,

3 with that good mood, go back to your ground rules. Take

4 a look at 4e, d, e and f. Valorous options. They

5 could all come out. They could all stay in. They could

6 be modified.

7 MR. SACHS: Just to start -- this is Harvey.

8 And just to start things, I would move that we delete

9 C, D, and E.

10 MR. EISNER: And can I ask you why you'd

11 leave F in? You're going to leave --

12 MR. SACHS: Just a sense that there may be

13 more people who have concern about F, than C, D, and E,

14 and this might be a good place to get the log rolling.

15 MR. EISNER: Okay. Comments?

16 MR. MYERS: This is Frank Myers, PBI. I

17 concur. In fact, I would include F, but not just

18 delete them all. I think there ought to be something a

19 little like the second half of E, and that is a

20 Statement of General Support, that it is the intent of

21 the Committee -- not necessarily the individuals of the

22 Committee -- of the Committee, the 90% or 100% -- to
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1 support, to actively support what we're proposing. So

2 that if we're challenged, we'll help DOE; we'll talk to

3 our politicians. What we need to do, to support

4 whatever we come out with, as a Committee. So I would

5 propose removing all of those, on the screen, and

6 replacing it with a much more simple statement. That

7 the Committee will support any action that we take. Any

8 consensus action that we take.

9 MR. SACHS: Neil, in sort of quasi-Roberts,

10 sense I happen to agree with Frank, but I still think

11 we might be better off doing it stepwise, and taking --

12 MR. EISNER: Looking at the first three?

13 MR. SACHS: Take the first three, and then

14 pick up where Frank was.

15 MR. EISNER: Does anybody object to --

16 MR. MYERS: -- why you wanted to keep it.

17 That's fine.

18 MR. EISNER: Does anybody object to removing

19 C, D, and E? Laura does.

20 MR. SACHS: We outvoted her.

21 MS. BARHYDT: I guess I don't understand the

22 earlier comments about the -- the statements are not
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1 legally binding and they're really more statements of

2 intent. But at the same time, they are a reflection of

3 a commitment to the process and to support the process

4 and to support the consensus decisions that are made

5 through all of these meetings. And so I guess I just

6 wonder is deleting them an indication that people are

7 saying, "Well, I am going to participate in this

8 process and I'm going to negotiate in good faith and

9 we're going to reach a consensus. But I still want to

10 hold that in my back pocket. At the end of the day, I

11 might just change my mind and file adverse comments, or

12 sue." It makes me wonder why people wouldn't want to

13 have those in there. Why wouldn't you want all of the

14 other people sitting around the table, to say, "I'm not

15 going to undermine your work, sitting at this table"?

16 Why wouldn't you want everybody sitting here to make

17 the same commitment to stand up for the rule, at the

18 end of the day?

19 MR. EISNER: Yes?

20 MR. MYERS: The reason that I was wording

21 that the way that I did, that the Committee will

22 support any consensus, based on our vote," that's not
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1 having more than two negative votes. We will actively

2 support that, so we are agreeing, what that does is it

3 gets all the, "Yeah, but what about somebody who voted

4 'no'?" So were saying, "Yes, we are going to support

5 our consensus work, but if somebody voted 'no,' we

6 weren't able to come up with a way -- Based on our

7 earlier conversation, if it's put in the preamble, or

8 the introduction to the document, it's not the same as

9 making a response during the rulemaking. They were

10 "no" in this Committee, so they were not a satisfied

11 party. They still have their rights. But even with

12 that, the other 90%, or 100% if we have unanimity, are

13 saying, "We'll support it." So I think it will be very

14 difficult for us to workout the details of exactly how

15 a negative voter is going to retain their rights.

16 MR. EISNER: Would it help you if the goal,

17 in the first paragraph, number 1, had a second sentence

18 to the effect that -- first it's an objective to

19 develop the standard in a way that would be supported

20 by the members of the group? Something along the --

21 either a first sentence add-on or a second sentence.

22 "The objective or the goal is to develop something that
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1 could be supported by the group -- fully supported by

2 the group," or something along those lines. Without

3 getting into whether that restricts them from filing

4 negative comments, no adverse action. It's their goal,

5 their objective, to get a rule that they could fully

6 support.

7 MS. BARHYDT: It's not quite the same thing.

8 I guess I would ask Harvey why do you want to delete

9 them?

10 MR. SACHS: Harvey recommended the deletion

11 because of a general sense that it was causing a fair

12 amount of heartburn around the table, and that it

13 didn't really add to the commitments people were making

14 in their time, effort, corporate costs and everything

15 else. So my sense for listening was that it was

16 getting in the way. I certainly understand your

17 objectives. I liked Neil's thought of making that

18 supportable consensus part of the goal. And I think

19 that's a much stronger statement in this. I'm all

20 onboard with what Frank and Neil have said.

21 MS. HOOTMAN: I mean, I think you could take

22 those words, up there, now we're off that paragraph.
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1 But you could almost put "Good faith." "We come in

2 good faith."

3 MS. BARHYDT: Right.

4 MS. HOOTMAN: You know, but I think that we

5 can't take away the right of somebody who is a negative

6 consenter, and their right to become -- to have

7 consenting comments.

8 MS. BARHYDT: So given the other idea, which

9 was floated, which was to flip it on its head and to

10 say that the members of the working group will support

11 the consensus recommendation, is that going to have a

12 caveat then, that says that, "except to the extent that

13 they dissented"?

14 MR. EISNER: I think that's a simple

15 statement. That's your objective. They achieved

16 consensus but they can argue that they didn't reach

17 their goal of getting something they could fully

18 support. And again, I want to point out, we all are

19 looking at Laura, to see if she agrees with this. We're

20 picking on Laura, today. We'll be picking on Laura all

21 summer, I think. Remember there are two sides to all

22 of this, in terms of good faith. So DOE says, "Okay.
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1 I didn't like this, and I didn't like this, and I

2 didn't like this. But I'm issuing it as a final rule

3 because it was the consensus of the group." Then

4 somebody on this group sues DOE and DOE goes into court

5 and settles with the other side by agreeing to withdraw

6 that final rule, terminate that final rule and issue a

7 new one. Would you be upset with DOE for not supporting

8 the consensus agreement? Somebody else on this group

9 sues and challenges it, and they go -- these are the

10 kinds of things.

11 Again, I don't want to overstress it. The

12 subtle little things. The subtle little effects.

13 Somebody on the group sued us, and the whole group

14 agreed that they had the right to sue us and we think,

15 "You know what? They pointed out some good problems."

16 The Justice Department comes back to the DOE and says,

17 "You know, we might lose this." Would that be the

18 difference between DOE saying, "We have to defend it.

19 We were part of a consensus agreement?" Versus, "Okay.

20 Somebody in the group sued us. The group didn't have

21 any problem with that happening. Therefore, we have to

22 give up our defense of this lawsuit, because the
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1 Justice Department advised us they had a good argument.

2 Those are subtle things. I'm not trying to argue one

3 side or the other. I just want to make sure you're

4 balancing them in the way that you look at all of this.

5 MR. SACHS: Harvey. We're all sitting here,

6 at the same time, recognizing there are major players

7 who are a part of groups, but re not at this table.

8 People who sell a whole bunch of units every year.

9 Karen's not responsible for what they did. So this is

10 ABC, or Motherhood and apple pie. They're in no sense

11 as this statement here.

12 MR. EISNER: I think that's a good

13 compromise, otherwise I wouldn't have suggested it,

14 obviously. Again, here's, in some respects, no

15 difference between the situation you're talking about,

16 where she represents somebody who she can't control.

17 She can't control the Justice Department. How hard

18 does she fight back. A good fight. Good terms.

19 MR. SACHS: Yeah. But did somebody else not

20 exercise good faith, because she didn't twist

21 somebody's arm to get them to not sue.

22 MR. EISNER: No one can resist Karen's arm.
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1 MR. SACHS: She's probably going to miss the

2 key meeting now. What happened?

3 MS. MEYERS: I'm the only one where we blew

4 by all the objectives. I just want you to know that.

5 If anybody else has an objective, we adjust it. Not

6 me.

7 MR. EISNER: Considering your best --

8 MS. MEYERS: It's noted, for the record.

9 MR. EISNER: Considering your best

10 alternative, right now, you're okay with it? Is

11 everybody okay with that language?

12 MR. BAUM: Can I just throw in there too?

13 MR. EISNER: Oh, no. No.

14 MR. BAUMAN: Any easy way to strengthen this

15 for Laura. A real simple is objective is to build a

16 recommendation that will be fully supported by the

17 entire working group. I think that's stronger wording

18 to your point.

19 MR. EISNER: Acceptable everybody?

20 MS. BARHYDT: Yes.

21 MR. EISNER: It's a goal. You can't control

22 everybody in your interest group. Okay. So we take
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1 out C, D, and E. How about F? No challenge and we can

2 go home. What do we do with F?

