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 use d 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 d escribe 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

- registe red 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., multipl e 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, m embers of workin g 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 curren tly 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 – Ple ase 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 o pportunity 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 at tending 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 respon sible 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 appr opriate.

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 t o 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 “Reg

Neg” 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, representativ e 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 (t he intent is for that one person to represent the totality o f theirHydraulic 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

nomination s 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 t he 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)

pro visions 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 w ill 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 r ecommendation/ 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 wo rking 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/ worki ng 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. Memb ers 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 a sk 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.