[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Proposed Rules]
[Pages 44036-44039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17505]



10 CFR Part 429


Appliance Standards and Rulemaking Federal Advisory Committee: 
Notice of Intent To Establish the Commercial/Industrial Pumps Working 
Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy 
Conservation Standards for Commercial/Industrial Pumps

AGENCY: Office of Energy Efficiency and Renewable Energy, U.S. 
Department of Energy.

ACTION: Notice of intent.


SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
giving notice that it intends to establish a negotiated rulemaking 
working group under the Appliance Standards and Rulemaking Federal 
Advisory Committee (ASRAC) in accordance with the Federal Advisory 
Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) to 
negotiate proposed Federal standards for the energy efficiency of 
commercial/industrial pumps. The purpose of the working group will be 
to discuss and, if possible, reach consensus on a proposed rule for the 
energy efficiency of commercial/industrial pumps, as authorized by the 
Energy Policy and Conservation Act (EPCA) of 1975, as amended. The 
working group will consist of representatives of parties having a 
defined stake in the outcome of the proposed standards, and will 
consult as appropriate with a range of experts on technical issues.

DATES: Written comments and request to be appointed as members of the 
working group are welcome and should be submitted by August 22, 2013.

ADDRESSES: Interested person may submit comments, identified by docket 
number EERE-2013-BT-NOC-0039, by any of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    2. Email: [email protected]. Include docket number EERE-2013-BT-NOC-
0039 in the subject line of the message.
    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building 
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW., 
Washington, DC 20585-0121. If possible, please submit all items on a 
compact disc (CD), in which case it is not necessary to include printed 
    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 
600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, 
please submit all items on a CD, in which case it is not necessary to 
include printed copies.
    No telefacsimilies (faxes) will be accepted.
    Docket: The docket is available for review at www.regulations.gov, 
including Federal Register notices, public meeting attendee lists and 
transcripts, comments, and other supporting documents/materials. All 
documents in the docket are listed in the www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure.

FOR FURTHER INFORMATION CONTACT: John Cymbalsky, U.S. Department of 
Energy, Office of Building Technologies (EE-2J), 950 L'Enfant Plaza 
SW., Washington, DC 20024. Phone: 202-287-1692. Email: 
[email protected]



I. Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested

I. Authority

    This notice of intent, announcing DOE's intent to negotiate a 
proposed regulation setting energy efficiency standards for commercial/
industrial pumps, was developed under the authority of sections 563 and 
564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320). The regulation 
setting energy efficiency standards for commercial/industrial pumps 
that DOE is proposing to develop under a negotiated rulemaking will be 
developed under the authority of EPCA, as amended, 42 U.S.C. 6311(1)(A) 
and 42 U.S.C. 6291 et seq.

II. Background

    As required by the NRA, DOE is giving notice that it is 
establishing a working group under ASRAC to develop proposed energy 
efficiency standards for commercial/industrial pumps. EPCA, as amended, 
directs DOE to adopt energy conservation standards for commercial/
industrial pumps for which standards would be technologically feasible 
and economically justified, and would result in significant energy 
savings. There currently are no energy conservation standards for 
commercial/industrial pumps. On June 13, 2011, DOE issued a request for 
information (76 FR 34192) regarding:
     Definition(s) of pumps, pump product classes, and 
diversity of pump types within pump product classes;
     Energy use by pumps;
     Overview of the industrial and commercial pump market, 
including shipments and efficiencies ranges;
     Availability and applicability of U.S. and international 
test procedures for pumps; and
     Assistance and resources available from stakeholders, 
states, local jurisdictions, and others.
    Comments received, available in the rulemaking docket (EERE-2011-
BT-STD-0031), were used to develop a framework document to explain the 
relevant issues, analyses, and processes it anticipates using when 
considering new energy conservation standards for commercial/industrial 

