Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 79643 

a significant adverse effect on the 

supply, distribution, or use of energy; or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use if the 

proposal is implemented, and of 

reasonable alternatives to the proposed 

action and their expected benefits on 

energy supply, distribution, and use. 

DOE has concluded that today’s 

regulatory action proposing to 

determine that hearth products meet the 

criteria for a covered product for which 

the Secretary may prescribe an energy 

conservation standard pursuant to 42 

U.S.C. 6295(o) and (p) would not have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action is also not a significant 

regulatory action for purposes of 

Executive Order 12866, and the OIRA 

Administrator has not designated this 

proposed determination as a significant 

energy action under Executive Order 

12866 or any successor order. Therefore, 

this proposed determination is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects for this proposed 

determination. 

L. Review Under the Information 

Quality Bulletin for Peer Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy (OSTP), issued 

its Final Information Quality Bulletin 

for Peer Review (the Bulletin). 70 FR 

2664 (Jan. 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

Bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. DOE has 

determined that the analyses conducted 

for this rulemaking do not constitute 

‘‘influential scientific information,’’ 

which the Bulletin defines as ‘‘scientific 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions.’’ 70 FR 2667 (Jan. 14, 2005). 

The analyses were subject to predissemination review prior to issuance 

of this rulemaking. 

DOE will determine the appropriate 

level of review that would be applicable 

to any future rulemaking to establish 

energy conservation standards for 

hearth products. 

VI. Public Participation 

A. Submission of Comments 

DOE will accept comments, data, and 

information regarding this notice of 

proposed determination no later than 

the date provided at the beginning of 

this notice. After the close of the 

comment period, DOE will review the 

comments received and determine 

whether hearth products are a covered 

product under EPCA. 

Comments, data, and information 

submitted to DOE’s email address for 

this proposed determination should be 

provided in WordPerfect, Microsoft 

Word, PDF, or text (ASCII) file format. 

Submissions should avoid the use of 

special characters or any form of 

encryption, and wherever possible 

comments should include the electronic 

signature of the author. No 

telefacsimiles (faxes) will be accepted. 

Pursuant to 10 CFR 1004.11, any 

person submitting information that he 

or she believes to be confidential and 

exempt by law from public disclosure 

should submit two copies: One copy of 

the document marked ‘‘confidential’’ 

including all the information believed to 

be confidential, and one copy of the 

document marked ‘‘non-confidential’’ 

with all the information believed to be 

confidential deleted. DOE will make its 

own determination as to the 

confidential status of the information 

and treat it according to its 

determination. 

Factors of interest to DOE when 

evaluating requests to treat submitted 

information as confidential include: (1) 

A description of the items; (2) whether 

and why such items are customarily 

treated as confidential within the 

industry; (3) whether the information is 

generally known or available from 

public sources; (4) whether the 

information has previously been made 

available to others without obligations 

concerning its confidentiality; (5) an 

explanation of the competitive injury to 

the submitting persons which would 

result from public disclosure; (6) a date 

after which such information might no 

longer be considered confidential; and 

(7) why disclosure of the information 

would be contrary to the public interest. 

B. Issues on Which DOE Seeks 

Comments 

DOE welcomes comments on all 

aspects of this proposed determination. 

DOE is particularly interested in 

receiving comments from interested 

parties on the following issues related to 

the proposed determination for hearth 

products: 

• Definition(s) of ‘‘hearth product’’; 

• Whether classifying hearth products 

as a covered product is necessary or 

appropriate to carry out the purposes of 

EPCA; 

• Calculations and values for average 

household energy consumption of 

hearth products; and 

• Availability or lack of availability of 

technologies for improving the energy 

efficiency of hearth products. 

The Department is interested in 

receiving views concerning other 

relevant issues that participants believe 

may affect DOE’s ability to establish test 

procedures and energy conservation 

standards for hearth products. The 

Department invites all interested parties 

to submit in writing by January 30, 

2014, comments and information on 

matters addressed in this notice and on 

other matters relevant to consideration 

of a determination for hearth products. 

After the expiration of the period for 

submitting written statements, the 

Department will consider all comments 

and additional information that is 

obtained from interested parties or 

through further analyses, and it will 

prepare a final determination. If DOE 

determines that hearth products qualify 

as a covered product, DOE will consider 

a test procedure and energy 

conservation standards for hearth 

products. Members of the public will be 

given an opportunity to submit written 

and oral comments on any proposed test 

procedure and standards. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, Small 

businesses. 

Issued in Washington, DC, on December 

24, 2013. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficency, Energy Efficiency and Renewable 

Energy. 

[FR Doc. 2013–31261 Filed 12–30–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2013–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. 


emcdonald on DSK67QTVN1PROD with PROPOSALS
79644 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

1Available at: http://www.whitehouse.gov/sites/

default/files/omb/inforeg/for-agencies/Social-Costof-Carbon-for-RIA.pdf. 

ACTION: Petition for reconsideration; 

Notice of denial. 

SUMMARY: This document announces the 

Department of Energy’s (DOE) denial of 

a petition from the Landmark Legal 

Foundation (LLF) requesting 

reconsideration of DOE’s final rule of 

energy conservation standards for 

standby mode and off mode for 

microwave ovens. DOE published the 

LLF petition and a request for comments 

in the Federal Register on August 16, 

2013. Based upon its evaluation of the 

petition and careful consideration of the 

public comments, DOE has decided to 

deny this petition for rulemaking. 

DATES: This denial was issued on 

December 24, 2013. 

