Hydraulic Institute (HI) ASRAC Questions

April 2, 2013

1. Please identify the Federal Rules which ASRAC and the “Reg-Neg” process are operating under with 

respect to determining the size of the working group, in response to the convening announcement in 

the Federal Register.

Answer – The Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) was 

established in accordance with the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. 

2, the Negotiated Rulemaking Act of 1996, 5 U.S.C. 561 et. seq., and the Administrative Procedure Act 

(APA), 5 U.S.C 551 et. seq. It is the Negotiated Rulemaking Act that states provides guidance regarding 

membership size (25 members).

2. In terms of selecting appointees to an ASRAC working group the word ‘balance’ was used numerous 

times by DOE staff and/or counsel in the context of selecting appointees. It was clear from comments 

made at the meeting that yourself, along with other senior DOE staff, would be making the selections of 

nominees to each working group. Please describe how DOE perceives and intends to achieve ‘balance’ 

on working groups. In particular, HI wishes to know the number of delegates that will be selected from 

the four, or more, major constituencies identified below:

Answer – There is no exact number of delegates from major constituencies that is being considered. 

Balance refers to making sure membership represents a diverse set of views from relevant, expert 

stakeholders. DOE is required to have a representative on the working group (just one seat), and at least 

one member of ASRAC is required to be on the working group (exact number of ASRAC member 

participation will be decided at ASRAC level). Additional information:

Anyone is welcome to nominate themselves or others for consideration - nominations are open 

to all individuals without regard to race, color, religion, sex, national origin, age, mental or 

physical handicap, marital status, or sexual orientation. To ensure that recommendations to the 

Committee take into account the needs of the diverse groups served by DOE, membership shall 

include, to the extent practicable, individuals with demonstrated ability to represent the needs 

of women and men of all racial and ethnic groups and persons with disabilities. Please note, 

however, that Federally-registered lobbyists are ineligible for nomination.

Members of working groups will be selected on the basis of established records of distinguished 

service in their professional community and their knowledge relevant to the function of the 

working group. Once the nomination period is closed, DOE will distribute the nomination list to 

ASRAC members and openly discuss and deliberate on ideal candidates to serve on the working 

group.

There are likely going to be multiple representatives of major groups (i.e., multiple representatives of 

advocates, manufacturers, utilities). It is less likely that there will be multiple representatives from a 

singular organization (i.e., Hydraulic Institute). 

3. One of HI’s concerns is that in areas where technical content is beyond the expertise or scope of 

appointees, there may be challenging engineering or economics-based discussions. A concern is that, in 

such instances, an ASRAC delegate may vote ‘his or her conscience,’ perhaps voting for a direction that 

is not technically feasible or economically justified. What working group rules will be established with 

regard to the participation of non-experts, such as those who are not familiar with pumps, pump 

systems or pump manufacturing?

Answer – As previously stated, members of working groups will be selected on the basis of established 

records of distinguished service in their professional community and their knowledge relevant to the 

function of the working group. 
Hydraulic Institute (HI) ASRAC Questions

April 2, 2013

4. At the ASRAC meeting, a representative of the Association of Home Appliance Manufacturers stated 

that during AHAM/Advocate negotiations, DOE consultants were present to provide real-time technical 

support (such as modeling support, statistical data collection and analysis, etc.).

Answer – So we are clear, there is currently no definitive movement within ASRAC to establish a working 

group for pumps rulemakings at this time (but does not mean it isn’t possible for the future). To answer 

your question more generally, there will be plenty of opportunities during working group negotiations 

that require technical support or feedback from a non-voting member and the opportunity will be made 

for that support or feedback to be given – whether it be more “informal” and someone providing 

technical feedback as a member of the public or more “formal” where the working group will schedule 

time for specific person(s) to present data. 

a) Please describe details associated with the extent, nature and scope (including limits) of such support 

to a “Reg-Neg” ASRAC working group; 

Answer – Please see above.

b) Please advise if this option is available for the traditional pump rule-making if HI were to decide not to 

participate in a “Reg-Neg” process?

Answer – No, “traditional rule-making” efforts (as they currently exist) will not include the opportunity 

for DOE consultants to be present to provide real-time technical support. 

c) If so, please explain how this can be facilitated.

Answer – Not applicable for “traditional rule-making” efforts.

d) Are such individuals actually appointed to the working group, or are they simply serving in a 

consulting capacity?

Answer - DOE consultants providing real-time technical assistance will not be voting members and will 

serve only in a consulting capacity.

e) Please clarify the status/role of DOE staff in attending ASRAC working group meetings.

Answer - ASRAC and its working groups are officially chartered by DOE, DOE presence at these meetings 

are 3 fold, but in only one instance can vote: 

1. DOE staff (more specifically Building Technologies Office) are responsible for managing ASRAC. 

More specifically, John Cymbalsky is the Designated Federal Officer and as such is responsible 

for the oversight of ASRAC and its working groups. (As DFO, Mr. Cymbalsky does not have voting 

rights, but if directed by the Building Technologies Office or more broadly by DOE, John has the 

authority to withdraw a task at any time). Other legal and technical staff may also be available 

to assist as appropriate. 

2. ASRAC and each working group is required to have one member as representative of DOE (e.g., 

the DOE representative on ASRAC is Ashley Armstrong). It is in these instances that the DOE 

person (only one per working group and one for ASRAC) is able to vote.

3. DOE contract staff will be present to assist with committee needs, etc (but are not voting 

members).