3 MR. HATZIKAZAKIZ: I have a question about d.

4 MR. SACHS: Too late. Too late.

5 MR. HATZIKAZAKIZ: It's up to you how fast

6 it's going to be. Why do you want d out?

7 MR. SACHS: It's just part of the package.

8 MR. STATONIK: Frank Statonik. I came up and

9 I sat down because you agreed. D has to do that,

10 regardless of whatever happens here or anyplace else.

11 It is their obligation, in any rulemaking, to consider

12 all relevant comments. That's motherhood. And from

13 the perspective of C and E, it puts constraints on what

14 people can do. I'll be a little crude here. All D is

15 offering, in fact, is what they have to do anyhow.

16 MR. SACHS: So it was just redundant and it

17 was just inelegant to have redundancy.

18 MR. EISNER: Yes, and no. I had raised it,

19 earlier and I don't think we've addressed it. It's

20 been a long day for all of us. But I'd raised the

21 possibility that this group would decide if it wants to

22 be reconvened to consider the comments. Not to read
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1 them all, but have the agency prepare the normal

2 summary they would prepare. You read them and you say,

3 one of a number of things. "I don't believe they

4 warrant any changes" or "they do warrant changes, and

5 they should be made," or some other thing, that I'll

6 leave up to you.

7 Do you want to be able to see what would have

8 resulted from d before the agency does what it's

9 required to do with those comments? And again, it can

10 be very informal. My experience is it's done by email.

11 "Here's what we got. Here's the summary. We'll have a

12 telephone conversation, three days from now, to decide

13 what to do." Do you want something like that added?

14 Yes?

15 MR. STATONIK: That's quite a clarification.

16 This is a working group of ASRAC. All the working group

17 has asked -- I'm sorry. All ASRAC has asked the

18 working group is to come up with a recommendation. The

19 idea that the working group would then become a second

20 check of how d responses to an over-comment. It seems

21 to me that's got to go through ASRAC.

22 MR. EISNER: Was ASRAC's language worded so
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1 that it precluded this? Or did it just say, "We want

2 your recommendation? It ought to be in a rule?"

3 MS. ARMSTRONG: It asked for a

4 recommendation.

5 MR. EISNER: Say that again?

6 MS. ARMSTRONG: It asked for a

7 recommendation.

8 MR. EISNER: It should be in a rule. It

9 didn't say a proposed rule, or a final rule, as I

10 recall. But I'm not positive.

11 MR. SHEBIK: We have sent them some other

12 proposals. I don't think it's a severity.

13 MR. EISNER: Okay. So we could put that in

14 there and double-check with ASRAC as to what they want.

15 It's up to you whether you want to be involved, because

16 DOE has to make decisions sometimes. They raised a

17 good point. "They said 1 plus 1 equaled 3. It doesn't

18 equal 3. We've got to make a change. Do you want the

19 opportunity to come back and say you can prove it

20 equals 3?" You don't care? You do care? All those

21 who would like to have an opportunity to review the

22 final rule before it goes out?
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1 MR. SHEBIK: One second. A point of

2 clarification. There was two different things you said

3 there. One was the final rule. The previous was the

4 comments.

5 MR. EISNER: I was just about to clarify

6 that. Is you're going to have an opportunity to review

7 the comments and decide whether changes are warranted.

8 The agency may way, "We recommend making these changes.

9 Do you agree?" Or something along those lines. A

10 very informal process. The question is, number one, "Do

11 you want to see that?" And number two, do you want to

12 see the final rule changes, if any are made. If no

13 changes -- and that's usually the way it goes -- in my

14 experience, there's no need for you to see the final

15 rule. It's essentially going to be the same text, as

16 the proposed rule.

17 MR. SACHS: I don't quite understand. Is the

18 question whether the group wants to see the final rule.

19 Because it's going to be posted and we'll all see it.

20 MR. EISNER: I'm talking about Dan's office

21 reviews the comments. They summarize them. Before

22 they go to draft to final rule, they reach certain
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1 conclusions. They then come to you and say, "Here are

2 the comments we received. Several good points were

3 made. Do you think they warrant changing the proposed

4 rule, as it was written?" Everybody says, "No. No

5 changes are warranted." The Department of Energy

6 agrees with that, they go out with the same rule text.

7 MR. THARP: Basically, it's the Committee

8 commenting on the comments.

9 MR. EISNER: Yes. Because it may warrant a

10 significant exchange. Do you want to be involved in

11 that significant change? Dan did you want to add

12 anything, besides the fact that you won't be drafting

13 the final rule?

14 MR. COHEN: No actually, it was just a point

15 of clarification. It will be Ashley who will actually

16 be responding to the comments.

17 MS. ARMSTRONG: Okay. Yes? No? You want to

18 add something to the ground rules in it? Or do you

19 just want to look at the proposed rule? It seemed like

20 most of the people in the room wanted to look at the

21 summary of the comments, and make a recommendation of

22 what ought to be done. It would have to go through the
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1 whole ASRAC.

2 MR. SACHS: Why don't we try that and see how

3 it goes.

4 MR. EISNER: Okay. That's fair enough.

5 Okay.

6 MR. SACHS: On f, it's a matter of policy.

7 The organization I work for does not litigate, so I

8 really have no dog in that fight. That's one reason I

9 left it out of the original motion.

10 MR. EISNER: Harvey, that was f, you were

11 talking about?

12 MR. MYERS: In looking at f again, I can see

13 some real benefit to a number of parties for having

14 something in there. If we're going to negotiate that

15 we don't immediately start looking for something

16 different, the day after we finish this meeting, or the

17 day after it's adopted. So I think having (f) in there

18 probably does have merit. However, based on the

19 conversation we've had, I would probably suggest

20 changing each part agrees to say, "Each party, except

21 negative commenters are all -- "All parties voting yes

22 agree," so that we're not taking rights away from those
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1 who disagree with us.

2 MR. EISNER: Thoughts? Comments?

3 MR. MYERS: Perhaps putting that in the pause

4 and say, "Each party voting 'yes'" --

5 MR. HON: Charlie Hon. Here we go with it.

6 I think that up above, we went "Only those with

7 negative votes would be up there," so why wouldn't we

8 stick with that?

9 MR. EISNER: Keep the same language?

10 MR. HON: That's my opinion, yes.

11 MS. BARHYDT: Just a wording issue. Where it

12 says, "Take a position materially, in consistent with

13 the standard or determination, it should be

14 inconsistent with the proposed regulation or the

15 recommendation" something along those lines.

16 MR. BALLO: And the next line down, it says

17 the same thing.

18 MS. BARHYDT: On that second one, take out

19 the "proposed."

20 MR. CYMBALSKY: Given the five-minute

21 warning. They've given us 10 minutes to clear the room.

22 MR. EISNER: Okay. Deadlines help the
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1 consensus.

2 MR. CYMBALSKY: As many as five minutes.

3 MR. EISNER: Is everybody okay with this?

4 MR. BALLO: There was one other place in

5 here, and I forget where exactly. But Laura had

6 mentioned it earlier we should postpone talking about

7 it until we decided this issue of the F paragraph. I

8 don't remember where it was. It was further up.

9 MR. EISNER: Do you remember where it was,

10 Laura?

11 MS. BERHYDT: No. I don't.

12 MR. THARP: We'll receive a copy of this and

13 then take it to the next meeting.

14 MR. EISNER: We can do that.

15 MR. COHEN: You could also vote on this, and

16 then if there's some other issue that comes up, some

17 technical thing, subject to a vote to the Committee on

18 style, cleaning up. The Committee on style is going to

19 have to look at this closely, anyway.

20 MR. EISNER: Yeah.

21 MR. COHEN: Things like working group and

22 subgroup.
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1 MR. BAUM: Look at the schedule. This is

2 Jeff Baum, from National. If we end up needing an

3 alternative, now that we've looked at the schedule and

4 get back and look at our calendars. If we need to have

5 an alternate, do we need to notify DOE ahead of time?

6 Or how do we go about that?

7 MR. EISNER: I suggest we vote in agreement

8 with what we've amended. We will look at it, as Dan

9 said, Committee on style. You'll obviously have a

10 chance to say, "Hey, we missed something," and we'll

11 talk about it. But let's hope that what we send out

12 will be okay with everybody.

13 MS. BARHYDT: (Inaudible).

14 MR. EISNER: I can't remember, if that after

15 or before the final rule goes out?

16 MR. COHEN: You just want to know if it's

17 after or before you get paid?

18 MR. EISNER: I do want to say that I don't

19 have any problems with any of you calling me or

20 emailing me. If you have any suggestions, whether I'm

21 doing it right or wrong, or how I can help you in

22 different ways. Remember, if you've got discussions
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1 you want to have with your members of your affected

2 interest group, I'd be glad to help, if there's any way

3 can do that. Thank you. I think this was a very good

4 meeting.

5 (Whereupon, the committee meeting was

6 concluded at 5:18 p.m.)