ADDRESSES: Docket: For access to the 

docket to read the petition or comments 

received thereon, go to the Federal 

eRulemaking Portal at http://

www.regulations.gov/

#!docketDetail;D=EERE-2013-BT-PET0043. In addition, electronic copies of 

the Petition are available online at 

DOE’s Web site at http://

www.regulations.gov/

#!docketDetail;D=EERE-2013-BT-PET0043. For access to the docket for DOE’s 

energy conservation standards for 

microwave ovens, go to the Federal 

eRulemaking Portal at https://

www1.eere.energy.gov/buildings/

appliance_standards/product.aspx/

productid/48. 

FOR FURTHER INFORMATION CONTACT: John 

Cymbalsky, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 287–1692. Email: 

John.Cymbalsky@ee.doe.gov. 

Ami Grace-Tardy, U.S. Department of 

Energy, Office of the General Counsel, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–5709. Email: 

Ami.Grace-Tardy@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. The SCC Analysis Did Not Change the 

Final Standard as Proposed or Adopted 

III. The Final Rule Was the Logical 

Outgrowth of the Proposed Rule 

IV. Comments on Sufficiency of the Science 

and Precedential Effects 

V. Conclusion 

I. Background 

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) (‘‘final rule’’). 

The final rule was adopted by DOE in 

accordance with the Energy Policy and 

Conservation Act of 1975 (EPCA; 42 

U.S.C. 6291 et seq.). See 78 FR 36316. 

Under EPCA, any new or amended 

energy conservation standard shall 

achieve the maximum improvement in 

energy efficiency that the Secretary 

determines is technologically feasible 

and economically justified. (42 U.S.C. 

6295(o)(3)(A)–(B)) In deciding whether 

an amended standard is economically 

justified, DOE must determine whether 

the benefits of the standard exceed its 

burdens. (42 U.S.C. 6295(o)(2)(B)(i)) 

DOE must make this determination by 

considering, to the greatest extent 

practicable, seven factors set out in 

EPCA. Id. On June 17, 2013, DOE 

published a final rule adopting standby 

mode and off mode standards that DOE 

determined would result in significant 

conservation of energy and that were 

technologically feasible and 

economically justified. See 78 FR 36316. 

The final rule was the result of a 

rulemaking that began in 2008 and 

resulted in a decision by DOE to analyze 

potential energy conservation standards 

for the active mode of microwave ovens 

separate from the standby and off modes 

of microwave ovens. See 73 FR 62034 

(October 17, 2008). In April 2009, DOE 

concluded that it should defer a 

decision regarding amended energy 

conservation standards that would 

address standby and off modes for 

microwave ovens pending further 

rulemaking and finalized a ‘‘no 

standard’’ standard for microwave oven 

active mode energy use. 74 FR 16040 

(April 8, 2009). 

DOE issued a Supplemental Notice of 

Proposed Rulemaking (SNOPR) on 

February 14, 2012, that proposed energy 

conservation standards for microwave 

oven stand by and off modes. 77 FR 

8526. In the SNOPR, as part of its 

economic analysis of the proposed rule, 

DOE sought to monetize the cost savings 

associated with the reduced carbon 

dioxide (CO2) emissions that would 

result from the expected energy savings 

of the proposed rule. To do this, DOE 

used the most recent values of the 

Social Cost of Carbon (SCC) available, 

which, at the time, was the SCC 

calculation developed by the 

‘‘Interagency Working Group on Social 

Cost of Carbon 2010.’’1 77 FR 8555. 

Monetizing the cost savings 

associated with the reduced carbon 

emissions has been routine practice in 

DOE energy conservation standards 

rulemakings. The purpose of the SCC 

estimates presented in the microwave 

oven rule, and other DOE energy 

conservation standards rulemakings, 

was to allow DOE to assess the 

monetized social benefits of reducing 

CO2 emissions as part of the analysis of 

these regulatory actions that have small, 

or ‘‘marginal,’’ impacts on cumulative 

global emissions. In the rulemaking athand and many other past rulemakings, 

DOE has utilized SCC values to 

calculate whether the economic effect of 

reduced CO2 emissions impacts the 

Department’s regulatory decision. As 

evidenced by Table I–3 in the final rule, 

DOE calculates a standard’s SCC values 

and incorporates those calculations in 

the analysis for the rulemaking to see 

whether, and if so how, the weighing of 

benefits and costs is impacted when the 

SCC values are also applied to the 

standard. See 78 FR 36318–19. The SCC 

values may or may not affect DOE’s 

decision on a final standard. 

DOE includes an analysis with SCC 

values because under section 1(b)(6) of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(October 4, 1993), agencies must, to the 

extent permitted by law, assess both the 

costs and the benefits of the intended 

regulation and, recognizing that some 

costs and benefits are difficult to 

quantify, propose or adopt a regulation 

only upon a reasoned determination 

that the benefits of the intended 

regulation justify its costs. The 

Interagency Working Group on Social 

Cost of Carbon (‘‘Interagency Working 

Group’’ or ‘‘IWG’’) was formed to allow 

agencies to incorporate the monetized 

social benefits of reducing CO2

emissions into cost-benefit analyses of 

regulatory actions that have small, or 

‘‘marginal,’’ impacts on cumulative 

global emissions (such as the rule athand). DOE has incorporated SCC 

values into its rulemakings since the 

first microwave oven notice of proposed 

rulemaking (NOPR) in 2008. 

As described in the SNOPR, the 2010 

SCC values were developed through an 

interagency process in accordance with 

Executive Order 12866. In the 2012 

SNOPR, DOE stated that the IWG 

planned to update the 2010 SCC as 

DOE’s understanding of climate change 

and its impacts on society improves 


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2Available at: http://www.whitehouse.gov/sites/

default/files/omb/inforeg/social_cost_of_carbon_

for_ria_2013_update.pdf. 

