### Draft MV Ground Rules Post 9-15 Mtg -- BE comments TB.docxDraft MV Ground Rules

Post 9

- 15 Mtg

-- BE comments.docx Draft MV Ground Rules Post 9/15 Mtg.docx



## U.S. DEPARTMENT OF ENERGY

LIQUID-IMMERSED AND MEDIUM VOLTATE DRY-TYPE

DISTRIBUTION TRANSFORMERS

NEGOTIATED RULEMAKING WORKING GROUP



## GROUNDRULES

1. Goal of the Liquid-Immersed and Medium Voltage Dry-Type Negotiated Rulemaking Working Group (“Committee”)

The goal of the Committee is to reach consensus on a recommended set of energy efficiency standards for liquid-immersed and medium-vol tage dry-type distribution transformers.

2. Participants

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

b. Parties to the Negotiations . The Committee consists of those individuals whom the Secretary appoints, as nominated by the affected interests. E ach organization or interest caucus that is directly represented on the Committee shall be deemed a party to the negotiations.

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

the dissolution of the Committee unless that member becomes unable to serve, resigns, or ceases to maintain the representational requirements.

d. Alternates for Committee Members. Each party to the negotiations may designate an alternate Committee Member. Alternates may substitute for Committee Members in the event the Member cannot attend a session of the Committee. Only Committee Members may vote on any consensus recommendation, and any alternate casting a vote shall do so on behalf of the Committee Member, and not as a representative of their own or ganization’s interest, if different.

e. Additional Interests. Additional organizational interests may join the Committee after negotiations have begun only with the concurrence of the Committee.

f. Attendance and Participation at Meetings.

(1) Attendance. Each Committ ee Member agrees to make a good faith effort to attend every session of the Negotiating Committee. Attendance and voting may be by telephone or other electronic means. In addition, the Committee Member's alternate agrees to make a good faith effort to attend all Committee meetings and to represent the Member’s interest at any meeting

that the Member is unable to attend.2

(2 ) Participation. Only Committee Members or their alternates have the privilege of sitting at the negotiating table and of speaking from the floor during the negotiations without Committee approval, except:

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

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

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

or file statements with the Committee.

g. Constituents' Interests . Committee Members are expected to represent the concerns of their interest group to ensure that any agreement developed by the Committee is acceptable to the organization or caucus which the Committee Member represents.

3. Decisionmaking

a. Consensus . The Committee will operate by consensus which, for these purposes, means the unanimous concurrence of all parties to the negotiations present and voting. Concurrence will be

assumed absent overt dissent , evidenced by a negative vote. Abstention shall not be construed as a negative vote. All agreements reached during the negotiations are tentative and may be made by the Members present at the meeting or their Alternates who attend a meeting in their stead until the Committee reaches an agreement that is binding on the parties.

b. Workgroups.

(1) Workgroups may be formed to address specific issues and to develop information for, advise, and make recommendations to the Committee. Although each party may designate a member of each workgroup, the membership of each workgroup should consist of no more than fifteen people. Other individuals who the Commi ttee believes would enhance the functioning of a workgroup or representatives of interests that would be significantly affected by the topics addressed by the workgroup but which are not otherwise represented on the Negotiating Committee may also serve on that workgroup. To ensure that the focus of the working group is maintained on the ultimate objective of obtaining consensus, membership is limited to members, alternates, or employee or consultants of members that are sponsored by the members and authorized to speak on behalf of members. Not all organizations or interest caucuses represented on the Negotiating Committee need to participate in each workgroup.

(2) The Department of Energy (DOE) will provide appropriate support for the Committee and the Workgroups, including a senior economist, senior technical staff, clerical support, and so

forth.

(3) Workgroups are not authorized to make decisions for the Committee as a whole. Decisions to forward a report of a workgroup to the Negotiating Committee shall be made with the concurrence of all workgroup members who are present at the meeting where the decision is

made. Comment [RB1]: This was not the procedure followed in the September 15/16 meeting. The less formal procedure seemed to work well. Suggest we simply delete this.

Comment [RB2]: The next two sentence makes this sentence unnecessary. This sentence seems to suggests silence on an issue during discussion may preclude later objection.3

(4) Workgroup meetings will be held between the full sessions and will be scheduled in the same location and time whenever possible. Workgroups shall make provisions for full electronic participation to ensure full participation by all interests. All Committee Members will be notified of all workgroup meetings.

c. Discontinue if Unproductive . The Committee may discontinue negotiations at any time if they do not appear productive.

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

Committee decides , by consensus, to extend the deadline. Every reasonable effort shall be made to conclude negotiations and report a consensus Term Sheet to the DOE by December 16, 2011.