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1 60:1 82:17 95:12

225:14 226:19

321:16 330:17

338:17

10 110:14 123:16

192:2 224:20

243:22 301:22

302:9 317:20

342:21

10:00 302:10

311:14 318:1

100 90:9 92:2

95:22 96:10

101:19 102:4

103:22 104:8

105:9,22 106:14

109:1 110:9

134:8

100% 166:10

320:12 327:22

330:12

1000 1:11

10-6 303:13

10psi 234:16

10th 309:16

310:1,13,16,17,2

1

311:9,11,12,13,1

7 316:10

317:12,13,14

11 196:15 308:10

11th 308:8

310:2,19,21

311:3,10,13,17

316:10 317:12

12 302:16 308:10

12,000 26:10 42:1

120 215:22 232:15

233:1

12th 308:8,9,12

311:3,5,6,7

315:10

13th 296:17

297:7,8 306:12

308:8,9,13,15

312:2 316:5

317:8

14th 296:17

297:7,9

306:12,20

307:7,19

308:3,14,15

15 10:20 51:2

100:21 112:7

116:10

126:18,22

127:1,4,15

135:12,14

137:2,10,13,14,1

7 138:2 140:10

209:13 291:5

15th 297:9 306:20

307:19 308:3

313:21,22

16 314:2

16th 306:20 307:7

313:21 314:1,3

17 314:2 324:19

17th 309:17,19

310:3 312:3

313:21 314:3,4,7

316:5,20 318:9

18 69:17

18th 309:3,19

310:3 313:21

314:4,7 316:20

318:9

19th 309:3 313:22

315:11

1st 264:20

266:9,17 313:20

314:9,11

316:10,13,20

317:13 318:9,10

2

2 17:4 28:12 65:11

72:6,14 82:17

85:7 87:13 165:9

246:4 317:12,18

321:16

2:00 311:14

2:31:02 127:17

20 19:18 118:9

138:8

2007 250:19

2010 250:20

251:12

2011 227:20

2013 1:14 146:6,10

147:14 151:3,11

251:14

20585 1:12

20th 309:5

21st 309:5,10

319:10

22 75:14 109:11

22-1/2 121:11,19

22nd 319:10

322:10

23 109:1 121:20,22

2-3 294:12

24 75:12 89:7,15

92:15 93:15

95:12 109:1

153:4

24th 312:14

25 33:13,15,19

48:21 75:7 81:18

108:22 109:13

112:6 119:21

121:6,7,11,15

124:3,17 218:18

25,000,000BTU

239:11

25th 312:14

26 81:22 322:20

26th 312:13,15

319:6 322:9,17

324:5,9,12,14

27 322:20

27th 307:12,14

312:15,16

322:9,17 324:11

28th 306:7,9

307:15 311:18

312:16 317:10

324:3,12

29th 306:7,8

307:11,16,20,21

312:6 316:8

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2D 132:18,19

198:19 208:19

2F 120:10

2nd 313:20

316:11,13

317:13 318:9

3

3 87:14 303:14

321:16

338:17,18,20

3:00 302:1,13

30 1:14 28:11

30th 146:6,10
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204:13 257:9

271:1 285:18

306:8

307:11,16,20,22

316:9 317:10

318:15

319:8,9,13

31st 146:21 147:3

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316:20 318:9

340360 250:19

3A 134:1

4

4 95:6 219:11

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43 14:20

431 243:22

4-6 321:18

4A 152:1 154:10

4C 200:9

4e 327:4

4th 304:6 313:6

316:15

5

5 219:1,2 321:16

5:00 302:12,14

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5:18 345:6

50 17:4 47:11

500 16:6

5th 315:10,12

6

6 220:17 321:16

6:00 306:9 307:18

60 25:17

6C 225:11

7

7 140:11,13 321:16

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70s 256:8

75 88:5 89:8,13

96:3,6,14,15,16

97:20 102:9,19

116:19 189:6

7th 315:20,21

316:21 318:10

8

8 140:10,13 303:14

321:17 322:19

8:00 302:20

303:11

80 90:2,3 96:15

97:9,20 102:10

83 97:10

8-30-13 146:9

85 97:12,20 100:20

104:3 105:18

106:2 107:6,22

109:4 110:6

118:19 234:22

88 109:5,11 110:6

112:20

122:13,14,17

8th 315:17,20,21

316:21 318:10

9

9:02 1:15

90 100:5 102:21

105:18 106:3

109:4 110:22

112:19 116:22

117:4,7,15,19

118:3,5,10,18,20

119:1,12

120:17,22

121:1,2,5,7,11,1

4,17,19 122:1

123:4,6,11,14,15

124:8 147:17,18

246:10

90% 246:9 327:22

330:12

92 109:1

95 100:5 246:10

95% 246:8

96 109:1 240:3

9th 315:17

A

a.m 1:15

303:11,14

AAON 2:16

ABC 334:10

abilities 256:13

ability 89:6,19

92:4 95:8 182:3

231:9 255:6

278:13

able 30:14

33:20,21 40:7,11

53:22 79:5 85:16

89:15 102:2,7,12

113:5 114:2

116:4 117:11

143:21 170:8

172:15,16,18

183:20 208:20

217:16 228:15

234:2 241:7

254:10 270:17

274:12 296:7,9

305:5,14 322:1

323:5 330:6

337:7

ABMA 238:19

239:11,14 240:1

abortion 33:7

absences 120:19

absent 128:3

absolutely 149:6

160:15 194:2

216:12,14

absorb 294:5

abstain 49:19

94:21 95:3,5

111:5 112:2

124:6

202:16,17,20

203:11,14,22

204:6,8

abstained 127:14

abstaining 121:4

abstention 110:1

111:11 119:8

120:8 125:12

128:5

abstentions 49:21

109:21 110:21

111:3,17 116:18

117:1,5

118:6,9,15,17

119:13 120:19

122:8

accept 49:15,18

63:13 88:5
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100:14,15 101:2

113:16 163:20

166:6 192:21

272:9 296:8

325:12

326:17,19

acceptable 64:14

80:16 184:4

196:9 248:13

268:19 327:2

335:19

Acceptance

231:15

accepted 325:9

access 12:8

32:19,20 40:8,10

accidents 26:6,11

accommodating

297:16

accomplish 100:3

accomplished

266:12

accordance 37:3

158:21 229:15

231:10 241:12

according 73:15

account 92:19

accurate 215:6

228:16 268:4

346:7

accurately 237:15

ACEEE 198:17

299:3

achieve 43:7,13,20

56:21 68:3 69:20

70:9 71:1,8,9

88:6 94:8 98:10

100:16 101:19

103:22 104:2,5

106:5,7,16 113:6

121:19,22

123:11 167:12

201:17 228:19

234:19 270:4

achieved 168:4

332:15

achieving 29:1

106:6

acknowledge

219:21

acknowledged

196:6

acronym 50:19

across 79:16

115:19 124:2

209:17 257:12

267:18 273:19

act 9:14 14:1,10

25:18 28:20

36:11 39:4,8,11

73:8,10 81:20

82:5 133:16

185:3 188:20

192:19 205:8

220:21 221:14

248:17,20

action 110:10

230:2 328:7,8

331:4

actions 181:2

active 293:17

actively 328:1

330:1

activity 125:11

actual 230:9

235:6,10,20

237:1

actually 5:12 9:17

11:12 12:3 14:3

23:7,19 40:2

57:20 75:2

77:4,19 81:2

91:17 92:22

94:20,22 97:10

98:10 99:6

107:4,17 108:3

116:12 117:12

128:21 129:8

143:7 147:16

154:19 161:9

170:22 173:1,5

176:13 178:16

183:8 185:1

186:9 211:13,16

214:1 222:10

224:7 228:19

237:6 238:13

239:6 241:21

245:22 248:20

267:16 270:12

271:22 272:5

273:21 284:11

288:7 296:13

302:10 320:5,17

325:5,7

