[Federal Register Volume 81, Number 22 (Wednesday, February 3, 2016)]
[Proposed Rules]
[Pages 5658-5661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01979]

[[Page 5658]]



10 CFR Part 430

[Docket Number EERE-2016-BT-STD-0004]
RIN 1904-AD61

Appliance Standards and Rulemaking Federal Advisory Committee: 
Notice of Intent To Establish a Working Group for Circulator Pumps To 
Negotiate a Notice of Proposed Rulemaking for Energy Conservation 

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

ACTION: Notice of intent and announcement of public meeting.


SUMMARY: The U.S. Department of Energy (``DOE'' or, in context, ``the 
Department'') is giving notice of a public meeting and that DOE 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 amended 
energy conservation standards for circulator pumps. The purpose of the 
working group will be to discuss and, if possible, reach consensus on a 
proposed rule regarding definitions, test procedures, and energy 
conservation standards, 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. Per the ASRAC Charter, the 
working group is expected to make a concerted effort to negotiate a 
final term sheet by September 30, 2016.

DATES: DOE will host the first Working Group meeting, which is open to 
the public, and will be broadcast via webinar on March 3, 2016 from 9 
a.m. to 5 p.m. in Washington, DC.
    Written comments and applications (i.e., cover letter, resume, and 
answers to application questions) to be appointed as members of the 
working group are welcome and should be submitted by February 17, 2016.

ADDRESSES: U.S. Department of Energy, Building Technologies Office, 950 
L'Enfant Plaza SW., Washington, DC 20024, Room 6097. Individuals will 
also have the opportunity to participate by webinar. To register for 
the webinar and receive call-in information, please register https://attendee.gotowebinar.com/register/2255868378911535105.
    Interested person may submit comments and an application for 
membership (which must include a cover letter describing their 
experience on negotiating committees and their direct impact on the 
negotiations, if applicable, and listed qualifications for being 
selected to this working group and a resume,), identified by docket 
number EERE-2016-BT-STD-0004, via 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-2016-BT-STD-
0004 in the subject line of the message.
    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building 
Technologies Office, Mailstop EE-5B, 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 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 EERE-2016-BT-STD-0004 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
V. Public Participation
VI. Approval of the Office of the Secretary

I. Authority

    DOE is announcing its intent to negotiate proposed definitions, 
test procedures, and energy conservation standards for circulator pumps 
under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-
570, Pub. L. 104-320). The regulation of circulator pump standards 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) 
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 discuss proposed energy 
conservation standards for circulator pumps.

A. Negotiated Rulemaking

    DOE is supporting the use of the negotiated rulemaking process to 
discuss and develop proposed definitions, test procedures, and energy 
conservation standards for circulator pumps The primary reason for 
using the negotiated rulemaking process for this product is that 
stakeholders strongly support a consensual rulemaking effort. DOE 
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. 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 

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B. The Concept of Negotiated Rulemaking

    Usually, DOE develops a proposed rulemaking using Department staff 
and consultant resources. 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 Test Procedures and Energy Conservation 
Standards Regarding Circulator 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 is supporting the use of the regulatory negotiation process in 
order to 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 the energy efficiency of circulator pumps.

D. Department Commitment

    In initiating this regulatory negotiation process to develop 
definitions, test procedures, and energy conservation standards for 
circulator 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.

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 for circulator pumps and be limited to 
the items specified below:
     Definitions of circulator pumps,
     Test procedures for circulator pumps, and
     Energy conservation standards for circulator pumps.
    To examine the underlying issues outlined above, all parties in the 
negotiation will need DOE to provide

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data and an analytic framework complete and accurate enough to support 
their deliberations. DOE expects to start the Working Group's 
discussions with a list of analytical issues and data requests that 
should be considered for the negotiations and encourages interested 
parties to submit any data to be considered to the Working Group.

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 
shall 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 considers adding covered products and 
establishing 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 circulator 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 circulator pumps.
     The Department of Energy;
     Trade Associations representing refrigeration system 
manufacturers of circulator pumps;
     Manufacturers of circulator pumps system components and 
related suppliers;
     Distributors or contractors selling or installers of 
circulator pumps;
     Energy efficiency/environmental advocacy groups; and
     Commercial customers.
    One purpose of this notice of intent is to determine whether 
Federal regulations for circulator 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 in 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 eight (8), one (1)- to two 
(2)-day meetings (with the potential for two (2) additional one (1)- or 
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 
mailing 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. Other qualities of members that can be helpful 
are negotiating experience and skills,

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and sufficient technical knowledge to participate in substantive 
    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.
    Per the ASRAC Charter, the working group is expected to make a 
concerted effort to negotiate a final term sheet by September 30, 2016.
    DOE will advise working group members of administrative matters 
related to the functions of the working group before beginning. 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 which parties should be included in a 
negotiated rulemaking to develop draft language pertaining to the 
energy efficiency of circulator 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. Public Participation

    Members of the public are welcome to observe the business of the 
meeting and, if time allows, may make oral statements during the 
specified period for public comment. To attend the meeting and/or to 
make oral statements regarding any of the items on the agenda, email 
[email protected] In the email, please indicate your name, organization 
(if appropriate), citizenship, and contact information. Please note 
that foreign nationals participating in the public meeting are subject 
to advance security screening procedures which require advance notice 
prior to attendance at the public meeting. If a foreign national wishes 
to participate in the public meeting, please inform DOE as soon as 
possible by contacting Ms. Regina Washington at (202) 586-1214 or by 
email: [email protected] so that the necessary procedures 
can be completed. Anyone attending the meeting will be required to 
present a government photo identification, such as a passport, driver's 
license, or government identification. Due to the required security 
screening upon entry, individuals attending should arrive early to 
allow for the extra time needed.
    Due to the REAL ID Act implemented by the Department of Homeland 
Security (DHS) recent changes regarding ID requirements for individuals 
wishing to enter Federal buildings from specific states and U.S. 
territories. Driver's licenses from the following states or territory 
will not be accepted for building entry and one of the alternate forms 
of ID listed below will be required.
    DHS has determined that regular driver's licenses (and ID cards) 
from the following jurisdictions are not acceptable for entry into DOE 
facilities: Alaska, Louisiana, New York, American Samoa, Maine, 
Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.
    Acceptable alternate forms of Photo-ID include: U. S. Passport or 
Passport Card; An Enhanced Driver's License or Enhanced ID-Card issued 
by the states of Minnesota, New York or Washington (Enhanced licenses 
issued by these states are clearly marked Enhanced or Enhanced Driver's 
License); A military ID or other Federal government issued Photo-ID 

VI. Approval of the Office of the Secretary

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

    Issued in Washington, DC, on January 27, 2016.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2016-01979 Filed 2-2-16; 8:45 am]