3See http://www.whitehouse.gov/blog/2013/11/

01/refining-estimates-social-cost-carbon. 4See Appendix B, available at: http://

www.whitehouse.gov/sites/default/files/omb/assets/

inforeg/technical-update-social-cost-of-carbon-forregulator-impact-analysis.pdf. 

over time, specifically noting that the 

interagency group had set a preliminary 

goal of revisiting the SCC values within 

two years or at such time as 

substantially updated models become 

available. 77 FR 8553–54. 

In May 2013, subsequent to the 

SNOPR but prior to DOE’s issuance of 

the final rule, the IWG 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, 20132) As these were ‘‘the 

most recent (2013) SCC values from the 

interagency group,’’ DOE included both 

these revised SCC values and the 2010 

SCC values in the final rule. 78 FR 

36318. 

On November 1, 2013, the Office of 

Information and Regulatory Affairs at 

the Office of Management and Budget 

(OMB) announced minor technical 

corrections to the 2013 SCC values, 

which result in a central estimated 

value of the Social Cost of Carbon in 

2015 of $37 per metric ton of CO2, 

instead of the $38 per metric ton of CO2

estimate released in May 2013.3 This 

change is based on two corrections 

made to the runs based on the FUND 

model.4 OMB also announced a new 

opportunity for public comment on the 

revised TSD underlying the SCC 

estimates in addition to the public 

comment opportunities already 

available through particular 

rulemakings. In a November 26, 2013 

notice, OMB described the changes 

detailed above and announced a 60-day 

public comment period on all aspects of 

the revised TSD. 78 FR 70586. 

DOE adjusted Table 1–3 as displayed 

in the final rule to account for these 

minor technical corrections to the 2013 

SCC values. As evidenced by the 

information displayed Table 1 below, 

the corrections to the 2013 SCC values, 

when evaluated as part of the analysis, 

did not significantly alter the net 

benefits of the final rule. 

TABLE 1—SUMMARY OF NATIONAL ECONOMIC BENEFITS AND COSTS OF MICROWAVE OVEN STANDBY POWER ENERGY

CONSERVATION STANDARDS

Category Present value 

(Million 2011$) 

Discount rate 

(percent) 

Benefits: 

Operating Cost Savings ........................................................................................................................................... 2,306 7 

4,717 3 

Using November 2013 Social Cost of Carbon Values 

CO2 Reduction Monetized Value ($12.6/t case)* .................................................................................................... 254 5 

CO2 Reduction Monetized Value ($40.0/t case)* .................................................................................................... 1,166 3 

CO2 Reduction Monetized Value ($62.2/t case)* .................................................................................................... 1,853 2.5 

CO2 Reduction Monetized Value ($118/t case)* ..................................................................................................... 3,599 3 

NOX Reduction Monetized Value (at $2,567/ton)* .................................................................................................. 21.8 

44.5 

7 

3 

Total Benefits † .................................................................................................................................................. 3,493 

5,927 

7 

3 

Using May 2013 Social Cost of Carbon Values 

CO2 Reduction Monetized Value ($12.6/t case)* .................................................................................................... 255 5 

CO2 Reduction Monetized Value ($41.1/t case)* .................................................................................................... 1,179 3 

CO2 Reduction Monetized Value ($63.2/t case)* .................................................................................................... 1,876 2.5 

CO2 Reduction Monetized Value ($119/t case)* ..................................................................................................... 3,615 3 

NOX Reduction Monetized Value (at $2,567/ton)* .................................................................................................. 21.8 

44.5 

7 

3 

Total Benefits † .................................................................................................................................................. 3,507 

5,941 

7 

3 

Costs: 

Incremental Installed Costs ..................................................................................................................................... 776 

1,341 

7 

3 

Net Benefits (using Revised May 2013 SCC values): 

Including CO2 and NOX Reduction Monetized Value ............................................................................................. 2,717 

4,586 

7 

3 

Net Benefits (using November 2013 SCC values): 

Including CO2 and NOX Reduction Monetized Value ............................................................................................. 2,731 

4,600 

7 

3 

* The CO2 values represent global values of the social cost of CO2 emissions (in 2011$) in 2016 under several scenarios. The first three values are averages of SCC distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The fourth value represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. The value for NOX is the mid-range value used in DOE’s analysis. †Total Benefits for both the 3% and 7% cases are derived using the series corresponding to SCC value of $40.0/t or $41.1/t in 2015 (derived 

from the 3% discount rate value for SCC). 


emcdonald on DSK67QTVN1PROD with PROPOSALS
79646 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

5LLF’s petition and associated comments can be 

found under Docket No. EERE–BT–PET–0043 found 

at: http://www.regulations.gov/#!docketDetail;D=

EERE-2013-BT-PET-0043. 

6Notations of this form appear throughout this 

document and identify statements made in written 

comments that DOE has received and has included 

in the docket for this petition. For example, 

‘‘AHAM, No. 33’’ refers to a comment from AHAM 

in document 33 in the docket of this rulemaking 

(available at: http://www.regulations.gov/

#!docketDetail;D=EERE-2013-BT-PET-0043). 