340:14,15

ad 144:14 289:8

add 55:12 60:8,17

62:7 63:1 64:1,5

75:9,10 76:5

81:9 130:21

137:4 153:15

157:7 170:10

187:19 188:2

193:5 235:22

243:4,8,10

246:15 254:4

260:21 291:2

322:5 325:11

331:13

340:11,18

added 257:16

337:13

adding 37:9 59:15

60:14 81:12,15

208:19 268:6

addition 69:6

243:9 245:16

248:10 270:6

279:19

additional 37:10

73:14 76:13,15

79:2 94:1 109:16

193:10 214:17

237:14 275:11

278:3 284:14,20

288:1,2 299:14

318:13 326:15

add-on 330:21

address 26:9,20

28:12 32:6 54:14

67:18 84:16

138:18 177:2

182:20 207:21

211:13 219:1

223:3 247:2

284:15

addressed 80:13

185:4 231:14

304:1 336:19

addressing 203:3

214:5

adequately 78:4

114:14 230:4

adjective 65:2

adjectives 71:14

adjust 119:9 335:5

ADM 243:9

244:5,7,9

administration

23:21 198:5

administrative

22:17,18,20,21

25:18 28:20 39:3

214:12
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admit 298:18

adopt 251:7

255:20 275:12

282:10

adopted 227:19

256:1 341:17

advance 221:20

223:11 294:13

advantage 90:7

170:4

advantages 116:15

adversarial 25:20

adverse 37:6,8

38:5 110:10

210:3,20 211:12

329:11 331:4

advertised 240:3

242:20

advice 13:4,14

36:12 171:3

advised 195:19

334:1

advisory 1:7

9:13,22 10:9,17

13:22 14:1,10

36:9,10,13 39:7

73:8,10 81:20

119:20 133:16

188:20 192:19

220:20 221:14

advocate 97:12

287:18

advocates 113:18

AEDM 61:3 67:1

228:10 235:22

244:1,12,17

245:1 246:4

250:1 253:2,4,17

257:15,21

258:4,7,11,15,21

259:7,8,12,17,19

260:1 261:14

262:1,2,6,22

263:5,9,11,14,17

264:15,19

265:1,8,12,16,20

266:11,22

267:3,12

268:9,12,19,22

269:19 270:4,19

271:7,12,17

272:1,6,13,21

273:6,8,13,18

274:3,22 276:6

277:18 278:13

279:7,8,16

280:17 281:8,9

286:7,17,21

287:16 289:8

306:15 318:15

325:11

AEDM-related

277:8

AEDMs 256:7,13

257:10

277:13,17

286:14 291:14

292:8

AEDM's 312:3,10

affect 32:8 111:18

203:4

206:9,10,11

217:10 218:8

228:2 278:13

affected 24:22

27:2 35:1,2 46:9

108:8,9 113:2

122:21 203:5

218:4 316:16,18

345:1

affectively 80:8

affiliation 7:6 15:7

afraid 90:11

102:3,11

afternoon 38:17

47:22 48:9 53:4

55:15 59:2,15

afterward 189:7

afterwards 274:16

against 49:18

114:5,11 125:9

164:16

169:13,22 204:7

214:6,21 215:7

286:11 287:21

315:13

AGC 132:4

agencies 23:2

30:4,5 34:17

37:20,21 39:6,8

40:22 201:15

206:5

agency 24:21,22

25:16,21 26:6,7

28:4,12

29:2,17,18

30:12,13 32:11

34:22 35:3,22

36:8,12 37:4

40:2,5,6,9,16,18,

20 41:21 114:21

158:13 201:21

202:8 205:14,16

206:10 213:8,9

221:13 247:8

248:15,19

291:17 296:18

297:4,10 300:12

337:1,8 339:8

agency's 41:20

158:11 177:14

179:21

agenda 9:4 47:22

ago 28:11 78:22

201:14 314:13

agreed 40:20

49:16 89:16

108:13 120:15

134:13,18,20

135:6 136:17

153:5 157:7,13

160:14 168:3

202:4 210:19

211:1 213:18

221:11 233:10

265:11 295:20

319:15 322:14

333:14 336:9

agreed-to

151:13,16

agreeing 65:21

106:4 108:10

109:5 110:10

173:4,5 182:10

186:20 258:5

262:19 285:20

290:21 330:2

333:5

agreement 21:11

36:20 68:10

84:20 85:4 92:19

93:22 95:6

96:2,8,11,15

98:10,20 102:22

103:8,11

104:9,12 107:16

128:8,12,17

133:9 149:22

155:4,5

165:14,15,20

180:19 190:14

196:11 200:11

202:2 209:5

210:14 224:18

258:10 325:11

333:8,19 344:7

agreements

202:12 311:20
Capital Reporting Company

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Ah 220:15

ahead 96:22 99:1

101:8 103:13

104:7 105:5

114:22 115:10

117:11 123:2

129:6 139:17

160:17 175:21

183:3 195:3

209:8 234:9

251:19 269:9

314:22 322:14

344:5

Ah-hum 308:1

319:3

AHI 113:15

AHRI 19:5 58:5

93:3 211:18

231:16 239:13

240:12 243:3

250:19 255:17

268:16

275:13,14

air 16:13 17:19

26:7 237:11

Air-Conditioning

2:6,10 15:19

16:12

airflow 63:12

AL 18:7

Aldridge 348:2,13

Alex 2:11 19:13

alignment 96:3

alleviate 39:10

Alliance 3:14

20:10

allow 27:13 73:15

98:4 109:15

110:21 120:17

199:1,2 209:5

228:6 242:6

allowed 95:7 96:14

128:15 188:14

253:20 261:1

298:15

allowing 129:11

158:6

199:7,12,13

203:20

allows 14:2

82:5,19 97:9

already 20:12

72:11 76:17

79:19 86:6

143:16 155:15

159:9 160:19

180:4,8,12 196:5

211:11

212:2,6,16

215:14 221:1

232:11 238:1,5

245:14 263:18

266:2,3 271:6

278:9 286:19

296:3 320:3

321:16 322:3

323:17

alterations 55:10

alternate 76:16

120:12

131:3,9,11,12,15

,18,20,21

132:5,8

133:1,2,4,10

141:2 200:3

208:20 209:14

344:5

alternates 73:11

128:10 198:21

199:1,2,5,13

207:22

208:1,16,21

209:2,11

210:7,9,11

alternative 29:17

43:18 85:22

165:14 178:8,16

182:15 187:20

188:2 228:8

263:8 264:6

296:12 304:3

335:10 344:3

alternatives

43:7,15,17 45:11

128:18 177:2

212:13 298:11

am 5:12 18:4

29:20 40:18 41:1

45:17 58:11 66:3

134:20 157:22

164:3 167:3

169:8 170:17

171:2 176:1

181:21 219:16

226:19 238:13

243:9 287:8

289:11 301:22

316:12,15 324:2

329:7 346:7

347:2 348:2

349:2 350:2

351:2

ambiguity 192:4

amend 209:12

amended 344:8

amendments 72:9

American 3:10

18:1 238:13

307:17

among 82:12 86:5

112:4 177:1

190:14

amount 92:8

99:19,21 247:21

258:17 266:11

279:14 331:12

Amrane 2:6 16:11

71:17,20 102:5

132:18,22

133:5,11

146:19,20 147:7

170:10 211:18

232:17 234:3,6

243:3,18 259:4

285:10 290:17

293:1 308:12,20

309:18,21

310:3,6 311:6,9

323:12

AMSTRONG

171:19

analysis 152:2

156:14 157:6,12

258:20

and/or 120:19

165:10

ANDERSON

175:19

angry 163:18

announce 14:5

144:18

announced

221:2,5

announcement

54:21 306:19

announcing

143:22

answer 93:8 130:8

171:4 176:6

186:6 236:7

264:3 269:7

317:17

answered 284:11

answers 27:7

326:17,22
Capital Reporting Company

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anticipated 200:16

anticipation 185:9

anybody 14:8 40:3

50:4,9 52:5

59:6,21 61:20

62:4,19 72:20

73:4,17 75:3

79:13 80:16

81:4,8 82:10

