Tag Archives: Request for Information (RFI)

Advice for Effective Public Comments in the Federal Rulemaking Process

Having spent a few years earlier in my career entrenched in the rulemaking process behind a number of regulations from the Department of Energy concerning appliance standards, I am able to empathize with the teams of analysts at federal agencies that are tasked with receiving and addressing the feedback that comes in during public comment periods. During every rulemaking process, there are real humans reading every single public comment received (even when those comments number in the thousands), cataloging the specific concerns from the stakeholders, conducting research and analysis regarding the points that were brought up, and ultimately responding to those comments– either by detailing why the existing analysis already addresses the comment or, if the stakeholder comment has successfully done its job, adjusting the analysis during the next round of the rulemaking to account for the issues brought up in the comment.

While submitting a comment in response to the federal rulemaking process can seem intimidating, the truth is that every rulemaking process receives comments from every sort of stakeholder, large and small, with the widest range of expertise on the topics possible (see previous article on how the rulemaking process works and what the function of the public comment period is here). Those involved in the regulatory process know to expect multi-page comment submissions with loads of data and testimonials from powerful trade associations or advocacy groups, but it is also common to receive more pointed and specific comments from concerned private citizens who don’t have any experience in the relevant industry, but simply have their own opinions and concerns. The beauty of the public rulemaking process, however, is that every single comment must be summarized in the next step of the rulemaking, along with a response as to how the new analysis addresses the concerns, no matter who submits it. With that in mind, regardless of whether you are representing a larger organization or just your personal interests as a citizen, what follows are six methods you can employ that will ensure your comment most effectively influence the federal rulemaking process.



1. Be accurate

This piece of advice should go without saying, but rest assured I have found that it needs to be said. If a comment submitted to the federal agency is found to have a basic inaccuracy in it, then the rest of the comment on that topic will be called into question and it can potentially carry less weight. An underlying inaccuracy in the comment will make responding to, or dismissing, the whole comment all too easy. So while it may be overly obvious, if you hope to make an impact on a regulatory rulemaking then be sure to verify the accuracy in everything you say.

 

2. Be specific with issues and provide alternatives

If you want your comment to be addressed specifically in the analysis, be sure to include specifics in the comment. Don’t say that something would be detrimental to businesses– state exactly what the detriment would be and why. Don’t state that a discussed technology would not be technologically or economically feasible– state what technology would be feasible and note what exactly is preventing the original technology from being so. Don’t state that a pricing analysis is unrepresentative of the market– describe how and why the analysis is off.

The point is that if the federal agency is given a vague reason for why the analysis is ‘bad’ or ‘off,’ but not given any specifics, then there is nothing tangible to address. The rebuttal to the non-specific comment can simply be to restate the original analysis and reasons behind it. However if a specific reasoning and alternative is instead provided, then you are giving the federal agency something meaty to address. The subsequent analysis must either move towards your alternative or give details about why that alternative is incorrect. But if your alternative is airtight and there are not holes to poke in it, then you will likely find success in shifting the analysis behind the rulemaking.

 

3. Address the issues the rulemaking asks about– but don’t be restricted to those topics

When reviewing a rulemaking document, whether in the early stages with a Request for Information (RFI) or later during the Notice of Proposed Rulemaking (NOPR) stage, you will often find specific issues called out on which the agency behind the rulemaking is seeking comment. These issues are numbered for ease of finding them, and sometimes (but not always!) listed in a single place at the end of the notice. If you do not see a list at the end of the notice, be sure to go through the document carefully to find them all in-line, where they’ll appear as in the example below.

Source

When the agency is pointing out these specific issues on which it requests comment, that shows where the most impact of a comment might be received. These are the issues that they might have the least amount of information (or they have information but recognize it’s outdated) concerning, or where they recognize there is considerable debate. Regardless of the reason, all comments on each of these numbered issues end up getting aggregated to get a clear picture of the available information and data before a decision on the direction of the rulemaking is made (though it is important to note that it is not decided by what received the most comments, but rather the accuracy and quality of the comments outweigh the quantity of comments received on an issue). If your position on the rulemaking is related to any of these specifically identified issues, make sure to frame your comment in direct response to the question asked (it even helps to note by number which issue your comment is addressing).

