[Federal Register Volume 78, Number 159 (Friday, August 16, 2013)]
[Proposed Rules]
[Pages 49975-49978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19950]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No. EERE-BT-PET-0043]


Energy Conservation Program for Consumer Products: Landmark Legal 
Foundation; Petition for Reconsideration

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

ACTION: Petition for Reconsideration; Request for Comments.

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SUMMARY: The Department of Energy (DOE) received a petition from the 
Landmark Legal Foundation (LLF), requesting that DOE reconsider its 
final rule of Energy Conservation Standards for Standby Mode and Off 
Mode for Microwave Ovens, Docket No. EERE-2011-BT-STD-0048, RIN 1904-
AC07, 78 FR 36316 (June 17, 2013) (``Microwave Final Rule'' or ``the 
Rule''). Specifically, LLF requests that DOE reconsider the Rule 
because the final rule used a different Social Cost of Carbon (SCC) 
than the figure used in the supplemental notice of proposed rulemaking 
(SNOPR). DOE seeks comment on whether to undertake the reconsideration 
suggested in the petition.

DATES: Any comments must be received by DOE not later than September 
16, 2013.

ADDRESSES: Comments must be submitted, identified by docket number 
EERE-BT-PET-0043, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected]. Include either the 
docket number EERE-BT-PET-0043, and/or ``LLF Petition'' in the subject 
line of the message.
    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building 
Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585-0121. Please submit one signed 
original paper copy.
    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Program, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585-0121.
    5. Instructions: All submissions received must include the agency 
name and docket number for this proceeding.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at 
www.regulations.gov. In addition, electronic copies of the Petition are 
available online at DOE's Web site at the following URL address: http://www.regulations.gov/#!docketDetail;D=EERE-2013-BT-PET-0043.

FOR FURTHER INFORMATION CONTACT: Ashley Armstrong, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121, (202) 586-6590, or email: [email protected]. 
Ari Altman, U.S. Department of Energy, Office of General Counsel, GC-
71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-4224, 
email: [email protected].

SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., provides among other things that, ``[e]ach agency 
shall give an interested person the right to petition for the issuance, 
amendment, or repeal of a rule.'' 5 U.S.C. 553(e). DOE received a 
petition from the Landmark Legal Foundation (LLF) on July 2, 2013, 
requesting that DOE reconsider its final rule of Energy Conservation 
Standards for Standby Mode and Off Mode for Microwave Ovens, Docket No. 
EERE 2011 BT STD 0048, RIN 1904 AC07, 78 FR 36316 (June 17, 2013) 
(``Microwave Final Rule'' or ``the Rule'').
    The Rule was adopted by DOE in accordance with the Energy Policy 
and Conservation Act of 1975 (EPCA). (78 FR 36316) EPCA, as amended, 
prescribes energy conservation standards for various consumer products 
and certain commercial and industrial equipment. On June 17, 2013, DOE 
published a final rule adopting standby mode and off mode standards, 
which it determined would result in significant conservation of energy 
and were technologically feasible and economically justified.
    In developing the Rule, DOE issued a Supplemental Notice of 
Proposed Rulemaking (SNOPR) on February 14, 2012. (77 FR 8555) In this 
SNOPR, as part of its economic analysis of the proposed rule, DOE 
sought to monetize the cost savings associated with the reduced carbon 
missions that would result from the expected energy savings of the 
proposed rule. To do this, DOE used ``the most recent values [of SCC] 
identified by the interagency process,'' which, at the time, was the 
SCC calculation developed by the ``Interagency Working Group on Social 
Cost of Carbon 2010.'' Id. This 2010 figure was developed through an 
interagency process in accordance with Executive Order 12866.
    In May 2013, subsequent to the SNOPR but prior to DOE's issuance of 
the Rule, the Interagency Working Group on Social Cost of Carbon 
released revised SCC values. (Technical Update of the Social Cost of 
Carbon for Regulatory Impact Analysis Under Executive Order 12866, 
Interagency Working Group on Social Cost of Carbon, United States 
Government, 2013) As these were ``the most recent (2013) SCC values 
from the interagency group,'' DOE included these revised SCC values in 
the Rule. (78 FR 36316)
    Landmark petitions DOE to reconsider the Rule on the grounds that 
this change in the values used in estimating the economic benefits of 
the Rule should have been subject to a prior opportunity for public 
comment because the 2013 SCC values were not the ``logical outgrowth'' 
of the 2010 SCC values. Further, Landmark asserts that without 
reconsideration of the Rule, DOE might now rely on its prior use of the 
2013 SCC values in the Rule when it endeavors to enact new energy 
conservation standards in the future.
    In promulgating this petition for public comment, DOE seeks public 
comment on whether to undertake the reconsideration suggested in the 
petition. DOE takes no position at this time on the merits of the 
suggested reconsideration.

