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

Post 9-15 Mtg -- BE comments.docxDraft 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-voltage dry-type distribution transformers. 

2. Participants 

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

represented in the negotiations. 

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

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

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

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

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

maintain the representational requirements. 

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

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

cannot attend a session of the Committee. 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 organization’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 Committee 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. 
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(2) Participation. Only Committee Members or their alternates have the privilege of sitting at the 

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

approval, except:

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

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

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

or file statements with the Committee.

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

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

organization or caucus which the Committee Member represents. 

3. Decisionmaking 

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

unanimous concurrence of all parties to the negotiations 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 Committee believes would enhance the functioning of 

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

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

Committee may also serve on that workgroup. 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.
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(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 forto 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 and will make such modifications in the proposed 

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

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

adoption of the recommended proposed standard [NOPR] 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. 
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 A neutral facilitator will work with all the parties to ensure that the process runs smoothly. The 

facilitator serves at the will of the Committee. 

 

6. Meetings 

a. FACA, NRA, and DOE Policy. The negotiations 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 

meetings. 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.