With all of that said, you should not feel that the identified issues are the only ones eligible for response or that the agency will not put equal weight behind comments regarding other aspects of the analysis. You might have comment or information on a topic on which the agency wasn’t focused or didn’t realize was controversial. So while it is important to fit your comments into the box of the issues identified by the notice if they are relevant to those issues, do not feel restricted to those topics. You just might be the only one to bring up this new issue, influencing the next stage of the rulemaking to address it more specifically.

 

4. Include hard data

The best way to back up your comment and encourage a specific response in the next stage in the analysis is to include your own data as evidence. Perhaps you think this data was overlooked by original analysis, or maybe you think the data that was included originally does not tell the whole story. Either way, if your data supports a change in the analysis and a different conclusion, then providing the full set of that data in your public comment is the best way to influence the rulemaking. Doing so will force the next stage of the analysis to either include that data (and thus changing the course of the analysis towards your desired outcome) or at the very least will require the next stage of the analysis to refute your data.

 

5. Include sources

Similar to including your own hard data, crucial to an effective public comment is providing evidence towards your points. Providing a comment that breaks down to be essentially subjective is unlikely to be effective, but if you can demonstrate your points with sources– e.g., scientific studies, experimental results, industry information, or marketing analysis, then the comment will make a bigger splash. The more you can ‘show’ your point rather than ‘tell’ it, the more substance and weight your comment will have.

 

6. Offer to follow up

An under-utilized strategy with regards to public comments on the public rulemaking process is making yourself available to the federal agency. The public comment stands on the record as a written statement of your thoughts and concerns on the rulemaking, but in commenting you can also offer to discuss the points further with the agency pursuing the rulemaking. Doing so may result in you being interviewed in the next fact-finding stage of the analysis, or you might also be invited to the next public meeting on the rulemaking to discuss your concerns further. These conversations can be the most valuable tool for really getting your point across and making sure the agency understands the basis of your viewpoint. Written comments only have the opportunity for a single back and forth between commenter and government agency, but conversations allow for the complete back-and-forth required for full understanding between the parties.

 

Conclusion

While there is no guarantee any single public comment will change the course of a particular rulemaking, if you follow these six guidelines then there is a greater chance that your comment will be well-received by the agency and carry the weight of consideration it deserves. If you have any additional questions on this process, don’t hesitate to reach out in the comments below or by contacting me directly.

Additional Reading

A Guide to the Public Rulemaking Process: Office of the Federal Register

Frequently Asked Questions: Office of Information and Regulatory Affairs

Notice and Comment: Justia

Notice-and-Comment Rulemaking: Center for Effective Government

Policy Rulemaking for Dummies

Rulemaking Process and Steps to Comment: The Network for Public Health Law

Tips for Submitting Effective Comments: Regulations.gov

 

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Federal Register Notice: Test Procedure for Distribution Transformers: Request for Information

The Department of Energy (DOE) published a Notice of Request for Information (RFI) in the September 22, 2017 issue of the Federal Register (82 FR 44347) on the test procedure for distribution transformers. This article intended to break down what exactly is being requested by the DOE, the steps that have come before and will come after this, and what it might mean for you.

What is this notice?

I’ve covered what an RFI entails my article on the DOE’s RFI for its net metering analysis, as well as the overall federal rulemaking process in the Policy Rulemaking Process for Dummies article—so click on those links to get the background information on those aspects of this process. However I have not had a chance to detail the DOE’s dealing with test procedures.



As detailed in the ‘Authority and Background’ section of the RFI, the Energy Policy and Conservation Act of 1975 (EPCA) authorizes DOE to regulate the energy efficiency of a wide array of covered consumer products and industrial equipment. Among that list of equipment is distribution transformers. As such, DOE first established regulatory standards for distribution transformers in 2007, and most recently completed full rulemaking process to update to the energy conservation standards for distribution transformers in 2013, which took effect in 2016. These standards set minimum energy efficiency standards for the equipment based on the type of distribution transformer, the applicable kVA rating, and BIL rating, and those final standards can be found here.