    Issued in Washington, DC, on August 12, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    Set forth below is the full text of the Landmark Legal Foundation.

[[Page 49976]]

BEFORE THE UNITED STATES DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Parts 429 and 430
Docket No. EERE-2011-BT-STD-0048
RIN 1904-AC07

In the Matter of Energy Conservation Program: Energy Conservation 
Standards For Standby Mode and Off Mode for Microwave Ovens

Petition for Reconsideration

    Landmark Legal Foundation (``Landmark'') respectfully petitions the 
Department of Energy (``DOE'' or ``Department'') for reconsideration of 
its final rule on Energy Conservation Standards for Standby Mode and 
Off Mode for Microwave Ovens, Docket No. EERE-2011-BT-STD-0048, RIN 
1904-AC07, 78 FR 36316 (June 17, 2013) (``Microwave Final Rule'' or 
``Rule'').
    President Barrack Obama has directed the issuance of sweeping new 
environmental regulations on carbon emissions from multiple sources. 
See Raf Sanchez, ``Barrack Obama to cut emissions in vow to save 
planet,'' The Telegraph, June 26, 2013, (http://www.telegraph.co.uk/news/worldnews/n01thamerica/usa/l0142279/Barack-Obama-to-cut-emissions-in-vow-to-save-planet.html). These new regulations will be applied to 
sources ranging from small appliances to both new and existing power 
plants. See Justin Sink, ``Obama mocks skeptics of climate change as 
`flat-Earth society,' '' The Hill, June 25, 2013, (http://thehill.com/blogslblog-briefing-room/news/307655-obama-we-dont-have-time-for-a-meeting-of-the-flat-earth-society#ixzz2XFsQ5mgH).
    Each of the new and massive regulatory proposals directed at carbon 
emission sources will require implementing agencies to conduct ``cost-
benefit'' analysis upon which the public should be able to make 
comment. DOE's unannounced, dramatically increased, and improperly 
altered ``Social Cost of Carbon'' (``SCC'') valuation presented for the 
first time in this microwave oven regulation will certainly become the 
standard by which all other agencies will place a purportedly 
beneficial economic value on new carbon regulations.
    Landmark objects to the Department's (and unnamed other agencies) 
decision to utilize an ``Interagency Update'' to justify increasing the 
``social cost'' of carbon dioxide without any opportunity for public 
comment. Finalizing such a far reaching decision without notice and 
public comment violates the Administrative Procedure Act's (APA) and 
Executive Order 13563's tenets of transparency, objectivity and 
fairness in promulgating and finalizing regulations.
    Landmark submits this document as a Petition for Reconsideration. 
However, the egregious violations of the APA as documented in this 
Petition demand rescission of the Rule. Landmark respectfully requests 
the DOE halt implementation and begin the regulatory process anew. At a 
minimum, the DOE's action must be reconsidered and presented to the 
public for proper consideration and comment. Without public input on 
DOE's SCC calculation, the agency will utterly fail to adhere to its 
obligations for transparency under the APA and its duty to comply with 
the Obama Administration's declared commitment to meaningful public 
participation. DOE should immediately suspend implementation of this 
regulation, place it on the public docket and permit comments on the 
Department's decision to utilize a new and previously unknown 
``interagency update'' for calculating the values used to quantify the 
``Social Cost of Carbon'' or ``SCC.''