A. Negotiated Rulemaking

    DOE has decided to use the negotiated rulemaking process to develop 
proposed energy efficiency standards for commercial/industrial pumps. 
Under EPCA, Congress mandated that DOE develop regulations establishing 
energy efficiency standards for covered residential and commercial 
appliances that are designed to achieve the maximum improvement in 
energy efficiency that are technologically feasible and economically 
justified. 42 U.S.C. 6295(o)(2)(A). The primary reason for using the 
negotiated rulemaking process for developing a proposed Federal 
standard is that stakeholders strongly support a consensual rulemaking 
effort. DOE

[[Page 44037]]

believes such a regulatory negotiation process will be less adversarial 
and better suited to resolving complex technical issues. An important 
virtue of negotiated rulemaking is that it allows expert dialog that is 
much better than traditional techniques at getting the facts and issues 
right and will result in a proposed rule that will effectively reflect 
Congressional intent.
    A regulatory negotiation will enable DOE to engage in direct and 
sustained dialog with informed, interested, and affected parties when 
drafting the regulation, rather than obtaining input during a public 
comment period after developing and publishing a proposed rule. Gaining 
this early understanding of all parties' perspectives allows DOE to 
address key issues at an earlier stage of the process, thereby allowing 
more time for an iterative process to resolve issues. A rule drafted by 
negotiation with informed and affected parties is expected to be 
potentially more pragmatic and more easily implemented than a rule 
arising from the traditional process. Such rulemaking improvement is 
likely to provide the public with the full benefits of the rule while 
minimizing the potential negative impact of a proposed regulation 
conceived or drafted without the full prior input of outside 
knowledgeable parties. Because a negotiating working group includes 
representatives from the major stakeholder groups affected by or 
interested in the rule, the number of public comments on the proposed 
rule may be decreased. DOE anticipates that there will be a need for 
fewer substantive changes to a proposed rule developed under a 
regulatory negotiation process prior to the publication of a final 

B. The Concept of Negotiated Rulemaking

    Usually, DOE develops a proposed rulemaking using Department staff 
and consultant resources. Typically, a preliminary analysis is vetted 
for stakeholder comments after a Framework Document is published and 
comments taken thereon. After the notice of proposed rulemaking is 
published for comment, affected parties may submit arguments and data 
defining and supporting their positions with regard to the issues 
raised in the proposed rule. Congress noted in the NRA, however, that 
regulatory development may ``discourage the affected parties from 
meeting and communicating with each other, and may cause parties with 
different interests to assume conflicting and antagonistic positions * 
* *.'' 5 U.S.C. 561(2)(2). Congress also stated that ``adversarial 
rulemaking deprives the affected parties and the public of the benefits 
of face-to-face negotiations and cooperation in developing and reaching 
agreement on a rule. It also deprives them of the benefits of shared 
information, knowledge, expertise, and technical abilities possessed by 
the affected parties.'' 5 U.S.C. 561(2)(3).
    Using negotiated rulemaking to develop a proposed rule differs 
fundamentally from the Department centered process. In negotiated 
rulemaking, a proposed rule is developed by an advisory committee or 
working group, chartered under FACA, 5 U.S.C. App. 2, composed of 
members chosen to represent the various interests that will be 
significantly affected by the rule. The goal of the advisory committee 
or working group is to reach consensus on the treatment of the major 
issues involved with the rule. The process starts with the Department's 
careful identification of all interests potentially affected by the 
rulemaking under consideration. To help with this identification, the 
Department publishes a notice of intent such as this one in the Federal 
Register, identifying a preliminary list of interested parties and 
requesting public comment on that list. Following receipt of comments, 
the Department establishes an advisory committee or working group 
representing the full range of stakeholders to negotiate a consensus on 
the terms of a proposed rule. Representation on the advisory committee 
or working group may be direct; that is, each member may represent a 
specific interest, or may be indirect, such as through trade 
associations and/or similarly-situated parties with common interests. 
The Department is a member of the advisory committee or working group 
and represents the Federal government's interests. The advisory 
committee or working group chair is assisted by a neutral mediator who 
facilitates the negotiation process. The role of the mediator, also 
called a facilitator, is to apply proven consensus-building techniques 
to the advisory committee or working group process.
    After an advisory committee or working group reaches consensus on 
the provisions of a proposed rule, the Department, consistent with its 
legal obligations, uses such consensus as the basis of its proposed 
rule, which then is published in the Federal Register. This publication 
provides the required public notice and provides for a public comment 
period. Other participants and other interested parties retain their 
rights to comment, participate in an informal hearing (if requested), 
and request judicial review. DOE anticipates, however, that the pre-
proposal consensus agreed upon by the advisory committee or working 
group will narrow any issues in the subsequent rulemaking.