The authority of EPCA calls on DOE to not just set the minimum energy efficiency standards for distribution transformers (and other equipment), though. DOE is also responsible for setting the testing requirements, which manufacturers must use as a basis to 1) certify to DOE that their equipment complies with standards, and 2) make representations of the efficiency of their equipment to the public (e.g., through in manufacturer catalogs). In other words, the official DOE test procedure dictates the testing setup and methods in which the efficiency of the equipment is measured.

DOE currently has test procedures for distribution transformers, which can be found here. These test procedures were published in 2006 when the first efficiency standards for the equipment were published as well. As noted in this RFI, “EPCA requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including distribution transformers, to determine whether amended test procedures would more accurately or fully comply with the requirements for test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle.” In fact, during the 2013 update to the energy conservation standards for distribution transformers, DOE did just that and determined that the current test procedures were satisfactory and did not require an amendment. However during that rulemaking process, certain stakeholders took advantage of the opportunity to make a public comment and noted that the requirements for ‘percent of nameplate-rated load’, or PUL, of the test procedure might not be appropriate and should be addressed in a future test procedure rulemaking. This RFI published by DOE is the beginning of that promised future test procedure rulemaking on distribution transformers, set to give consideration to the test PUL requirements.

Background of Distribution Transformers

As detailed in the RFI, a transformer is “a device consisting of 2 or more coils of insulated wire that transfers alternating current by electromagnetic induction from 1 coil to another to change the original voltage or current value.” 10 CFR 431.192  Distribution transformers, according to the DOE definition, are specifically identified based on their input and output voltage and other electrical characteristics. Put simply, distribution transformers are the pieces of equipment that take the high-voltage power from transmission lines and step that power down to its safe, final voltage before it is sent to the customers (in their homes, commercial buildings, etc.). These distribution transformers can be found either on a utility pole or in a locked box on the ground. Depending on the area, a single distribution transformer might serve one customer (in a remote rural area) or it might serve many customers (in a dense urban area). Further, a single large industrial facility might require multiple distribution transformers of its own.

On the left is a utility-pole distribution transformer, while the right is a pad-mount distribution transformer. I can’t be the only one who has nostalgia looking at the one on the right and of using it as a base in kickball or as home base in capture the flag until my mom yelled at us to stop playing on it, right?

The full current test procedure for distribution transformers can be found here, which specifies the test system accuracy required; the methods for measuring resistance, losses, and efficiency value of the transformer; and the test equipment calibration and certification.

What is being requested

This RFI is the beginning of a full rulemaking cycle on the test procedures for distributed transformers, so this is the opportunity for stakeholders to make an early and strong impact on the direction of the rulemaking.

The main issue that was brought up during the 2013 energy conservation standards rulemaking with regard to the test procedure was the appropriateness of the PUL specification. The discussion of this issue centered on the idea that the PUL on which the transformers were tested, and thus the PUL on which the resultant declared efficiencies were based, are potentially not representative of the PUL at which the transformers would operate during actual use. If this is the case, then customers seeking out the transformer that would use the least energy might be misled, and transformers that actually save more energy than others in use might be found non-compliant with regulations. To address this issue, DOE is requesting comment on the following:

  • Issue 1: Any data or information on the PUL used during the first year of service for distributed transformers;
  • Issue 2: Typical PUL values used in the population of distributed transformers;
  • Issue 3: Whether data provided by manufacturers represents first year of service or full lifetime;
  • Issue 4: Whether transformer loads increase over time; and
  • Issue 5: How much the efficiency of a transformer effects the purchasing decision of customers.

DOE is also going to investigate the issue of temperature correction and if the current practice of calculating losses by assuming the temperature inside the transformer is equal to an outside ‘reference’ temperature. The concern is that the temperature inside the transformer is surely higher than an outside temperature, meaning the energy losses in practice would be higher than what is being calculated. To address this, DOE is requesting comment on the following:

  • Issue 6: Any data or information about whether calculating losses at ambient temperature or internal temperature is more representative of real transformer performance; and
  • Issue 7: Whether temperature varies with PUL.