Background

    On June 17, 2013, pursuant to the Energy Policy and Conservation 
Act and the Energy Independence and Security Act, (``EPCA'' and ``EISA 
2007,'' respectively) DOE promulgated a final rule establishing 
``energy conservation standards'' for microwave ovens. 78 FR 36316.
    The final rule uses a new valuation for SCC that is different 
from--and dramatically higher than--that used in the proposed rule 
during the notice and comment period. See, 77 FR 8555 (Energy 
Conservation Standards for Standby Mode and Off Mode for Microwave 
Ovens, Supplemental Notice of Proposed Rulemaking and public meeting, 
Feb. 14, 2012). This new valuation appears in Table IV-14 of the new 
rule and, apparently, is derived from the ``2013 Interagency Update, 
2010-2050.'' 78 FR 36351. The new value is important because it serves 
as a key data factor in all cost-benefit analyses performed involving 
carbon dioxide. Despite its curious and surreptitious integration into 
a rule pertaining to microwave ovens, this new estimate appears to 
apply to all federal agencies engaging in cost-benefit analyses 
involving carbon dioxide emissions. DOE states, ``the purpose of the 
SCC estimates presented here is to allow agencies to incorporate the 
monetized social benefits of reducing C02 emissions into cost benefit 
analyses of regulatory actions. . . .'' 78 FR at 36349 (emphasis 
added).
    While the final rule utilizes an ``interagency update'' for 
establishing SCC values, the proposed rule does not contain these 
updated figures. See 78 FR 36351 and 77 FR 8555, respectively. Instead, 
the proposed rule provides SCC values derived ``from three integrated 
assessment models.'' 77 FR 8555. There is significant deviation in SCC 
estimates from the models used in the proposed rule to the models used 
in the final rule. For example, in the proposed rule, the Social Cost 
of Carbon, under one discount rate is estimated to be $23.80 dollars 
per metric ton by 2015. 77 FR 8555. That number rises to $38 dollars 
per metric ton under the new estimates provided in the final rule. 78 
FR 36351.
    It appears these new figures were inserted into the existing rule 
without any opportunity for public comment on their efficacy. Such new 
values will dramatically affect cost-benefit analyses. Any federal rule 
limiting carbon dioxide emissions will now appear considerably more 
valuable than under previous analyses.
    DOE acknowledges that any effort to ``quantify and monetize the 
harms associated with climate change'' raises ``serious questions of 
science, economics, and ethics . . .'' 78 FR at 36349. It also reports 
that it arrived at these estimates ``as part of [an] interagency 
process ``where numerous agencies met on a regular basis . . .'' Id. 
However, there is no indication that DOE, or any other governmental 
entity, sought specific comments from the public on its new estimates. 
DOE states that preliminary assessments that established ``interim 
values'' for the SCC were subject to the traditional notice and comment 
procedures, ``the results of this preliminary effort were presented in 
several proposed and final rules.'' Id. Yet, DOE has not made these new 
estimates available for public comment. Instead, DOE, along with a 
number of other federal agencies, arrived at these new figures through 
some sort of ``interagency process'' and published them in a final 
regulation on microwave oven power modes.

Argument

A. DOE Violated the Administrative Procedure Act by Failing To Allow 
the Public the Opportunity To Comment on its New Values on the Social 
Costs of Carbon

    The DOE's effort to cloak its actions by dubiously inserting a 
crucial cost-benefit metric into a rule pertaining to microwave oven 
standards does not withstand scrutiny under the APA. It appears that 
DOE inserted its new SCC estimates into the regulation without

[[Page 49977]]

first publishing these estimates in a format allowing for public 
comment. Unilaterally establishing a wide ranging metric that will be 
used in all cost-benefit analyses for regulation of greenhouse gases 
violates the fundamental principles of the APA and would not survive 
judicial scrutiny.
    The APA mandates that an agency ``shall give interested persons an 
opportunity to participate in the rulemaking through submission of 
written data, views, or arguments with or without opportunity for oral 
presentation.'' 5 U.S.C. 553(c). The purpose of a robust comment period 
``is to allow interested members of the public to communicate 
information, concerns, and criticisms to an agency during rulemaking 
process.'' Connecticut Light & Power Co. v. Nuclear Regulatory Com., 
673 F.2d 525, 530 (D.C. Cir. 1982). Such a period allows ``the agency 
to benefit from the experience and input of the parties who file 
comments . . . and to see to it that the agency maintains a flexible 
and open-minded attitude towards its own rules.'' National Tour Brokers 
Ass'n v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978).
    Therefore, the notice and comment period ``encourages public 
participation in the administrative process and educates the agency, 
thereby helping to ensure informed agency decisionmaking.'' Chocolate 
Manufacturers Assoc. v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985), 
(citing Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321 (4th Cir. 
1980)); BASF Wyandotte Corp. v. Castle, 598 F.2d 637, 642 (1st Cir. 
1979)). Providing adequate notice of a significant change in a proposed 
rule gives ``the public the opportunity to participate in the rule-
making process. It also enables the agency promulgating the rule to 
educate itself before establishing rules and procedures which have a 
substantial impact on those regulated.'' Texaco, Inc. v. Federal Power 
Commission, 412 F.2d 740, 744 (3'd Cir. 1969). When an agency fails to 
properly adhere to the APA's notice and comment procedures ``interested 
parties will not be able to comment meaningfully on the agency's 
proposals.''
    Connecticut Light & Power, 673 F.2d at 530. Moreover, ``the agency 
may operate with a one-sided or mistaken picture of the issues at stake 
in a rule-making.'' Id. Finally, where, as here, an agency has made a 
fundamental change in a critical component of its analysis, the agency 
has a duty to inform the public.

    ``[H]iding or disguising the information that it employs is to 
condone a practice in which the agency treats what should be genuine 
interchange as mere bureaucratic sport. An agency commits serious 
procedural error when it fails to reveal portions of the technical 
basis for a proposed rule in time to allow meaningful commentary.''

Connecticut Light & Power, 673 F.2d at 530-531.