86:2 87:12

91:4,7 121:9

127:16 129:5

130:21 133:12

135:9 138:2,3,12

139:5,10 145:15

146:4,17 155:9

166:12 169:4

170:12 199:4

203:1 211:19

213:6 220:22

221:17 279:2,12

304:2 326:19

328:15,18 335:5

anyhow 299:7

336:15

anymore 31:11

137:9 207:14

anyone 50:6 51:17

298:18

anyplace 336:10

anything 11:12

21:17,21 41:18

51:17 62:1 65:21

73:10 97:8 103:9

113:6 130:21

132:14 138:3,15

144:12 154:15

160:2 163:5,12

172:19 178:17

201:4 205:10

220:11 238:6

251:18 253:9

258:20 284:3

290:19 295:1

315:16 320:22

340:12

anything's 304:22

anyway 5:13 6:11

24:7 75:11

209:20 276:19

343:19

anywhere 28:20

215:9 216:9

APA 37:3,5

apologize 8:8

apparently 268:20

appear 87:13

145:21 215:8

appearance 81:13

appears 50:5

134:4

apple 94:1 334:10

appliance 1:6 11:9

15:2

appliances 2:13

22:14

applied 18:22

applies 83:20

253:22 264:20

apply 9:14 10:1,16

126:5 189:15

190:3 244:20

267:13

281:12,17

applying 26:17

appoint 76:2,10

appointed 9:21

73:3,6,7,9 80:7

133:14 143:12

appoints 76:8

appreciate 69:11

79:6 219:22

approach 9:3

39:20 47:3

145:22 154:12

appropriate 9:4

31:21,22 139:6

141:22 271:9

288:19

approval 280:13

approve 82:21

219:5

approximately

307:7

April 1:14

arbitrary 138:9

ARC 138:11

area 31:10 197:3

239:20 248:18

areas 60:12 94:7

230:14

aren't 119:5

203:13 304:11

argue 253:14

332:16 334:2

arguing 66:8 97:1

argument 93:5

205:8 334:1

arguments 121:16

218:3

arm 334:21,22

Armstrong 3:20

20:2 59:8 61:12

79:11 119:3,7,15

122:4 130:14,18

144:4,13 147:6,8

149:1 150:4,15

171:13 172:4,10

173:11 176:8

181:4,11,14

184:20 190:4

196:13 223:7

225:20

232:5,13,19

233:5,14 234:4,8

235:18 236:1,5

243:6,17 244:14

247:4 249:13

250:11

251:7,13,15

252:5,17 253:4

254:18 255:8

259:1 261:4

262:21

263:3,10,15,20

264:1,7,14

266:19 270:12

276:4 277:9

278:3

292:5,18,21

293:8 294:19

295:2,7,10,15,19

300:5 308:4

311:22 313:1

316:4,7,14

317:20 318:19

319:3,7 323:20

325:20 326:7

338:3,6 340:17

arose 208:3

arrange 297:11

arrangements

296:19

ASAP 312:3

Asher 251:9

Ashley 3:20 20:2

59:8 79:6 119:3

149:1 233:16,20

235:22 242:16

244:14 250:5,15

254:18 256:3

257:14 261:3

269:3 272:2

277:12,15 291:2

311:22 313:1
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316:2 340:15

aside 12:14 85:21

116:18 196:14

276:15 323:18

as-is 279:18

ASME 203:10

aspect 159:10

211:10 228:19

aspects 56:4 234:1

236:1

ASRAC 3:19 5:3

6:10 8:10,11,20

9:3 15:1 20:7

59:11,12,18 73:6

77:2 87:19,22

88:3,11,16,22

89:9 93:7,17

96:3,17 98:1

99:16 102:12

116:18 119:10

126:14 146:22

147:9

149:2,4,7,10

150:6,7,20

151:12,15,18

158:19 160:18

176:13 180:5

184:12,13,17,18,

21 185:1,13,14

186:3,4,5,8,10,1

2,14,18

187:4,6,10,15

188:5,7,8,9,13,1

4,17,21

189:4,8,11,22

190:13,20

191:9,13,15,22

192:5,8,12,13

193:6 194:15

195:14

196:14,15,17

197:3 200:17

210:17 214:1

220:13 280:12

281:10,15

298:13 299:4,8,9

300:7 308:19

309:10,11 313:4

314:21

318:20,21

323:16,19

337:16,17,21

338:14 341:1

ASRAC's 312:1

337:22

assembled 8:13

assistance 14:15

Assistant 18:4

22:11 35:6

Association 2:12

16:13 19:14

238:14

assume 64:21 71:8

85:6 129:6,11

145:21 146:20

164:6 185:16

200:20 208:10

216:21 264:14

268:18 269:14

278:10 294:14

assumed 128:2

210:10

assuming 69:19

99:7 158:1

181:21 186:3

272:7,9 300:1

303:16 311:19

316:6 325:9

assumption 121:6

192:8 268:22

270:5 275:12

319:12

assumptions 99:5

assurance 83:11

276:13 277:3

280:7 281:3

Atmosphere 309:2

attack 26:1

42:8,9,17

attempts 249:15

attend 46:20 83:13

120:10,13

128:11 131:6,19

142:15 279:3

attendance 72:17

82:13,17 85:18

131:1

attended 45:20

attention 33:18

52:13 120:9

attorney 16:8

23:20

attributes 55:6

AU 306:10

audience 73:18

83:1 86:2

audio 227:2

august 96:19

146:6,10,21

147:3,22

148:12,13

149:5,11

150:2,8,11

151:3,11

195:5,7,12

204:13 257:9

271:1 301:5

315:1,18,19

316:21

318:10,13,15

322:1

authority 39:3,6,9

40:3 41:3 183:10

205:17

authorized 139:8

141:4

authorizing

236:11

automatically

119:8

automobile 26:11

automobiles 22:14

availability 222:12

297:17

available 221:21

222:20 226:6,16

239:2 245:17

263:8,9

293:11,12,13

296:13 297:15

305:17

avenue 1:11

252:22

avoidance 64:6

aware 23:15

40:18,21 41:1

102:14 199:7

202:12,13 203:9

206:8 208:5

away 62:1 65:16

99:13 107:10,12

114:10 165:21

170:3 213:8

275:22 322:19

332:5 341:22

awful 192:4

B

backed 286:11

background 15:16

21:13,16

backing 286:19

bad 7:16 42:19

69:10 210:22

bags 26:7
Capital Reporting Company

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balance 34:7 90:19

127:3 159:4

167:13 206:5

217:14 218:12

balanced 287:21

balancing 206:8

334:4

Ballo 2:8 16:8

55:21 60:22

64:18 68:14 83:5

90:22 92:10

95:12 98:22

107:10 109:14

111:21 112:15

114:8 127:9

143:6,18 144:5

152:8,21,22

212:18 214:4,11

222:10,11

223:16 224:4

246:17,18

247:10 248:1

288:7,13 342:16

343:4

ballot 126:20

bar 81:14 98:14

Barhydt 2:9 18:3

23:16 58:21

60:18 64:11

66:14 70:2 75:5

76:13,19

81:11,16 82:2

94:5 96:22 98:8

110:6,18 128:20

130:3,7 136:21

138:17 139:3

141:11 142:5

148:6,10 151:5

152:5,9,12 153:3

155:17 158:14

159:5,18

160:6,10

161:7,13,16,18

162:6 164:13

170:21 172:22

173:17 177:6

180:3 181:7

184:5 194:20,22

200:22 210:13

212:8 215:12

227:18 229:11

231:4,17 232:1

233:22 235:9

236:10 237:4

242:14 244:4

248:14 249:7

251:1,4 257:14

259:3 261:3

269:13,17

272:14

273:11,16

274:13

275:1,5,17

277:18 278:6

287:7,13

288:14,21 289:2

290:1,4,6,9

303:19 304:9

315:12

318:11,17,21

319:1,4,18

322:6,17,20

323:1,14

324:2,11,16,20

325:5,22

326:6,11,15

328:21 331:7

332:3,8 335:20

342:11,18

344:13

barking 79:20

barred 81:12

base 14:12

based 30:3 47:12

106:15 121:3,5

185:15,19 189:9

190:22 191:15