C. Proposed Rulemaking for Energy Efficiency Standards for Commercial/
Industrial Pumps

    The NRA enables DOE to establish an advisory committee or working 
group if it is determined that the use of the negotiated rulemaking 
process is in the public interest. DOE intends to develop Federal 
regulations that build on the depth of experience accrued in both the 
public and private sectors in implementing standards and programs.
    DOE has determined that the regulatory negotiation process will 
provide for obtaining a diverse array of in-depth input, as well as an 
opportunity for increased collaborative discussion from both private-
sector stakeholders and government officials who are familiar with 
energy efficiency of commercial/industrial pumps.

D. Department Commitment

    In initiating this regulatory negotiation process to develop energy 
efficiency standards for commercial/industrial pumps, DOE is making a 
commitment to provide adequate resources to facilitate timely and 
successful completion of the process. This commitment includes making 
the process a priority activity for all representatives, components, 
officials, and personnel of the Department who need to be involved in 
the rulemaking, from the time of initiation until such time as a final 
rule is issued or the process is expressly terminated. DOE will provide 
administrative support for the process and will take steps to ensure 
that the advisory committee or working group has the dedicated 
resources it requires to complete its work in a timely fashion. 
Specifically, DOE will make available the following support services: 
Properly equipped space adequate for public meetings and caucuses; 
logistical support; word processing and distribution of background 
information; the service of a facilitator; and such additional research 
and other technical assistance as may be necessary.
    To the maximum extent possible consistent with the legal 
obligations of the Department, DOE will use the consensus of the 
advisory committee or working group as the basis for the rule the 
Department proposes for public notice and comment.

[[Page 44038]]

E. Negotiating Consensus

    As discussed above, the negotiated rulemaking process differs 
fundamentally from the usual process for developing a proposed rule. 
Negotiation enables interested and affected parties to discuss various 
approaches to issues rather than asking them only to respond to a 
proposal developed by the Department. The negotiation process involves 
a mutual education of the various parties on the practical concerns 
about the impact of standards. Each advisory committee or working group 
member participates in resolving the interests and concerns of other 
members, rather than leaving it up to DOE to evaluate and incorporate 
different points of view.
    A key principle of negotiated rulemaking is that agreement is by 
consensus of all the interests. Thus, no one interest or group of 
interests is able to control the process. The NRA defines consensus as 
the unanimous concurrence among interests represented on a negotiated 
rulemaking committee or working group, unless the committee or working 
group itself unanimously agrees to use a different definition. 5 U.S.C. 
562. In addition, experience has demonstrated that using a trained 
mediator to facilitate this process will assist all parties, including 
DOE, in identifying their real interests in the rule, and thus will 
enable parties to focus on and resolve the important issues.

III. Proposed Negotiating Procedures

A. Key Issues for Negotiation

    The following issues and concerns will underlie the work of the 
Negotiated Rulemaking Committee on Energy Efficiency Standards for 
commercial/industrial pumps:
     DOE's key issues include assuring full compliance with 
statutory mandates. Congress has mandated that DOE establish minimum 
energy efficiency standards that are technologically feasible and 
economically justified.
     The committee must find ways to balance the goals and 
priorities of State regulatory programs and DOE's program for energy 
efficiency standards.
     Manufacturers desire that standards not diminish or 
constrain innovation for these products.
     Environmental advocates seek to ensure that standards 
achieve the maximum energy savings that are technologically feasible 
and economically justifiable.
    To examine the underlying issues outlined above, and others not yet 
articulated, all parties in the negotiation will need DOE to provide 
data and an analytic framework complete and accurate enough to support 
their deliberations. DOE's analyses must be adequate to inform a 
prospective negotiation--for example, a preliminary Technical Support 
Document or equivalent must be available and timely.