    Thus, a proper notice and comment period improves the ``quality of 
agency rulemaking by testing proposed rules through exposure to public 
comments. Second, the notice requirements provide an opportunity to be 
heard, which is basic to fundamental fairness. Third, notice and 
comment allows affected parties to develop a record of objections for 
judicial review.'' United Church Bd. For World Ministries v. SEC, 617 
F.Supp. 837, 839 (D.C. Dist. 1985), citing Small Refined Lead Phase-
Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).
    Finally, an agency ``is required to renotice [its proposed rule] 
when the changes [to that rule] are so major that the original notice 
did not adequately frame the subjects for discussion.'' Connecticut 
Light & Power, 673 F.2d at 533. If the agency's changes are a logical 
outgrowth of the proposed rule, ``the agency need not renotice [such] 
changes.'' Id. See also, Weyerhaeuser Co. v. Castle, 590 F.2d 1011, 
1031 (D.C. Cir. 1978).
    DOE eschewed all of these principles when it made a significant 
change to its rule.

B. DOE's Unilateral Decision Is Not a Logical Outgrowth From the 
Proposed Rule and Will Have Wide Ranging Implications

    By inserting a new estimate for SCC values, DOE denied interested 
parties the opportunity to comment on DOE's motivations, methodologies 
and conclusions in reaching said values. The public has also been 
denied the opportunity to question the calculations utilized by the 
``Interagency Working Group on Social Costs of Carbon.'' Instead, these 
new values were unilaterally placed into a final regulation with no 
notice or opportunity to comment. These new values are not a logical 
outgrowth from the proposed rule. In fact, DOE notes in both the 
proposed and final rules, ``that a number of key uncertainties remain, 
and that current SCC estimates should be treated as provisional and 
revisable. . . .'' 77 Fed Reg. 8555, 78 FR 36351. DOE acknowledges that 
``key uncertainties remain,'' yet disregards its obligation to receive 
potentially instructive information by providing a forum for public 
comment.
    Additionally, these changes are significant and wide reaching. DOE 
concedes that other agencies will utilize these new values when 
calculating the costs and benefits of rules relating to greenhouse 
gasses. It states, ``the purpose of the SCC estimates presented here is 
to allow agencies to incorporate the monetized social benefits of 
reducing CO2 emissions . . .'' 78 FR 36349. With this unilateral 
change, agency cost benefit analyses will be drastically affected. 
Going forward, any federal rule limiting carbon dioxide emissions will 
appear considerably more valuable than under previous analyses. Such a 
change could ``have wide-ranging implications for everything from power 
plants to the Keystone XL pipeline.'' Mark Brajem, ``Obama Quietly 
Raises `Carbon Price' as Costs to Climate Increase.'' Bloomberg.com, 
June 12, 2013 (Attached as Exhibit A.) In choosing to bypass the 
mandated notice and comment procedures for this significant change, DOE 
has violated the APA. The Department can rectify this violation by 
halting the regulation's implementation and allowing for public 
comment.

C. DOE Disregarded Executive Order 13563 When It Failed To Provide for 
Notice and Comment on the New Data

    On January 18, 2011, President Obama issued an executive order 
requiring that agency rulemaking ``shall be adopted through a process 
that involves public participation.'' Executive Order 13563, Improving 
Regulation and Regulatory Review. In particular, the President's 
executive order provided:

    To promote that open exchange, each agency, consistent with 
Executive Order 12866 and other applicable legal requirements, shall 
endeavor to provide the public with an opportunity to participate in 
the regulatory process. To the extent feasible and permitted by law, 
each agency shall afford the public a meaningful opportunity to 
comment through the Internet on any proposed regulation, with a 
comment period that should generally be at least 60 days. To the 
extent feasible and permitted by law, each agency shall also 
provide, for both proposed and final rules, timely online access to 
the rulemaking docket on regulations.gov, including relevant 
scientific and technical findings, in an open format that can be 
easily searched and downloaded. For proposed rules, such access 
shall include, to the extent feasible and permitted by law, an 
opportunity for public comment on all pertinent parts of the 
rulemaking docket, including relevant scientific and technical 
findings. Id.


[[Page 49978]]


    For reasons set forth above, the DOE's actions also violate the 
principles outlined in President Obama's order.

Conclusion

    Landmark respectfully requests DOE immediately halt implementation 
and rescind the Rule. In the alternative, Landmark requests DOE adhere 
to the mandates of the APA, and subject the changes documented in this 
Petition to a proper notice and comment.

Respectfully Submitted,

Mark R. Levin, President
Landmark Legal Foundation, 19415 Deerfield Ave., Suite 312, 
Leesburg, VA 20176.

JULY 2, 2013

[FR Doc. 2013-19950 Filed 8-15-13; 8:45 am]
BILLING CODE 6450-01-P