196:6 198:15

205:13 206:5

249:17 267:3

274:10 275:11

284:10,12 285:3

292:16 294:3,4

321:17 325:2,11

326:22 329:22

330:6 341:18

basic 55:10 241:5

245:20,21 250:9

256:5 257:11,19

268:8 319:20

basically 10:13

13:13 20:22

39:16 53:15,17

167:21 174:22

177:18 192:12

238:16 267:12

340:7

basis 150:3 156:22

157:9,18 158:9

159:8 168:3

177:12 178:4

179:11,19

203:20 226:1,4

260:17 268:1

Baum 335:12

344:1,2

Bauman 2:10

15:18 62:9,15

63:5 65:3 69:4

79:12 103:17,18

109:6,8,20

115:14 121:18

167:17

172:1,5,11

174:2,10,13,15

232:7 269:9

271:5 274:4

286:8 335:14

bears 67:16

beat 95:11 164:11

beaten 95:10

beautifully 165:22

become 57:9 332:6

337:19

becomes 86:19

93:19 121:21

233:12

begin 99:16

262:19 277:15

beginning 161:8

162:5 170:19

191:7 193:14

201:14 250:4

323:22

behalf 8:10 40:9

64:3 108:15

133:2 159:15

162:1

behind 51:19 56:8

77:18 115:5

215:3

believe 33:2 62:5,6

69:16 77:15 78:1

80:16 81:21,22

94:6 102:6,10

136:11 140:15

146:7 228:22

236:13,18

261:17 264:12

265:2,4 272:16

274:15 337:3

believes 66:9

belongs 66:9,12

beneficial 63:2

benefit 341:13

BERHYDT

343:11

besides 30:6 99:18

234:1 244:12

340:12
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99:20 104:14

154:13 196:21

206:21 207:7

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226:5 252:3

284:3 285:11

286:12 322:16

335:7,9

better 8:4,5 26:13

27:12,14 28:3,7

29:8 30:14 33:2

34:7 35:14 38:22

44:2,3,4,20

47:3,4 49:14

65:4 66:11

113:11 121:19

122:2 136:15

165:18 180:18

211:16 216:16

251:16 265:19

267:1 272:6

287:1 305:16

326:5 328:11

beyond 148:21

257:4 264:11

299:22 314:15

321:19

bigger 6:19

bike 310:11

Bill 4:6 19:17

45:15

Bill's 42:14

bind 193:19

binding 71:21

81:20,21

128:12,14,22

129:2 164:1

191:13,14 329:1

bit 7:10 9:8 27:17

29:12 34:20

44:20 48:15 61:9

67:1,16 76:10

80:21 88:15

89:10,13

98:11,15 99:1,7

100:6 102:1

108:21 110:13

116:7 123:4

124:1 139:13

147:4,21 156:16

163:8 172:13

191:7 193:13

201:22 206:2

209:18 221:2

224:17 240:19

242:3,11,12

261:8 264:10

292:1

bite 94:1

biweekly 226:4

blast 144:22

145:12

blew 335:3

blindfolded 286:4

bloc 49:6

113:20,21,22

block 96:2 98:4

113:5 287:17

blocked 113:9

blushing 119:17

board 181:18

body 96:19 98:4

110:12 160:17

Boesenberg 2:11

19:13

bog 73:19

boiler 16:5

234:15,18

238:14,16,21

239:17,20 240:2

boilers 16:3,6

18:9,12 19:4

54:8 154:14

234:14,21

238:22

239:15,16 240:3

241:3,7,10

books 263:18

289:16 314:16

319:5

Boss 4:6 19:18

bosses 197:12

bothered 165:5

bottom 237:18

325:19

bought 237:6

bound 196:3

bounds 183:6

249:9

Bowley 2:13 20:11

102:18 175:4

box 70:21

Bradford 3:17

20:9

brainstorming

325:6

break 6:16,17

38:18 45:6

46:2,11 48:18

51:2 146:15

167:4 171:3

176:22 184:11

296:3 318:3

Breaking 313:18

breakout 45:18

break-out 46:15

breaks 47:1

breathe 9:20

Brice 2:13 20:10

brief 6:9 7:12 15:7

278:17,20

briefed 199:3

209:2

briefing 9:12

briefings 13:8

35:17

bring 28:16 31:3

38:5 46:13,21

51:4 64:16 68:2

79:18 139:22

269:4 270:17

271:3,9 272:3

276:6,11 277:18

282:4,12 292:8

308:7 324:7

bringing 24:20

69:11 261:15

265:15 285:12

brings 85:7 133:18

142:11

broad 56:21 72:15

102:22 325:18

broadening 59:16

broader 54:3

89:10 299:18

broadly 58:22

244:6,10 246:21

325:14

brought 30:9,18

84:6 189:5

218:13 264:8

300:4

Bruce 103:1

249:13

Bryce 102:18

BTS2000

234:14,16

241:13

Btu 275:21

buddy 19:19
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237:20

build 116:4 240:8

268:5 335:15

building 1:10

6:7,12,13,21

15:2 269:8

287:17

built 19:3 54:10

70:12 325:16,17

bullet 325:18

bunch 38:21

116:10 242:12

334:8

bundle 257:10

burden 228:1

247:17

burdensome 68:18

burned 91:7

business

12:10,13,15

18:22 88:17

112:3 198:5

203:5 224:20

247:22

butts 160:1

C

C.F.R 243:22

cafeteria 6:19 7:3

calculated 267:15

calculation 246:6

258:16

calculations 246:3

258:18

calendar 305:16

324:8

calendars 300:4

306:1 344:4

cancel 305:18

319:5 322:6

capability 238:21

239:1,3,12,18

capacities 240:8

capacity 63:10,12

234:19 235:2

Capital 1:22

caption 56:8

capture 232:3

234:9

captured 57:17

257:18

car 298:16 299:4

care 127:11,19

155:16 158:7

185:17 338:20

careful 191:10

249:9

carefully 51:10

Carol 351:2,13

carry 12:15

220:15

carrying 10:2

cars 26:7 298:17

case 26:4 39:19

40:18 75:22 91:4

92:11 114:12

147:4 160:12

164:7 171:18

174:10

177:10,14,21

179:16

183:19,21

184:16 185:11

191:9 192:10

194:8 210:15

228:4 276:18

278:4 280:9,10

284:3,4 286:10

323:16

cases 10:12

31:21,22 146:12

178:6 179:22

201:5 252:10

cast 121:6 127:13

153:11,12

161:22 162:15

casting 133:2

casts 162:15

catch 250:18 302:2

category 62:22

299:14

caucus 80:9

caucused 84:4

cause 117:12

207:13 270:2

causing 331:11

cave 109:10

caveat 332:12

cell 298:17

certain 5:22 35:19

67:3 77:1,3

94:14 111:17

116:2 124:14

125:11 197:3

208:2 239:3

240:8 244:2

258:17 263:1

266:11 268:13

295:4 339:22

certainly 78:10

94:7 164:11

199:2,13

241:8,12 258:9

274:7 331:16

certainty 177:19

214:8 281:19

certificate 268:4

346:1 347:1

348:1 349:1

350:1 351:1

certification 54:17

55:5,8,11

56:2,4,15,18

58:9,17

60:3,4,9,11,14,2

1 61:1,4,7,8,13

62:8 63:3,4

64:16 68:4,17,19

227:20

230:10,20

231:16 232:16

234:12 241:2,20

242:3,6,9,16,21

243:5,11 246:20

247:13,15,17,20

250:2 252:21

256:15

258:2,3,11

262:14 265:8

270:3 281:14

286:22 287:8,15

288:8 325:17

certifications

234:7

certified 55:7

241:21 260:11

certify 228:12

262:6,17 286:17

346:3 347:2

348:2 349:2

350:2 351:2

certifying 5:22

cetera 49:5 73:4

chairs 33:17

challenge 69:22

92:1 108:17

162:3 163:4

214:13 216:22

277:15 336:1

challenged 43:2
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challenges 333:9