B. Formation of Working Group

    A working group will be formed and operated in full compliance with 
the requirements of FACA and in a manner consistent with the 
requirements of the NRA. DOE has determined that the working group not 
exceed 25 members. The Department believes that more than 25 members 
would make it difficult to conduct effective negotiations. DOE is aware 
that there are many more potential participants than there are 
membership slots on the working group. The Department does not believe, 
nor does the NRA contemplate, that each potentially affected group must 
participate directly in the negotiations; nevertheless, each affected 
interest can be adequately represented. To have a successful 
negotiation, it is important for interested parties to identify and 
form coalitions that adequately represent significantly affected 
interests. To provide adequate representation, those coalitions must 
agree to support, both financially and technically, a member of the 
working group whom they choose to represent their interests.
    DOE recognizes that when it establishes energy efficiency standards 
for residential products and commercial equipment, various segments of 
society may be affected in different ways, in some cases producing 
unique ``interests'' in a proposed rule based on income, gender, or 
other factors. The Department will pay attention to providing that any 
unique interests that have been identified, and that may be 
significantly affected by the proposed rule, are represented.
    FACA also requires that members of the public have the opportunity 
to attend meetings of the full committee and speak or otherwise address 
the committee during the public comment period. In addition, any member 
of the public is permitted to file a written statement with the 
advisory committee. DOE plans to follow these same procedures in 
conducting meetings of the working group.

C. Interests Involved/Working Group Membership

    DOE anticipates that the working group will comprise no more than 
25 members who represent affected and interested stakeholder groups, at 
least one of whom must be a member of the ASRAC. As required by FACA, 
the Department will conduct the negotiated rulemaking with particular 
attention to ensuring full and balanced representation of those 
interests that may be significantly affected by the proposed rule 
governing standards for the energy efficiency of commercial/industrial 
pumps. Section 562 of the NRA defines the term interest as ``with 
respect to an issue or matter, multiple parties which have a similar 
point of view or which are likely to be affected in a similar manner.'' 
Listed below are parties the Department to date has identified as being 
``significantly affected'' by a proposed rule regarding the energy 
efficiency of commercial/industrial pumps.

 The Department of Energy
 Commercial/industrial pumps manufacturers and trade 
associations representing manufacturers
 Component manufacturers and related suppliers
 Energy efficiency/environmental advocacy groups

    One purpose of this notice of intent is to determine whether 
Federal standards regarding the energy efficiency of commercial/
industrial pumps will significantly affect interests that are not 
listed above. DOE invites comment and suggestions on its initial list 
of significantly affected interests.
    Members may be individuals or organizations. If the effort is to be 
fruitful, participants on the working group should be able to fully and 
adequately represent the viewpoints of their respective interests. This 
document gives notice of DOE's process to other potential participants 
and affords them the opportunity to request representation in the 
negotiations. Those who wish to be appointed as members of the working 
group, should submit a request to DOE, in accordance with the public 
participation procedures outlined in the DATES and ADDRESSES sections 
of this notice of intent. Membership of the working group is likely to 
     Attendance at approximately five (5), one (1) to two (2) 
day meetings;
     Travel costs to those meetings; and
     Preparation time for those meetings.
    Members serving on the working group will not receive compensation 
for their services. Interested parties who are not selected for 
membership on the working group may make valuable contributions to this 
negotiated rulemaking effort in any of the following ways:
     The person may request to be placed on the working group 

[[Page 44039]]

list and submit written comments as appropriate.
     The person may attend working group meetings, which are 
open to the public; caucus with his or her interest's member on the 
working group; or even address the working group during the public 
comment portion of the working group meeting.
     The person could assist the efforts of a workgroup that 
the working group might establish.
    A working group may establish informal workgroups, which usually 
are asked to facilitate committee deliberations by assisting with 
various technical matters (e.g., researching or preparing summaries of 
the technical literature or comments on specific matters such as 
economic issues). Workgroups also might assist in estimating costs or 
drafting regulatory text on issues associated with the analysis of the 
costs and benefits addressed, or formulating drafts of the various 
provisions and their justifications as previously developed by the 
working group. Given their support function, workgroups usually consist 
of participants who have expertise or particular interest in the 
technical matter(s) being studied. Because it recognizes the importance 
of this support work for the working group, DOE will provide 
appropriate technical expertise for such workgroups.