Before the revisions to the 2013 SCC 

values were announced in November 

2013, on July 2, 2013, LLF petitioned 

DOE to reconsider the final rule on the 

grounds that the SCC values were a 

critical part of the cost-benefit analysis 

in this rulemaking and that the SCC 

values changed from the SNOPR phase 

to the final rule phase of the rulemaking 

without an opportunity for public 

comment on those changed values.5 See 

78 FR 49976–78. LLF’s primary 

contention is that DOE’s used the 2013 

SCC values in the final rule (as opposed 

to the 2010 SCC values used in the 

SNOPR) without sufficient notice and 

an opportunity for public comment in 

violation of the APA and Executive 

Order 13563 (76 FR 3281 (January 21, 

2011)). LLF stated that the SCC value 

change is a fundamental change in a 

critical component of DOE’s analysis, 

which the Department was required to 

publish and provide an opportunity for 

public comment on prior to use in the 

final rule. See 78 FR 49977. Because the 

change in SCC values could affect how 

other agencies use the SCC when 

calculating the costs and benefits of 

other rules relating to greenhouse 

gasses, LLF contends that the change in 

SCC values is ‘‘significant and wide 

reaching.’’ See id. LLF requested that 

DOE immediately rescind the final rule 

and halt implementation of the rule or, 

in the alternative, publish the changes 

described in the petition and provide an 

opportunity for public comment. 78 FR 

49978. 

As noted above, DOE published a 

document in the Federal Register on 

August 16, 2013, containing the petition 

and requesting public comment. 78 FR 

49975. DOE received comments from 

non-governmental organizations, 

manufacturers, and utilities. DOE 

received comments from the Laclede 

Gas Company (Laclede), Heritage 

Foundation (Heritage), Tri-State 

Generation and Transmission 

Association, Inc. (Tri-State), 

Southeastern Legal Foundation, Inc. 

(Southeastern), Florida Municipal 

Electric Association (FMEA), 

Gainesville Regional Utilities (GRU), 

Science and Environmental Policy 

Project (SEPP), Competitive Enterprise 

Institute (CEI), Association of Home 

Appliance Manufacturers (AHAM), 

Environmental Defense Fund (EDF), 

joint comments from the American 

Chemistry Council, American Petroleum 

Institute, National Association of Home 

Builders, Portland Cement Association, 

American Forest & Paper Association, 

Council of Industrial Boiler Owners, 

and National Mining Association 

(collectively, ACC), National Federation 

of Independent Businesses (NFIB), the 

American Petroleum Institute (API), 

American Fuel and Petrochemicals 

Manufacturers (AFPM), American 

Public Gas Association (APGA), Utility 

Air Regulatory Group (UARG), George 

Washington University Regulatory 

Studies Center (GWU–RSC), Right 

Climate Stuff Research Team (TRCS), 

Institute for Energy Research (IER), 

AFFORD Coalition (AFFORD), 

Industrial Energy Consumers of America 

(IECA), American Gas Association 

(AGA), Cato Institute Center for Study of 

Science (Cato), Consumers Energy (CE), 

American for Tax Reform (ATR), George 

Mason University Mercatus Center 

(George Mason), U.S. Chamber of 

Commerce (Chamber), National 

Association of Manufacturers (NAM), 

joint comments from Appliance 

Standards Awareness Project, 

Earthjustice, Natural Resources Defense 

Council (collectively, ASAP), and 

several individuals. With the exception 

of the commenters discussed below, all 

of the commenters listed above support 

LLF’s petition. Like LLF, they did not 

find fault with the standby and off mode 

energy conservation standards 

themselves, but rather criticized DOE’s 

use of the SCC values. 

Three commenters (Chamber, AHAM, 

and NAM) support some of the 

contentions in LLF’s petition, but urged 

DOE not to reconsider the rule. AHAM 

stated that it opposes LLF’s petition 

because granting it would ‘‘seriously 

disrupt’’ the certainty regarding 

microwave oven standby and off mode 

standards that manufacturers are using 

for planning and investment. (AHAM, 

No. 33) 6 NAM requested that DOE 

remove the SCC from the microwave 

rule and finalize the rule to avoid any 

uncertainty to manufacturers. (NAM, 

No. 29) 

Three other commenters, including 

one set of joint comments from 

environmental and energy efficiency 

advocates, oppose the petition in its 

entirety and encouraged DOE to not 

reconsider the rule. (EDF, No. 31; ASAP, 

No. 32; Adam Christensen 

(Christensen), No. 14) The following 

discussion summarizes and responds to 

comments on the LLF petition, as well 

as the LLF petition itself. 

II. The SCC Analysis Did Not Impact 

the Standard as Proposed or Adopted 

As described above, DOE utilized SCC 

values—in both the SNOPR and final 

rule analysis—as a way to assess the 

economic effects of reduced CO2

emissions. DOE calculates a standard’s 

SCC values and incorporates those 

calculations in the analysis for the 

rulemaking to see whether, and if so 

how, the weighing of benefits and costs 

is impacted when the SCC values are 

also applied to the standard. The SCC 

values may or may not affect DOE’s 

decision on a final standard. 

In the microwave oven rule, the SCC 

analysis did not affect DOE’s decision 

regarding the standards that were 

published in the Federal Register at 

either the proposed rule or final rule 

stage because the estimated benefits to 

consumers of the standard exceeded the 

costs of the standard, even without 

considering the SCC values. At the 

proposed rule stage, without adding any 

benefits from reducing CO2, the 

annualized operating cost savings at the 

proposed standard level were 

significantly larger than the annualized 

incremental product costs. See 77 FR 

8528–59. At the final rule stage, rather 

than change the outcome of DOE’s 

microwave oven standards, the updated 

May 2013 SCC values served only as an 

incremental increase in the benefits of 

the standards that DOE had already 

proposed adopting. See 78 FR 36318. 

Specifically, the $4.2 billion net benefits 

of the SNOPR increased to $4.6 billion 

in the final rule as a result of the change 

in SCC values to the 2013 updated 

values. See id. Again, as with the 

SNOPR, the operating cost savings were 

significantly larger than the incremental 

installed costs, even without adding in 

the economic effect of reduced CO2

emissions. See 78 FR 36318–20. Given 

DOE’s legal obligation to establish any 

new or amended energy conservation 

standard at the point that achieves the 

maximum improvement in energy 

efficiency that the Secretary determines 

is technologically feasible and 

economically justified (42 U.S.C. 