chance 53:7 68:7

72:5 97:21

165:18 196:2

207:16 245:6

299:9 344:10

chances 79:20

195:21

change 51:14

52:1,7,15 59:5

72:1,20 74:13

75:3 87:7 101:18

104:14,16 105:7

106:9 107:15

125:3 134:11

138:3 147:11

155:17,19 156:6

179:1 190:1,4,13

193:6 197:4

200:4 217:7

253:21,22 268:2

276:2 282:11

283:3 295:22

329:11 338:18

340:11

changed 83:7

85:4,7 154:13

187:16,17 196:3

213:21

220:14,18 321:7

changes 37:18

72:22 73:4 80:10

82:15 173:2

195:13 213:20

264:6 280:20

282:17,22

299:9,19 337:4

339:7,8,12,13

340:5

changing 59:15

62:19 82:7 84:19

180:17 196:22

340:3 341:20

characterization

76:22

Charles 2:19

80:19

Charlie 16:21

53:12,13 80:19

86:14,15 125:5,6

127:10 180:21

186:16 195:3

204:1,2

214:19,20

221:18 267:8

272:21,22

274:11

281:21,22

293:14 342:5

Charlie's 274:5

chartered 36:14

check 197:19

303:9 322:11,12

337:20

checking 241:21

Cheryl 347:2,13

child 194:5,6

chime 10:21

232:14

choose 194:3

244:2 263:7

chose 81:2

Christine 350:2,13

circle 76:10

268:12

circulated 49:22

circulating 321:2

circumstances

41:13 263:1

civil 230:1

claimed 248:2

clarification 66:3

108:22 110:19

171:1 225:14

250:7 337:15

339:2 340:15

clarify 59:9,19

141:22 215:5

339:5

clarifying 197:1

class 243:14,19,21

244:1,11 250:10

253:21 306:9

classes 47:11 57:8

154:10 244:3,20

271:11,13

273:20

classic 44:17

classification

252:13

classifications

251:21 252:1

clause 183:18

214:2

clauses 184:2

cleaning 343:18

cleanup 291:5

clear 24:7 39:15

122:11 134:8

160:22 214:16

274:9 314:10

342:21

clearer 73:22 82:8

215:1

clearly 15:5 24:16

45:8 113:19

139:13

Cleaver-Brooks

3:6 16:5 54:19

71:4 234:11

241:8

Cleveland 16:17

Climate 3:4

close 99:3 112:4

117:10,16

166:11 271:17

closed 78:22

278:10

closely 343:19

closer 63:17

102:21 195:16

266:15

Co 3:5

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codes 15:2

coffee 6:17

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23:6,11 40:15

50:11,14 52:9

74:22 129:17,18

130:6 131:20

132:2,4,9,12,15

133:6 135:16

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173:14,22

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175:9 183:3,8,9

193:17

194:2,5,12

199:9,16

223:5,12 224:1,6

226:22 227:5

264:18

265:3,9,15,18

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279:8,11 280:10

281:5 282:3

284:9,22 294:16

296:4 297:14,20

303:9

320:16,19,22

340:14
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343:15,21

344:16

cold 256:9

colleague 206:17

collectively 114:7

collects 247:13

Collin 3:18

collisions 26:5,11

42:2

combination

304:15

312:16,17

combinations

260:12

combining 103:19

comes 8:15 13:11

21:19 36:13

45:16 86:17

105:12 117:1

154:7,20 164:16

165:4 186:4

187:15 237:3

251:8 252:18

265:8 272:21

273:5 280:11

333:16 343:16

comfortable 6:4

40:12 49:8 57:14

60:13,21 80:14

81:6 82:7,12

83:1 85:3 117:13

122:12 135:22

140:18 142:2,11

144:7 149:14

151:22 166:4

192:16 198:15

231:6,11 288:7

295:3 296:14

303:13 305:1

313:19

coming 36:2

41:8,22 42:1

66:22 70:7,9

79:22 80:20

98:8,13 99:4

113:13 116:5

143:16 164:9

178:19 206:6

253:7,9 255:18

258:10 268:1

277:4,16

283:9,18 287:22

301:14

comma 141:18,20

173:12

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63:1 95:20

100:19 102:22

105:15 182:4

198:18,20

202:6,18,21

203:8,16 204:5,9

205:8,16 212:5,6

213:5,7,8,11

249:11,13,14

258:13 265:11

266:6 275:10

278:10 279:19

282:19 283:3,5

285:4 293:1

commented 260:6

commenters

341:21

commenting 340:8

comments 26:15

28:3

37:6,9,12,17

38:4,6 51:16

64:8 79:15,16

85:16 88:7 98:7

102:17 158:3

161:21 163:5

164:4 168:11

178:21

180:11,12

181:1,5,8 182:16

186:20

189:15,22

191:17 193:11

198:15 199:6

200:9,13,21

201:4 202:2

205:22 206:18

207:6 210:4,20

211:2,12,17,20

212:2,15 213:15

214:18

215:3,14,16

221:21 222:16

228:20 238:15

268:15 274:22

275:4 276:7

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284:10,12

285:1,6 286:13

292:11,16

294:22 327:15

328:22 329:11

331:4 332:7

336:12,22 337:9

339:4,7,21

340:2,8,16,21

342:2

commerce 55:9

commercial 5:22

6:1 15:20

16:2,19,22

17:4,7,15,18,21

18:8,11,12,22

19:7 21:18

54:7,17 58:10

69:8 97:5

137:1,3 154:13

237:11 239:10

241:3 243:11

246:7,8,10,12

252:9

commit 159:13

172:15,16

190:22 226:11

290:11

commitment

159:7 202:7,8

329:3,17

commitments

164:1 206:22

331:13

committed 98:15

101:10 200:12

201:15 212:11

263:16

committee 1:7

6:10 8:10 9:14

10:3 11:2

12:12,22

13:2,3,10,20,22

14:1,10 20:5,7

23:16 31:1

36:9,10,11,14,16

37:15,17,19

38:6,15 39:8

40:11 51:6

52:3,14 55:16

59:11,13 68:3

72:16

73:2,5,6,8,9,10,1

1,17,21 74:4,21

75:8,12 76:4,5

77:8 78:6

81:7,20

82:1,19,20 84:19

85:9,12 86:18

87:19,22

88:3,11,16 95:21

98:2 99:8 114:15

117:15 119:20

120:13 125:12

126:5 127:20

128:11,17

131:14 132:20

133:3,14,16

139:9,11 140:20

141:5,6 145:20
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148:3,4 149:3,12

150:21 166:10

176:14,17

184:13

185:19,21 186:1

188:11,20

192:19 193:20

194:11

208:2,10,11,13

215:4 219:20

220:12,21

221:14 222:7

226:21 232:22

233:10

270:14,18

276:5,20

277:10,19

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280:12 281:9

292:6 293:19

320:14

327:21,22

328:4,7 329:21

330:10 340:7

343:17,18 344:9

345:5

committees 9:22

10:9,11,17

203:11

committee's 10:14

12:15,16

common 250:12

communicate

194:15 305:5

communicating

217:21

communication

65:9 145:9

communications

64:4 192:10

194:16

community 33:1

companies

11:6,7,9 197:13

255:14

company 1:22

2:21 11:5,15

15:6 16:1 20:14

46:8 77:14 80:12

108:9 111:4

197:13 238:22

241:8 247:9

249:6

company's 11:11

comparable 16:7

competitors 108:5

complete 241:10

255:12 347:7

348:7 349:7

350:7 351:7

completed 253:13

273:6,7,14

completely 79:21

128:16 162:1

197:4 210:4

284:15 288:9,15

complex 204:21

321:9

compliance 28:22

55:22

56:5,15,18,19

60:4,10

61:8,14,15 62:8

229:18 230:1,10

246:22 251:10

252:21 264:6

266:10 285:22

compliant 228:13

complicated 41:12

176:19 273:4

comply 29:14 68:6

163:6

complying 69:21

component

268:4,6,10

componentry 54:9

components

267:14

comprehensive

50:15

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334:13

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Conceivably 302:9

concept 26:3

108:13 207:2

concepts 61:17

concern 30:1

81:11 97:10

127:9 154:3

155:16 185:3,8

204:18,22

209:20 212:19

214:5,20 223:16

230:12 232:4

271:7,18 286:15

327:13

concerned 71:15

137:11

185:20,22

239:11 261:22

concerns 39:10

51:17 53:10 67:3

73:18 92:18

135:11 156:7

157:9 177:3

184:8 218:1

228:20 248:6

263:13 266:13

292:12

concise 215:6

conclude 140:12

150:9,18

151:3,10

concluded 222:13

345:6

conclusion 6:4

27:5

conclusions 340:1

concrete 177:9

178:18

concur 96:5 159:3

218:10 285:16

327:17

concurrence 73:16

74:10 81:6 82:8

83:7 84:19 128:2

134:7 139:12,14

conditional 281:6

conditioners 16:14

237:11

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17:19

conditions 234:19

235:3,5,7

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conduct 12:12

231:9

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conference 14:4

33:16 217:21

218:14

confidence 231:9

246:8 247:11

confident 315:9

confidential

247:22

confined 38:22

56:4
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conflict 10:2

confronting

167:12

confuse 135:22

confused 58:6

108:1 164:3,18

280:15

confusing

136:4,11

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80:13 167:9

Congratulations

129:7

Congress 31:2

39:10 161:1

connection 187:3

consensus 9:4

21:9,13

25:9,10,12

30:3,7,12 32:11

36:17 39:1,21

44:4 45:2

48:6,7,12,14,20,

22 49:1,7

50:2,5,7 52:19

54:15 55:17

58:9,17 60:3

62:5,6 63:15

64:13

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71:2,5,9

74:11,17 81:7

82:1,8 83:8

85:1,3,5

87:13,15,19

88:9,13,22 89:21

90:1,3,9 92:2

93:21 94:13

96:10

99:9,10,11,13

101:12,13,18,19

102:4,15 103:21

104:12,13,18

105:4,10,13

106:1,5,6,7,11,1

9,21 107:11,18

108:22 112:4

113:7 114:9,10

115:17 116:4,19

117:9 123:1

125:2,19 126:3

127:20

134:1,4,6,16

140:2,3 145:22

146:2 150:10

157:2 158:1

163:9

171:8,10,18,19,2

1 173:10,13,15

174:1,8,22

175:1,2,12

179:1,7 180:4,7

181:15

184:18,22 189:6

198:13 200:20

201:16,17

210:15 211:5

213:12,18,19,22

215:9 217:3,13

220:5 259:22

291:18 298:22

312:10 320:9,12

328:8 329:4,9,22

330:5 331:18

332:11,16

333:3,8,19 343:1

consent 157:1

168:21 169:5

170:4,5 195:16

200:6 202:1

consenter 332:6

consenting 332:7

consequence

265:19

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113:18

consider 49:22

51:11 93:8 94:11

100:4 101:7

114:18

159:15,16

162:18 163:13

166:5,7 167:14

168:4 169:11,16

172:18,20

173:5,6 174:6

175:5,6 176:17

177:22 178:3,8

179:18 191:1

200:9 204:16

215:10

292:6,9,12 312:9

336:11,22

considerable

41:17

consideration

25:1,2 70:19

154:6 173:3

177:4 187:21

250:17 254:20

255:17

considered 108:12

176:5 203:17

204:16 232:21

285:17

considering 64:13

119:13 200:12

284:19 335:7,9

considers 176:2

consist 135:12

consistent 158:11

160:3 177:13

179:21 209:17

342:12

constantly 113:9

constituent's

87:10

constitute 258:14

constitutes 260:10

constitutional

32:21

constrain 291:22

constraints 100:13

336:13

constructive 8:16

9:1

construed 128:6

consultant 238:13

Consultants 2:17

19:12 20:11

Consulting

3:9,18,21 4:7

19:21 20:1

consuming 31:20

consumption 55:7

contact 11:17

contacts 38:9

contain 186:4

CONT'D 3:1 4:1

contemplate

197:20

contest 182:3,4,5

context 135:21

165:4 180:6

212:16 235:15

244:5,7 257:6

continual 192:10

continue 83:12

117:22 146:3

149:9 184:1

199:19

contract 12:3

contracts 41:18

contrary 205:22
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control 25:9 191:4