D. Good Faith Negotiation

    Every working group member must be willing to negotiate in good 
faith and have the authority, granted by his or her constituency, to do 
so. The first step is to ensure that each member has good 
communications with his or her constituencies. An intra-interest 
network of communication should be established to bring information 
from the support organization to the member at the table, and to take 
information from the table back to the support organization. Second, 
each organization or coalition therefore should designate as its 
representative a person having the credibility and authority to ensure 
that needed information is provided and decisions are made in a timely 
fashion. Negotiated rulemaking can require the appointed members to 
give a significant sustained for as long as the duration of the 
negotiated rulemaking. Although the ASRAC advisory committee charter 
will be in effect for 2 years from the date it is filed with Congress, 
DOE expects the working group's deliberations to conclude or be 
terminated earlier than that. Other qualities of members that can be 
helpful are negotiating experience and skills, and sufficient technical 
knowledge to participate in substantive negotiations.
    Certain concepts are central to negotiating in good faith. One is 
the willingness to bring all issues to the bargaining table in an 
attempt to reach a consensus, as opposed to keeping key issues in 
reserve. The second is a willingness to keep the issues at the table 
and not take them to other forums. Finally, good faith includes a 
willingness to move away from some of the positions often taken in a 
more traditional rulemaking process, and instead explore openly with 
other parties all ideas that may emerge from the working group's 

E. Facilitator

    The facilitator will act as a neutral in the substantive 
development of the proposed standard. Rather, the facilitator's role 
generally includes:
     Impartially assisting the members of the working group in 
conducting discussions and negotiations; and
     Impartially assisting in performing the duties of the 
Designated Federal Official under FACA.

F. Department Representative

    The DOE representative will be a full and active participant in the 
consensus building negotiations. The Department's representative will 
meet regularly with senior Department officials, briefing them on the 
negotiations and receiving their suggestions and advice so that he or 
she can effectively represent the Department's views regarding the 
issues before the working group. DOE's representative also will ensure 
that the entire spectrum of governmental interests affected by the 
standards rulemaking, including the Office of Management and Budget, 
the Attorney General, and other Departmental offices, are kept informed 
of the negotiations and encouraged to make their concerns known in a 
timely fashion.

G. Working Group and Schedule

    After evaluating the comments submitted in response to this notice 
of intent and the requests for nominations, DOE will either inform the 
members of the working group that they have been selected or determine 
that conducting a negotiated rulemaking is inappropriate.
    DOE will advise working group members of administrative matters 
related to the functions of the working group before beginning. DOE 
will establish a meeting schedule based on the settlement agreement and 
produce the necessary documents so as to adhere to that schedule. While 
the negotiated rulemaking process is underway, DOE is committed to 
performing much of the same analysis as it would during a normal 
standards rulemaking process and to providing information and technical 
support to the working group.

IV. Comments Requested

    DOE requests comments on whether it should use negotiated 
rulemaking for its rulemaking pertaining to the energy efficiency of 
commercial/industrial pumps and the extent to which the issues, 
parties, and procedures described above are adequate and appropriate. 
DOE also requests comments on which parties should be included in a 
negotiated rulemaking to develop draft language pertaining to the 
energy efficiency of commercial/industrial pumps and suggestions of 
additional interests and/or stakeholders that should be represented on 
the working group. All who wish to participate as members of the 
working group should submit a request for nomination to DOE.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's notice 
of proposed rulemaking.

    Issued in Washington, DC, on July 16, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2013-17505 Filed 7-22-13; 8:45 am]