The current test procedure specifies efficiency by a single tested PUL. DOE has engaged in some discussion on whether this is appropriate, if a different reference PUL should be used, or if transformers should be tested at multiple PULs. To this end, DOE is requesting comment on:

  • Issue 8: Any data or information on the continued use of a single PUL test requirement compared with the alternatives;
  • Issue 9: How accurate would testing at multiple PULs be to the distribution of real-use transformer operations and how much would that increase testing costs;
  • Issue 10: How many PULs would be appropriate at which to test in a scenario of testing multiple PULs; and
  • Issue 11: Whether there are alternative metrics that should be considered to determine transformer efficiency.

Lastly, DOE also seeks comment on the sampling process and calculation methods used in the test procedure. The specific types of comments DOE seeks are the following:

  • Issue 12: Whether the sampling requirements of units to be tested should be adjusted;
  • Issue 13: Whether the efficiencies advertised by manufacturers typically represent the minimum efficiency standard, the maximum represented efficiency they are allowed to use, or some other metric;
  • Issue 14: Comment on DOE’s requirements related to alternative methods for determining energy efficiency (AEDMs); and
  • Issue 15: Whether the AEDM provisions are useful and if manufacturers use them.

Again this RFI is just the beginning of the rulemaking process for the distributed transformer test procedure, but it also represents the best time to get involved if these test procedures affect you. The above issues are just the ones that DOE specifically is looking to hear about, but stakeholders are more than welcome to address any other topics they find important. As mentioned in the Policy Rulemaking Process for Dummies article, comment periods such as this one represent the best opportunities to directly impact potential regulations that could have real impacts on you or your business.

Note: I have in the works a post on how to submit the most effective public comments, so if there appears to be interest on this post regarding the net metering RFI then I’ll make sure to move up publication of that subsequent post to be helpful for commenting on this Notice in advance of the comment submission deadline. Update: See here for my post on how to make the most effective public comment on a public rulemaking.

Summary of RFI details

  • DOE published RFI asking for comments on development of the technical and economic analyses regarding whether the existing test procedures for distributed transformers should be amended (82 FR 44347).
  • Some key specific topics DOE is interested in receiving comments on include:
    • Ways to streamline and simplify testing requirements;
    • Measures DOE could take to lower the cost of testing requirements;
    • The relation between PUL being tested and PUL actually used in the field for distribution transformers;
    • Whether current temperature correction in the test procedure is flawed;
    • How testing based on a single PUL affects the final posted efficiency of equipment; and
    • The appropriateness of the sampling and calculation methods currently used.
  • Comments are to be submitted by October 23, 2017.
  • Further information is available at the Notice’s online docket, and questions can be directed to Jeremy Dommu at the DOE Office of Energy Policy and Systems Analysis or Mary Green at the DOE Office of the General Counsel.
  • As always, feel free to contact me through the Contact page or commenting below if you have any questions you think I could answer as well.

 

Updated on October 10, 2017

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Federal Register Notice: Costs and Benefits of Net Energy Metering: Request for Information

I’ve been excited to write a first post in the ‘Checking in on the Federal Register’ article series, but have been waiting for the right Notice to be posted in the Federal Register. Today is finally that day, as the Department of Energy (DOE) published a Notice of request for information (RFI) in the September 15, 2017 issue of the Federal Register (82 FR 43345). This Notice is a rather brief one, so I would encourage you to read it yourself, in addition to reading this post where I’ll summarize the important details and pre-emptively answer any questions you may have.

What is an RFI?

If you’ve already read my Policy Rulemaking Process for Dummies article, you might be confused—RFIs don’t appear anywhere in that summary of the typical rulemaking process. However, an RFI falls into the category of situations where a Notice of Proposed Rulemaking (NOPR) is not the first Federal Register notice. An RFI is issued, such as in this case, when a topic is particularly complex or contentious, and so the agency solicits public feedback earlier in the process to ensure it has all the best and most up-to-date data and information available before beginning its analysis.