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230:19

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257:11

convene 26:8 36:8

convened 27:11

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39:13 40:7 41:7

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258:18

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21:1,3 107:6

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conversations

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115:21,22

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Corporation

3:3,12 17:7

19:16 20:9

215:20

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94:5,18 95:9

131:4 132:9

135:5,7 144:6

174:2 241:22

251:6 258:22

264:1 279:11

289:11 347:7

348:7 349:7

350:7 351:7

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230:17,18 231:1

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Council 3:10 18:1

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22:11 171:3

counsel's 9:11

20:17 23:22

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119:8 120:7

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110:1

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30:22 39:2 125:7

215:3 226:14

245:10 293:15

295:5 305:12

306:14 321:3,13

322:4

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154:21 280:10

299:11 300:12

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131:22 136:6,10

162:3 205:15

212:20 221:12

223:13 225:2

278:19 291:10

333:4 346:1,2,14

347:3,5 348:3,5

349:3,5 350:3,5

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cover 61:8 62:2

77:3 154:8

252:20 268:13

300:6 313:20

318:15

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77:1 78:5,6

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251:18 272:8

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covers 60:11 72:15

76:17 122:1

145:20 250:4

300:7

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crafted 51:9

crazy 114:13,14

115:22 116:1

create 81:13 83:21

144:22 228:1

created 34:13

291:6

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64:12

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163:7 164:21

269:2 272:4

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crunch 67:13 86:8

99:17 145:6

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224:6

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228:2 236:10

245:12 250:22

252:12 255:16

263:6 289:17

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78:11,18

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240:5

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64:3 66:18 71:11

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94:17 95:9

119:22 142:22

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147:15,16 148:7

170:15,18 171:6

186:7 189:3

220:5,11,15

224:11 296:20

297:1 342:20
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Cymblasky 120:2

D

Daikin 2:22 18:21

Dan 3:22 11:18

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data 230:10

241:9,11 242:8

245:15 248:12

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267:13,20

273:16,17 274:3

275:13,15 276:8

database 247:13

255:5

date 32:13

146:6,10

147:12,13,16

148:22 149:16

150:16

151:12,18,19

197:6 225:1

237:5 243:11

285:22 288:3

295:4,6 297:22

314:17 316:3,18

347:13 348:13

349:13 350:13

351:13

dates 146:6 296:13

297:6 298:10

305:15 314:19

322:19

day 15:1 34:10

40:10 53:21

55:13 65:7 71:18

94:19 95:18

96:13 250:12

279:6 293:6,20

301:22

302:1,3,9,11,19,

22 303:1,6,13,15

307:12 311:8,12

315:1,2 319:2,8

322:5 323:5,8,13

324:13

329:10,18

336:20

341:16,17

days 147:17,18

215:22 217:4

224:20 226:14

232:15 233:2

278:11 293:21

294:10,12,13

295:5 296:16

299:1 300:10

301:12,13,17

302:6,7,8 303:16

305:6 308:6

310:13 311:3

312:17 313:22

316:5 321:14,18

322:19 337:12

Day's 307:14

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deadline 32:7

34:8,13 68:4

69:12 146:5

147:9 148:2,15

195:6,7 232:15

233:2 257:8

262:20

266:9,10,17

271:1 283:7

284:2 286:11,21

287:4 288:8

289:6,10,15,17

290:3,7 295:9

deadlines 69:20

206:8

deadline's 263:10

Deadlines 342:22

deal 59:17 61:14

87:20 165:8

204:17 231:9

253:15 320:16

323:18 324:18

326:2

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63:18 271:20

dean 4:6 19:17

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December 233:2

285:18 289:16

290:2

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38:7,17,18,19,20

49:9 53:3 59:5

71:22 103:5

104:19,22 106:7

107:3 126:11

147:9 159:11

169:11 173:21

219:18 266:3

268:2 270:14

276:22 278:2

282:9 284:16

291:7 336:21

337:12 339:7

decided 40:7,20

79:1 138:1 164:7

165:9 278:22

279:16 343:7

decides 147:8

154:12 190:13

300:9

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40:9,17 41:4

44:8 87:14 88:6

99:19 100:2

104:20 105:3

110:4,12 140:21

146:14 169:19

204:1 285:1

289:7

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216:16,17

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36:22 40:4 44:7

48:19 98:16

126:8,13 139:9

140:19 141:4,17

329:4 338:16

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81:2 101:12,13

102:3 120:8

139:13 245:3

defined 62:6

103:21 171:11

175:1,12 201:17
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definitely 105:18

245:3

definition 88:12

180:7 211:5

243:9,14 250:9

253:3 254:5

257:15 275:8,9

degrees 234:22

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119:15 143:18

269:4,8

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327:8,18 331:8

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128:4 321:7

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deliberated 14:6

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258:21

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258:17

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241:20

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12:9,14 13:11,20

22:13

23:3,17,18,19

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135:13,15

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234:15

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106:14

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69:3 71:3 144:2

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57:9,11,13,16

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259:13,21 261:7

319:19 321:10

326:15 330:14

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56:14 61:15

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229:18

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256:8 296:4

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242:2,8 249:19

258:20 274:21

deviation 114:9

Dewey 120:2

147:16

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diagram 77:16

dictate 86:10

dictates 201:9

differ 113:1

difference 27:18

53:14 114:19

117:21 130:15

162:16 170:16

187:14 246:10

326:16 333:18

334:15

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different 30:1,2

39:20 52:6,8

53:17 54:10

57:8,9 60:6

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70:11,18 73:11

74:10 75:1

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105:16 113:13

124:17 140:17

151:10 154:9

169:19 172:8

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185:18 187:16

190:17 197:12

198:10 200:10

209:13,15 218:4

224:17 256:10

263:12 266:1,5

274:15

279:21,22 282:6

291:19,20

292:1,2 295:9
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341:16 344:22

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114:9 182:19

differs 52:21

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41:13 53:18

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260:17

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176:13 198:3

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62:19 72:20

112:6 114:2

123:3,9 133:12

135:9 138:2,12

139:5 342:1

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123:9

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48:5 96:12

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62:20

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149:11

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disclosed 248:5

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247:2,6,7,18

248:4,20

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145:19,20

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297:5

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184:7 261:9

280:16 291:14

319:21,22

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158:14 160:11

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196:17 215:17

220:22 325:7

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26:21 49:15

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59:16 60:20 65:7

67:16 86:9 99:12

107:19 177:9

227:10 244:1

245:14 250:8

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277:13 278:11

279:1 291:19

discussions 14:3

15:13 30:16

43:21 46:12,22

52:4 59:1,5

82:11 94:10

116:2 132:6

139:22 177:1

178:14 197:6

217:19 225:17

228:18 229:21

278:12 289:9

292:10,22

344:22

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disregard 160:2

disrupt 67:6 68:22

disrupting 65:15

disruption 64:7

68:2 69:9 70:4

disruptions 67:12

68:8 70:10

dissent 128:3

157:18 213:4

dissented 153:5

179:13 332:13

dissenters 164:20

dissenting 115:11

153:1,13 156:10

157:8,17

158:4,12 164:16

166:1 172:14

173:2,16,19,20

174:1 175:3

177:15,22

178:7,9,12,13,17

179:10,17

180:1,11,13

183:20 184:1

186:5,19,20,21

187:19 188:10

189:18 190:11

191:19 212:12

214:16

dissents 175:13

distinction 111:22

171:14

distribution 55:9

94:6 132:5

District 75:6

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diversity 154:5

docket 205:18

222:21 223:8,18

224:8,10

document

27:20,21 51:7

52:10 58:16 65:2

66:11 71:21,22

72:8,11 82:21

86:17 87:1 90:19

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100:10,17

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171:12 174:18

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254:12,21

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304:16

DOE 12:11

13:5,6,13 15:3

18:3 20:2,17

23:15 24:6 27:10

50:1,13,14,18,19
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69:16 80:7 82:13

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38:8 44:1 49:21

98:5 102:14,15

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112:9,18 118:4

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307:5,8,12,14

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318:6 319:10

320:4,12 321:13

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338:14

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dramatic 228:5

dramatically

228:2

draw 52:12 120:9

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drawings 304:17

drive 125:21

driven 283:12

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298:16

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drops 122:18

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311:18 312:13

319:13

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duration 300:10

during 12:19 24:3

29:7 47:1 53:21

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213:2 214:14

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315:8

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Earthjustice 2:8
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245:13

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50:21 51:4

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58:13 59:3,20

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322:7 323:13,15

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331:4,7 335:8,21

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Jane 45:16 46:3

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lab 16:17 17:11

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33:21 34:20

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80:21 82:8

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204:14 208:7

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216:5,7 217:5,6

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267:4 271:7,10

272:4,15 273:1,2

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ma'am 160:22

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299:5,7

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254:10,12 284:6

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16:1,9,22 17:14

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15:8,20 16:5,19

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236:20

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meetings 12:15

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sample 234:4,5
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scenario 160:12

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schedule 7:2 12:14

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218:6,7 252:4

286:20 287:3

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size 15:20 97:3,7

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specifications

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speech 86:20

speed 254:8
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274:18 280:18
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transcriber's

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transcription

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347:13 348:13

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351:13

transcripts

222:12,14,18

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224:12,18

225:17,19

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52:21 54:5 84:2

88:10 92:12 94:6

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119:22 120:2

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translate 294:19

translation
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transmitted 98:3

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22:12 23:3,19

24:1,2,5

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