6295(o)(3)(A)–(B)), and given that in 

deciding whether an amended standard 

is economically justified, DOE must 

determine whether the benefits of the 

standard exceed its burdens, DOE 

would have chosen the same energy 

conservation standards at both the 

proposed rule and final rule stage 

regardless of its SCC analysis. 

Finally, additional notice and 

comment is required in instances where 

the new data provided the ‘‘most critical 


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7There is no dispute that DOE accepted public 

comment on the 2008 proposed rule and 2012 

SNOPR. 

8Because DOE concludes in this notice to deny 

the petition, DOE does not here detail the legal 

arguments put forth by these organizations as to 

why DOE should deny the petition. It should be 

noted, however, that DOE bases its decision to deny 

the petition on some of the legal bases included in 

these comments, but does not address each legal 

basis discussed by commenters in this notice. 

9The SCC was also discussed in the 2008 NOPR 

(proposing the development of separate standards 

for microwave ovens in active, standby and off 

modes) and the 2009 final rule (finalizing a ‘‘no 

standard’’ standard for microwave ovens in active 

mode and deferring the rulemaking for standby and 

off modes for microwave ovens). A different model 

and different SCC values were utilized for the 2008 

and 2009 rules than the models and SCC values 

used for the 2012 SNOPR and 2013 final rule. For 

the 2008 and 2009 rules, DOE used the most current 

SCC values then available: those based on the 

estimates identified by the study cited in 

‘‘Summary for Policymakers,’’ prepared by Working 

Group II of the IPCC’s ‘‘Fourth Assessment Report,’’ 

to estimate the potential monetary value of CO2

reductions likely to result from standards 

considered in the rulemaking, assigned a SCC value 

range of $0 to $20 (2007$) per ton of CO2 emissions 

in both rulemakings. See 74 FR 16079 (April 8, 

2009); 73 FR 62120 (October 17, 2008). 

10See TSD, Chapter 16 and Appendix 16A, 

available at: http://www.regulations.gov/

#!documentDetail;D=EERE-2011-BT-STD-0048- 

0002. 

11Available at: http://www.whitehouse.gov/sites/

default/files/omb/inforeg/social_cost_of_carbon_

for_ria_2013_update.pdf. 

12See Testimony of Howard Shelanski, available 

at: http://oversight.house.gov/wp-content/uploads/

2013/07/Shelanski-OIRA-Testimony-SCC-7-18.pdf 

(July 18, 2013). 

factual material that is used to support 

the agency’s position.’’ (Chamber of 

Commerce of U.S., 443 F.3d at 900) 

UARG did not specifically contend that 

DOE violated the APA, but did 

comment that the SCC values are a 

‘‘critical assumption’’ for DOE’s 

economic analysis for the microwave 

oven rule, stating that Executive Order 

12866 requires DOE to provide the 

public notice and an opportunity to 

comment on the SCC values at both the 

proposed and final rule stage because 

the SCC values were, according to 

UARG, a critical assumption for DOE’s 

economic analysis for the final rule. 

(UARG, No. 28) As described above, the 

SCC values were not critical to any 

analysis in DOE’s final rule. Although 

the SCC values increased in the 2013 

update, this input did not influence 

DOE’s decision regarding the final 

energy conservation standard chosen. 

DOE proposed the same standard in the 

SNOPR as it finalized in the final rule.7

Because DOE adopted the same 

standard in the final rule that it had 

proposed in the SNOPR, LLF has not 

demonstrated that the Department 

would—or even might—have changed 

the standard adopted in the final rule if 

LLF (and others) had been given an 

opportunity to comment on the 2013 

SCC values. To the contrary, even if 

comments had convinced DOE not to 

update the SCC values, given that DOE 

adopted the same standard it had 

proposed based on the 2010 SCC values 

DOE would have chosen the same 

standards as it did in the final rule. 

Moreover, as described previously, the 

other benefits of the rule so outweighed 

its costs that DOE’s choice of a proposed 

standard was not influenced by the SCC 

analysis. Even when the SCC values 

increased, DOE’s choice of a final 

standard was not influenced by the SCC 

analysis. As demonstrated in the table 

above, this remains the case even 

applying the modifications released by 

OMB on November 1. Therefore, any 

reconsideration of the microwave oven 

rule would be an inefficient use of 

government resources and would not 

inform further the choice of final 

standard to be adopted. 

III. The Final Rule Was the Logical 

Outgrowth of the Proposed Rule 

In response to the notice of LLF’s 

petition, many commenters agreed with 

LLF that because the final rule applied 

the 2013 SCC values whereas the 

SNOPR applied the 2010 SCC values 

and there was not an opportunity for the 

public to comment on the change to the 

SCC values between the SNOPR and 

final rule stages, the notice and 

comment requirements under the APA 

were violated. (Laclede, No.7; Tri-State, 

No. 18; Southeastern, No. 17; GRU, No. 

21; CEI, No. 34; AHAM, No. 33; NFIB, 

No. 6; API, No. 30; NAM, No. 29; George 

Mason, No. 11; AFPM, No. 16; APGA, 

No. 13; GWU–RSC, No. 5; Chamber, No. 