In this instance, DOE indicates they are preparing a cost/benefit study on net metering as a part of the Grid Modernization Initiative. DOE is likely seeking out all possible resources and data sets from stakeholders because net metering is a very contentious issue and it is crucial to have all possible information before digging into the study.

Background of Net Metering

According to DOE, net metering, or net energy metering (NEM), is the “the practice of using a single meter to measure consumption and generation of electricity by a small generation facility (such as a house with a wind or solar photovoltaic system). The net energy produced or consumed is purchased from or sold to the power provider, respectively.” Thus, when these customers who generate their own electricity have generated more power than they are using, they are able to sell back their excess electricity to the utility who controls the transmission and distribution system to which they are connected.

The debate on net metering often pits companies and customers installing rooftop solar panels against utilities. The main crux of the debate surrounds rate design and the issue of whether customers whose excess solar power gets sold back into the larger utility grid system should be credited at the retail rate of electricity or if that unfairly results in these solar customers not paying their fair share of the grid upkeep costs.

These disputes have been commonly going to courts in states with frequent residential solar power installations. For a quick rundown of where each state stood on laws regarding net metering (as of late 2016), see this summary by the National Conference of State Legislatures. For a summary of the most contentious net metering legal battles going on in 2017, see this write up by Utility Dive. However since this is such a common and frequent debate across many different states, the best way to see the latest news is a quick Google search—the most recent development coming from just approved rules and regulations for net metering in Nevada.

What is being requested

In short, this RFI is requesting that stakeholders submit any relevant data, studies, or information they have in regards to the costs and benefits of net metering. DOE specifically requests information from the perspectives of the utilities’ business interests, the rate-paying consumers, and those tasked with addressing the technical and operational challenges of net metering.

As such, this RFI casts a rather wide net as to who prospective stakeholders would be—not only will the expected utilities and energy advocates likely submit comments, but the door is open for any private citizen or group of citizens to express their thoughts and concerns. As mentioned in the Policy Rulemaking Process for Dummies article, comment periods such as this one represent the best opportunities for you, either as a private citizen or a member of an organization, to directly impact potential regulations that could have real impacts on your life.

While there are numerous public studies available that DOE can, and certainly already has, referenced for their information gathering process, the key to this comment request is that they would like those with deep knowledge and experience with the topic to provide comment and context on those existing studies (specifically citing studies done since the beginning of 2012). DOE is hoping to hear if stakeholders find there to be any flaws in commonly cited studies on the topic, information that is not discussed in those studies, or data/information that stakeholders may have internally that have not yet been made public. In essence, this RFI from DOE is indicating they are studying the costs and benefits of net metering, and if you have any information you think is important to be included in that study then now is the time to raise your hand. The analysis generated from the information in this RFI will ultimately be presented to Congress.

Note: I have in the works a post on how to submit the most effective public comments, so if there appears to be interest on this post regarding the net metering RFI then I’ll make sure to move up publication of that subsequent post to be helpful for commenting on this Notice in advance of the comment submission deadline.

UPDATE: See this blog post for advice on making an effective public comment

Summary of RFI details

  • DOE published RFI asking for comments on the costs and benefits of net energy metering (82 FR 43345).
  • Specific topics DOE is interested in receiving comments on include:
    • Motivations and policy context of cost-benefit analyses of net metering;
    • Types of costs and benefits that should be considered for net metering;
    • Methodology issues typically encountered in net metering studies;
    • Context for what drives differing costs or benefits in different net metering studies; and
    • Any emerging issues that should be considered in future net metering studies that may not have been relevant to studies in the past.
  • Comments are to be submitted by October 30, 2017.
  • Further information is available at the Notice’s online docket, and questions can be directed to Kate Marks at the DOE Office of Energy Policy and Systems Analysis.
  • Feel free to contact me, through the Contact page or commenting below, if you have any questions you think I could answer as well.

 

 

 

Updated on October 10, 2017

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.