6. HI is concerned about having its representation of its 60+ pump manufacturers diluted by the “RegNeg” process.

Answer – Let me start by saying that all working group meetings will be open to the public. While most 

of the time discussions at the meetings will be between voting members, there will be opportunities for 

outside experts and members of the public to speak. With this said, representative members selected to 

serve on a working group will have the responsibility to work closely with their constituents to represent 

a unified voice as best possible (the intent is for that one person to represent the totality of their 
Hydraulic Institute (HI) ASRAC Questions

April 2, 2013

interested constituency). In addition, there will be opportunities for members to call caucuses where 

voting members can speak with present members of their constituency. 

All interest groups’ needs are considered during the formation of working groups from the set of 

nominations received. Trade associations are welcome to nominate individuals as well and are 

considered during the appointment process of working group members.

7. Please describe how a working group would be convened and administered with respect to the 

following: 

Answer – ASRAC will discuss and vote on whether to form a working group. In instances that it is 

decided to form a working group, DOE will publish a notice in the Federal Register that announces the 

intent to establish and receive nominations for the working group. The Federal Register will contain 

some general background information about the purpose and goal of the working group. After receiving 

nominations, DOE will distribute the full list of nominations, resumes, and support material to ASRAC 

members. In a closed meeting, ASRAC members and DOE will discuss and ASRAC will provide DOE with a 

recommended list of individuals to consider appointing as working group members and a nomination for 

the working group chair – it is here that ASRAC and DOE will make the effort to ensure the working 

group is balanced in viewpoints and expertise relevant to the function of the working group. Once the 

list is developed, DOE has an internal review process that is required. Once finalized, appointed 

members will be contacted and a first meeting date will be set.

The whole point of negotiated rulemaking is to convene and in good faith work towards shaping an 

outcome that the group can agree on (through consensus). We hope that anyone applying to be 

considered a member on any working group will take this into consideration and is open to negotiation. 

As working groups are working on behalf of ASRAC, ASRAC and DOE will be sure to clearly set objectives 

and timelines for the working group to work from. The timelines will likely include updates from the 

working groups, at which point it will be clear whether the working group is likely to fail at consensus. 

Please note, that DOE has the right to withdraw tasks at any time and can have working groups 

dissolved. It was decided at the first ASRAC meeting that each working group will individually define 

what consensus means for itself (i.e., working group members for every working group will define 

consensus at the first meeting). For distribution transformers, it was full unanimity, for ASRAC it is 75% 

of members casting a vote. 

We will need to confer with DOE General Counsel for a definitive answer regarding the replacement of 

members for the reasons you listed. For now, it’s safe to assume that in extreme instances (e.g., death) 

provisions can be made to have that voting seat filled. 

Members of the public are welcome to attend the meeting either by webinar or in person. Seating will 

be on a first come first saved basis. During meetings, working group members will have the ability to call 

for caucuses and confer with present members of their constituency, this includes the chance for them 

to gather constituents present and call additional constituents on the phone (calling constituents not 

physically present is the sole responsibility of members). DOE will do its best to secure onsite meeting 

spaces that can accommodate large groups, but please remember that the Appliance Standards 

Program is not the only group within DOE that requires or requests onsite meeting space. In instances its

offered and approved by DOE and all working group members, DOE will consider holding meetings at 

the office space of represented members on the working groups that may have more flexibility for 

meeting times and space. Members volunteering meeting space will not have special privileges or power 

during the proceedings and will have to accommodate the need to allow members of the public to 

attend.
Hydraulic Institute (HI) ASRAC Questions

April 2, 2013

Each working group will have deadlines imposed by DOE and ASRAC for a final recommendation/ 

progress update – with these deadlines in mind, working groups will be responsible for establishing a 

work plan/ schedule at its first meeting. Number of meetings and duration of meetings will be unique to 

each working group depending on the deadlines imposed and contentious nature of the working group’s 

topic. As stated at the first meeting, the Building Technologies Office will continue its normal process in 

parallel to ASRAC’s efforts to avoid any pitfalls in instances that ASRAC or its working groups are not able 

to reach consensus for a particular effort.

8. Will transcripts, recordings or other means of memorializing meetings and decisions be kept, and if 

so, how fast will they be made available?

Answer – Meeting transcripts are kept for every meeting and so is a meeting summary. For working 

group members, transcripts and summaries will be turned around quickly (usually within a few business 

days). Official meeting summaries and transcripts take longer and are approved by Committee/ working 

group members.

9. How will the working group deal with the need to base decisions, in part, on confidential information 

shared separately with only some of the parties? Is it possible that confidential information would be 

needed to be discussed during a working group meeting? If so, how is this information protected?

Answer – As the meetings are open to the public, business confidential information is not to be 

discussed and therefore no need to worry about basing any decisions on or protecting it. Members of 

the working groups cannot be expected to negotiate and come to consensus on a particular issue if 

certain parties are withholding information from the entire group to consider. In instances it is 

determined that a working group cannot in good faith work towards a consensus decision the working 

group will either not be formed or be dissolved and DOE will resume business as normal.

10. During working group meetings, will there be webinar access for the public? If so, will webinar 

attendees be able to ask questions or make comments?

Answer – Yes, webinar registration information for meetings will be included in the Federal Register 

notice when the meeting is announced. Public attendees (including those on webinar) will be given the 

opportunity to ask questions or make comments when the floor is open for them to do so.