23; TRCS, No. 25; IER, No. 9; AFFORD, 

No. 20; IECA, No. 22; AGA, No. 10; 

Cato, No. 8; CE, No. 15; ATR, No. 12; 

ACC, No. 29; FMEA, No. 19; Heritage, 

No. 26) A few commenters contended 

that the notice provided by the entirety 

of DOE’s rulemaking easily provided 

sufficient notice and comment regarding 

the SCC values and the final rule (and 

associated SCC values) were the logical 

outgrowth of the SNOPR. (ASAP, No. 

32; EDF, No. 31; Christensen, No. 14) 8

The APA requires Federal agencies to 

give interested persons an opportunity 

to participate in a rulemaking through 

submission of written data, views or 

arguments, after the Federal agency 

gives proper notice. (5 U.S.C. 553(c)) As 

described, DOE has provided the public 

with notice and the opportunity to 

comment throughout this rulemaking, 

including the opportunity to comment 

on DOE’s use of the SCC values. In the 

SNOPR, DOE sought to monetize the 

cost savings associated with the reduced 

carbon emissions that would result from 

the energy conservation standards, if 

adopted. DOE included in the SNOPR 

Technical Support Document (TSD) a 

robust description of the data source, 

the peer-reviewed economic models (the 

FUND, DICE, and PAGE models) and 

the methodology used to derive the 

SCC.9 Further, DOE explicitly stated in 

the SNOPR, SNOPR TSD, final rule, and 

final rule TSD that, while the 

methodology used to derive the SCC 

would not change, the SCC values used 

in the rulemaking were undergoing 

review and were subject to change based 

on updated inputs to the models. In the 

SNOPR, DOE stated that the 2010 SCC 

estimates were presented and utilized in 

DOE’s analyses with an 

acknowledgement that many 

uncertainties are involved and with a 

clear understanding that the estimates 

should be updated over time to reflect 

increased knowledge of the science and 

economics of climate change. 77 FR 

8553. At the time of the SNOPR’s 

publication, the 2010 SCC values were 

used because they were, at the time, the 

most recent interagency estimates. Id. 

DOE cautioned, however, that the 

interagency process planned to update 

these estimates as the science and 

economic understanding of climate 

change and its impact on society 

improved over time, noting that the 

interagency group had set a preliminary 

goal of revisiting the SCC values within 

two years or at such time as 

substantially updated models become 

available. Id. at 8554. DOE stated that 

current SCC estimates should be treated 

as ‘‘provisional and revisable’’ because 

the values will evolve with improved 

scientific and economic understanding. 

Id. at 8555. These statements were 

reiterated in chapter 16 of the TSD that 

supported the SNOPR.10 The SNOPR 

TSD included the 2010 IWG’s TSD. 

In the interim between the SNOPR 

and the final rule, in May 2013, the IWG 

released revised SCC values that 

estimated higher values for CO2

emissions avoided than the 2010 SCC 

values.11 According to OMB, since the 

release of the SCC values in February 

2010, numerous rulemakings have used 

the 2010 values for the SCC and many 

of those rulemakings received extensive 

public comments, including comments 

on the discount rate chosen and the 

three peer-reviewed models used to 

develop the SCC estimates.12 Since the 

2010 SCC values were published, the 

three models (the FUND, DICE, and 

PAGE models) that underpin the SCC 

estimates were all updated and used in 


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79648 Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 

13See id. 

14See id. 

15See Appendix 16A and Appendix16B, 

available at: http://www.regulations.gov/

#!documentDetail;D=EERE-2011-BT-STD-0048- 

0021. 

16 DOE recognizes that ACC and the Chamber 

both attached to their comments on the petition athand a September 4, 2013, petition to OMB for 

correction to the 2010 and 2013 SCC TSDs. Because 

those petitions are under consideration at OMB, in 

this notice, DOE only addresses the comments 

made in the microwave rule petition. 

peer-reviewed literature.13 The changes 

made in May 2013 to the SCC estimates 

reflect the refinements to the underlying 

models, not to the methodology 

followed or to any Federal government 

inputs, such as discount rates, 

population growth, climate sensitivity 

distribution, and socio-economic 

trajectories.14

Consistent with its statement in the 

SNOPR that it would use the most 

recent SCC values, DOE utilized the 

2013 SCC values in the June 2013 final 

rule. Again, DOE stated that the SCC 

estimates are provisional and would be 

updated over time to reflect increasing 

knowledge of the science and 

economics of climate impacts. 78 FR 

36349–51. In the final rule, DOE 

described the updates to the three 

integrated assessment models that are 

used to estimate the SCC (FUND, DICE, 

and PAGE models). 78 FR 36349. The 

final rule TSD includes as appendices 

both the 2010 and 2013 interagency 

TSDs upon which the SCC values are 

based.15

The regulatory history cited above 

also refutes any contention that—the 

2013 SCC values were not a ‘‘logical 

outgrowth’’ of the proposed rule—and 

therefore that the use of the 2013 SCC 

values violates the notice and 

opportunity to comment provisions of 

the APA. A final rule satisfies the 

‘‘logical outgrowth’’ test if parties 

should have anticipated that the change 

at issue was possible and, thus, 

reasonably should have filed their 

comments during the comment period. 

(Ne. Md. Waste Disposal Auth. v. EPA, 

358 F.3d 936, 952 (D.C. Cir. 2004) 

(citing City of Waukesha v. EPA, 320 

F.3d 228, 245 (D.C. Cir. 2003)) An 

agency that adopts a final rule that 

differs from its proposed rules is 

required to provide notice and an 

additional opportunity for public 

comment when the changes are so major 

that the original notice did not 

adequately frame the subjects for 

discussion. The purpose of the new 

notice is to allow interested parties a 

fair opportunity to comment upon the 

final rules in their altered form. The 

agency need not renotice changes that 

follow logically from, or that reasonably 

develop, the rule the agency proposed 

originally. (Connecticut Light & Power 

Co. v. Nuclear Regulatory Comm’n, 673 

F.2d 525, 533 (D.C. Cir. 1982) (citations 

omitted)) 

With regard to DOE’s calculation of 

the monetized benefits associated with 

the reduced carbon emissions, DOE gave 

notice to interested parties both in the 

SNOPR and the TSD to the SNOPR that 

the agency was considering SCC values 

in its decision-making and that those 

SCC values were subject to change 

based on scientific and economic 

understanding of climate change and 

were expected to be updated 

approximately every two years. 