4. Agreement

a. Term Sheet and supporting analysis . Any agreement reached by the Committee on recommended standards for some or all covered products will take the form of a written statement that will be signed by all parties to the negotiations. For purposes of this Agreement, the term “standard” or “rule” shall be deemed to include any determination that of a revision of the standard is unnecessary for to some or all covered products. It is anticipated that the agreement will include a written statement that includes (a) a Term Sheet outlining the significant terms of the Proposed Rule and (b) supporting analysis as needed to explain and justify the agreed terms from a legal, engineering and economic perspective. DOE staff will be responsible for translating this Term Sheet and analysis, into the language of a proposed rule, its supporting preamble, a Regulatory Impact Analysis, and all other appropriate materials necessary for the publication of a Notice of Proposed Rulemaking.

b. Statement as Basis for NOPR . DOE agrees to use the written statement and any recommended

standards as the basis for a Notice of Proposed Rulemaking to the maximum extent possible consistent with the Agency's legal obligations.

c. No Negative Comments. Each party agrees not to file negative comments on the proposed standard or its preamble to the extent they have the same substance and effect as the Term Sheet.

d. Response to Public Comments . DOE will consider all relevant comments submitted concerning the Notice of Proposed Rulemaking a nd will make such modifications in the proposed standard and its preamble as are necessary when issuing a final standard.

e. No Adverse Action and Support . Each party agrees not to take any action to inhibit the adoption of the recommended proposed standard [NOP R] as a final standard to the extent the final standard and its preamble have the same substance and effect as the Term Sheet.

f. No Challenge. Each party agrees not to take a position materially inconsistent with the standard or determination in court or in any other forum to the extent that the final standard or determination and its preamble have the same substance and effect as the Term Sheet, for a period of 1 year from effective date of rule or rulemaking determination.

5. Facilitator Comment [RB3]: Need to specify what this means.Is this a “vote of confidence” requiring a simple or super majority? Is consensus required to discontinue prior to 12/22?

Comment [RB4]: May be required to avoid a problem of a block continuing unproductive negotiations to avoid going forward with a decision by DOE.

Comment [RB5]: Implicit in the decision for a negotiated rulemaking is a decision that there will be a rulemaking. The statute does not seem to contemplate a negotiation of whether or not to have a rulemaking.

Comment [TB6]: The original language covers the possibility of arriving at a consensus that standards will remain unchanged for some/all equipment classes, an outcome that is legally permissible if stronger standards are not feasible and justified.

Comment [RB7]: APA would seem to require consideration of all comments, not simply those that the agency deems relevant.4

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

facilitator serves at the will of the Committee.

6. Meetings

a. FACA, NRA, and DOE Policy. The negotiati ons will be conducted under the Federal Advisory Committee Act (FACA), the Negotiated Rulemaking Act of 1990 (NRA), and the Department of Energy’s Negotiated Rulemaking Policy.

b. Open Meetings. Negotiating sessions will be announced in the Federal Register prior to the meeting and will be open to the public.

c. Meeting Summaries. The proceedings will not be electronically recorded, but summaries of Committee meetings will be prepared by the facilitator for the convenience of the Committee. Such meeting summaries shall not be approved by the Committee and shall not be construed or taken to represent the official position of the Committee or any Member as to what transpired at Committee

meetin gs

. In the absence of consensus, parties shall not be bound by positions taken or accepted during these negotiations. No photographs may be taken during meetings without the approval of the

Committee.

7. Future Amendments

Committee Members may propose modifications to this document, with due consideration given such proposals. So as not to reduce the likelihood of reaching consensus, the number of design lines and product groups shall not be increased except where (1) technical characteristics require the subgroup be treated differently, (2) a consensus exists for a standard of at least 1 CSL/EL/TSL higher for the remaining products in the group, and (3) there is a consensus regarding both (1) and (2). Comment [RB8]: We still have not been provided with a copy this written policy. I have been unable to locate this on Google, other than in the FR notice establishing this committee. Please provide a copy or change wording to refer to FR notice.

Comment [RB9]: Transcripts are very useful

and should not be abandoned in future meetings. Every effort should be made to make transcripts available within a week of the meeting.

Comment [RB10]: Photographs of presentations, if taken without disruption, may be important to work between meetings.

Comment [TB11]: While I agree that expanding the number of equipment classes and design lines to analyze could hinder the completion of negotiations, I have a few concerns with this proposed amendment.

First, I’m not sure what it adds, in part because

I’m not clear on the extent to which the

Committee dictates the activities of DOE’s team. My impression is that we can suggest new design lines and equipment classes for DOE to analyze, but we can neither prevent DOE from running analyses on a particular transformer nor order the Department to conduct such an analysis. If the point of this proposed change is to make clear that a single

member of the Committee can bar DOE from analyzing an issue, that would create problems down the road. Section 325(q)(1) of EPCA establishes criteria governing the creation of product classes, and section 325(o)(4) is implicated here as well. I’m not sure that we should add another layer to what EPCA

commands. Our failure to achieve consensus on the merits of analyzing another class of

transformers does not relieve DOE of its obligation, and I would not want to put DOE in a situation where the Department is unprepared to issue proposed standards upon the collapse of these negotiations because one or more subcommittee members prevented the analysis of a particular design line.

Second, as presently worded, this amendment appears to prevent the creation of a new product class for further analysis by DOE’s contractors unless a consensus already exists that a different standard needs to apply. But we would need to see the results of any more specific analysis to assess the need for a

different standard level.