Moreover, DOE relied on SCC values 

that were generated from the same 

models (i.e., the FUND, DICE, and PAGE 

models) for both the SNOPR and final 

rule. In Solite Corporation v. EPA, the 

DC Circuit held that an agency is not 

required to provide additional notice 

and opportunity for comment when its 

‘‘methodology remain[s] constant’’ and 

new data is used to ‘‘check or confirm 

prior assessments.’’ (952 F.2d 473, 485 

(D.C. Cir. 1991); see also Chamber of 

Commerce of U.S. v. S.E.C., 443 F.3d 

890, 900 (D.C. Cir. 2006)) Where, as 

here, an agency is continuing to use the 

same methodologies (i.e., the FUND, 

DICE, and PAGE models) but is 

updating the data used in those models, 

additional notice and comment is not 

required. 

LLF also contends that DOE 

disregarded its obligation to have a 

transparent, public rulemaking as 

required under Executive Order 13563. 

Several commenters agreed with LLF 

that DOE’s change in SCC values was 

not transparent; some of these 

commenters argued that this apparent 

lack of transparency is a violation of 

Executive Order 13563 (see e.g., 

Southeastern, No. 17) whereas others 

pointed to the need for transparency in 

general as a means to good governance 

(see e.g., Chamber, No. 23). IER 

commented that the SCC process is a 

‘‘black box’’ and because intermediate 

results from the modeling runs are not 

available, it is not possible for outside 

analysts to check the robustness of the 

IWG’s conclusions. (IER, No. 9) Some 

entities commented that they would 

have raised a number of concerns 

regarding the basic assumptions and 

methodology made by the IWG with 

regard to the 2010 SCC values if notice 

and an opportunity for comment had 

been provided at that time. (FMEA, No. 

19; GRU, No. 21) (See also Laclede, No. 

7; Heritage, No. 26; NFIB, No. 6; API, 

No. 30; NAM, No. 29; APGA, No. 13; 

GWU–RSC, No. 5; TRCS, No. 25; IER, 

No. 9; IECA, No. 22; AGA, No. 10; Cato, 

No. 8; CEI, No. 34; ATR, No. 12; Todd 

Kiefer (Kiefer), No. 4) 

As evidenced by the regulatory 

history described previously, the 

rulemaking at hand provided the public 

a 60-day comment period during which 

comments were made through a variety 

of means and the materials related to the 

rulemaking were kept on the microwave 

oven docket on the regulations.gov Web 

site at http://www.regulations.gov/

#!docketDetail;D=EERE-2011-BT-STD0048. As detailed at the same Web site, 

a public meeting was held on the 

SNOPR on March 14, 2012. The 

technical and scientific findings that 

DOE relied upon for its SNOPR and 

final rule were included in the rule 

itself, as well as the relevant TSDs. 

DOE’s assessment with respect to the 

SCC was very clearly described in each 

of those documents. All of these 

materials were provided in a searchable 

format on the electronic docket. DOE 

accepted and responded to public 

comments on all aspects of this 

rulemaking. 

In response to the notice of LLF’s 

petition, one stakeholder commented on 

DOE’s authority under EPCA to evaluate 

SCC values when setting energy 

conservation standards. Laclede 

commented that section 331 of EPCA, as 

amended, was intended to constrain 

cost-benefit analyses to utility costs, not 

‘‘environmental externalities’’ such as 

the SCC. (Laclede, No. 7) As described 

above, DOE did not consider SCC as a 

utility cost in the microwave oven 

rulemaking. 

IECA also argued that DOE’s use of 

the SCC makes DOE’s rule ‘‘significant’’ 

under Executive Order 12866 and OMB 

requirements because DOE intends to 

use the SCC in multiple rulemakings, 

which will increase costs to an amount 

above $100 million. (IECA, No. 22) DOE 

notes that the final rule was deemed to 

be an ‘‘economically significant 

regulatory action’’ under section 3(f)(1) 

of Executive Order 12866. Accordingly, 

as required by section 6(a)(3) of the 

Executive Order, DOE prepared a 

regulatory impact analysis that OMB 

reviewed in addition to OMB review of 

the final rule itself. See 78 FR 36365. 

ACC commented that the IWG failed 

to disclose the effects and uncertainties 

related to alternative regulatory actions 

as required by OMB Circular A–4.16

(ACC, No. 29) Through its extensive 

analysis of different TSLs, including 

their effects and uncertainties, DOE met 

this requirement with regard to the final 

energy conservation standards as part of 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 251 / Tuesday, December 31, 2013 / Proposed Rules 79649 

17Available at: http://www.whitehouse.gov/sites/

default/files/omb/inforeg/social_cost_of_carbon_

for_ria_2013_update.pdf. 

18Available at: http://www.cio.noaa.gov/services_

programs/pdfs/OMB_Peer_Review_Bulletin_m05- 

03.pdf. 

its Executive Order 13563 review. See 

78 FR 36365. 

IV. Comments on Sufficiency of the 

Science and Precedential Effects 

In responding to the August 16, 2013, 

Federal Register petition document, 

many commenters questioned the 

scientific and economic basis of the SCC 

values. These commenters made 

extensive comments about: the alleged 

lack of economic theory underlying the 

models; the sufficiency of the models 

for policy-making; potential flaws in the 

models’ inputs and assumptions 

(including the discount rates and 

climate sensitivity chosen); whether 

there was adequate peer review of the 

three models; whether there was 

adequate peer review of the TSD 

supporting the 2013 SCC values; 17

whether the SCC estimates comply with 

OMB’s ‘‘Final Information Quality 

Bulletin for Peer Review’’ 18 and DOE’s 

own guidelines for ensuring and 

maximizing the quality, objectivity, 

utility and integrity of information 

disseminated by DOE; whether DOE’s 

use of the updated SCC values has 

precedential effect for other agency 

rulemakings; and why DOE is 

considering global benefits of carbon 

dioxide emission reductions rather than 

solely domestic benefits. (See CEI, No. 

34; Heritage, No. 24; IER, No. 9; Cato, 

No. 8; AFFORD, No. 20; ATR, No. 12; 

ACC, No. 29; AFPM, No. 16; FMEA, No. 

19; Heritage, No 26; IECA, No. 22; 

TRCS, No. 25; SEEP No. 27; Kiefer, No. 

4; ACC, No. 29; Chamber, No. 23; 

Laclede, No. 7; API, No. 30; APGA, No. 

13; GWU–RSC, No. 5; AGA, No. 10; 

GRU, No. 21; NAM, No. 29; George 

Mason, No. 11) 

As described above, OMB has 

announced minor technical corrections 

to the 2013 SCC values and a new 

opportunity for public comment on the 

revised TSD underlying the SCC 

estimates. Comments regarding the 

underlying science and potential 

precedential effect of the SCC estimates 

resulting from the interagency process 

should be directed to that process. See 

78 FR 70586. Additionally, as EDF 

documented in its comments, several 

current rulemakings also use the 2013 

SCC values and the public is welcome 

to comment on the values as applied in 

those rulemakings just as the public was 

welcome to comment on the use and 

application of the 2010 SCC values in 

the many rules that were published 

using those values in the past three 

years. (EDF, No. at pp. 4–5). 

Finally, in addition to the topics 

above, commenters provided feedback 

on several other issues that go beyond 

the scope of the notice asking for 

comments on whether DOE should 

reconsider the microwave oven rule. 

IECA commented that the use of SCC 

values in regulation will negatively 

impact U.S. manufacturers, shipping 

U.S. production, jobs and investments 

overseas, which IECA contends would 

lead to more CO emissions by non-U.S. 

energy sources. IECA also questioned 

why the benefits of U.S. production to 

U.S. consumers and the economy are 

not considered by DOE. (IECA, No. 22) 

Other comments include statements 

about whether climate change is 

occurring at all, contentions that climate 

change may be natural and not humancaused, and that climate change may not 

have significant, adverse impacts; 

statements that all fossil-fueled power 

plants should be replaced with nuclear 

power plants and DOE should be 

reorganized to only work on nuclear 

issues; suggestions to use the IPCC Fifth 

Assessment Report when considering 

SCC values; statements that effects due 

to other greenhouse gases and other 

harms to society need to be included in 

the SCC as well; comments that the 

standards rule (apart from the SCC 

portion) must be reopened because the 

regulation fails to pass benefit-cost tests 

because it assumes irrational consumer 

behavior; and questions about why 

comments on the Draft National Climate 

Assessment were not addressed in 

DOE’s rule. 

V. Conclusion 

After reviewing LLF’s petition and 

comments on the petition, DOE has 

concluded that it has provided 

sufficient notice and the opportunity for 

public comment as required under the 

Administrative Procedure Act and a 

level of transparency in accordance with 

Executive Order 13563 regarding the use 

of SCC values in the microwave oven 

SNOPR and final rule. DOE has also 

concluded that reconsidering the 

microwave oven final rule would not 

result in any change to the standard 

ultimately adopted by DOE. As a result 

of the above analysis, and in 

consideration of LLF’s petition and the 

comments received thereon, DOE denies 

the petition. 

Issued in Washington, DC, on December 

24, 2013. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

[FR Doc. 2013–31273 Filed 12–30–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2010–BT–DET–0040] 

RIN 1904–AC52 

Energy Conservation Program: 

Proposed Determination of Set-Top 

Boxes and Network Equipment as a 

Covered Consumer Product 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Proposed determination; 

withdrawal. 

SUMMARY: The U.S. Department of 

Energy (DOE) withdraws a proposed 

determination published June 15, 2011 

that set-top boxes (STBs) and network 

equipment qualify as a covered product 

under Part A of Title III of the Energy 

Policy and Conservation Act (EPCA), as 

amended. DOE is taking this action in 

light of a consensus agreement entered 

by a broadly representative group that 

DOE believes has the potential to 

achieve significant energy savings in 

STBs. 

DATES: The proposed determination is 

withdrawn December 31, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Jeremy Dommu, 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. 

Telephone: (202) 586–9870. Email: 

Jeremy.Dommu@ee.doe.gov. 

Ms. Celia Sher, U.S. Department of 

Energy, Office of the General Counsel, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

Telephone: (202) 287–6122. Email: 

Celia.Sher@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority 

Title III of EPCA (42 U.S.C. 6291, et 

seq.) sets forth a variety of provisions 

designed to improve energy efficiency. 

Part A of Title III of EPCA (42 U.S.C. 

6291–6309) established the ‘‘Energy 

Conservation Program for Consumer 

Products Other Than Automobiles,’’ 

which covers consumer products and 


emcdonald on DSK67QTVN1PROD with PROPOSALS