83 FR 18431 - Protection of Stratospheric Ozone: Notification of Guidance and a Stakeholder Meeting Concerning the Significant New Alternatives Policy (SNAP) Program
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 82 (April 27, 2018)
Federal Register Volume 83, Issue 82 (April 27, 2018)
| Page Range | 18431-18436 | |
| FR Document | 2018-08310 |
[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)] [Rules and Regulations] [Pages 18431-18436] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-08310] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2003-0118; FRL-9977-05-OAR] Protection of Stratospheric Ozone: Notification of Guidance and a Stakeholder Meeting Concerning the Significant New Alternatives Policy (SNAP) Program AGENCY: Environmental Protection Agency (EPA). ACTION: Notification of guidance and stakeholder meeting. ----------------------------------------------------------------------- SUMMARY: The U.S. Environmental Protection Agency (EPA) is providing this document to dispel confusion and provide regulatory certainty for stakeholders affected by EPA's Significant New Alternatives Policy program final rule issued on July 20, 2015, and the decision of the Court of Appeals for the District of Columbia Circuit in the case of Mexichem Fluor, Inc. v. EPA. The 2015 Rule changed the listings for certain hydrofluorocarbons in various end-uses in the aerosols, refrigeration and air conditioning, and foam blowing sectors. It also changed the listings for certain hydrochlorofluorocarbons being phased out of production under the Montreal Protocol on Substances that Deplete the Ozone Layer and section 605 of the Clean Air Act. The court vacated the 2015 Rule ``to the extent it requires manufacturers to replace HFCs with a substitute substance'' and remanded the rule to EPA for further proceedings. This document provides guidance to stakeholders that, based on the court's partial vacatur, in the near- term EPA will not apply the HFC listings in the 2015 Rule, pending a rulemaking. This document also provides the Agency's plan to begin a notice-and-comment rulemaking process to address the remand of the 2015 Rule. The Agency is also providing notice of a stakeholder meeting as part of the rulemaking process. DATES: EPA will hold a stakeholder meeting on May 4, 2018 to enable stakeholders to provide input as the Agency prepares to engage in rulemaking to address the court's remand of the 2015 Rule. The meeting will be held at 9:30 a.m. to 12:30 p.m. ET on Friday, May 4, 2018 at EPA, William Jefferson Clinton East Building, Room 1153, 1201 Constitution Avenue NW, Washington, DC 20004. Information concerning this meeting will be available on the EPA website: https://www.epa.gov/snap. Please RSVP for this meeting by contacting Chenise Farquharson at [email protected] by April 27, 2018. FOR FURTHER INFORMATION CONTACT: Chenise Farquharson, Stratospheric Protection Division, (6205T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-7768; email address: [email protected]. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? This document provides information related to the EPA's Significant New Alternatives Policy (SNAP) program final rule (2015 Rule) issued on July 20, 2015 (80 FR 42870), and the decision of the Court of Appeals for the District of Columbia Circuit in the case of Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017). The 2015 Rule changed the listings for certain hydrofluorocarbons (HFCs) in various end-uses in the aerosols, refrigeration and air conditioning, and foam blowing sectors. The listings were changed from acceptable, or acceptable subject to use conditions, to unacceptable, or acceptable subject to narrowed use limits (i.e., acceptable only for limited uses for a specified period of time). The 2015 Rule also changed the listings for certain hydrochlorofluorocarbons (HCFCs) being phased out of production under the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) and section 605 of the Clean Air Act (CAA). The court vacated the 2015 Rule ``to the extent it requires manufacturers to replace HFCs with a substitute substance'' and remanded the rule to EPA for further proceedings. Through this document, EPA is taking three actions in response to the court's decision: (1) Providing guidance to stakeholders on how EPA will implement the court's partial vacatur of the 2015 Rule in the near term, pending a rulemaking; (2) providing information on the Agency's plan to address the court's remand of the 2015 Rule through rulemaking; and (3) providing notice of a stakeholder meeting to help inform the Agency as it begins developing a [[Page 18432]] proposed rule in response to the court's remand. EPA is issuing guidance to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule; thus, this document may be of interest to the following: TABLE 1--Potentially Regulated Entities by North American Industrial Classification System (NAICS) Code ---------------------------------------------------------------------------------------------------------------- Category NAICS code Description of regulated entities ---------------------------------------------------------------------------------------------------------------- Industry..................................... 238220 Plumbing, Heating, and Air Conditioning Contractors. Industry..................................... 324191 Petroleum Lubricating Oil and Grease Manufacturing. Industry..................................... 325199 All Other Basic Organic Chemical Manufacturing. Industry..................................... 325412 Pharmaceutical Preparation Manufacturing. Industry..................................... 325510 Paint and Coating Manufacturing. Industry..................................... 325520 Adhesive Manufacturing. Industry..................................... 325612 Polishes and Other Sanitation Goods. Industry..................................... 325620 Toilet Preparation Manufacturing. Industry..................................... 325998 All Other Misscellaneous Chemical Product and Preparation Manufacturing. Industry..................................... 326140 Polystyrene Foam Product Manufacturing. Industry..................................... 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry..................................... 333415 Air Conditioning and Warm Air Heating Equipment and Commerial and Industrial Refrigeration Equipment Manufacturing. Industry..................................... 336211 Motor Vehicle Body Manufacturing. Industry..................................... 3363 Motor Vehicle Parts Manufacturing. Industry..................................... 336611 Ship Building and Repairing. Industry..................................... 336612 Boat Building. Industry..................................... 339113 Surgical Appliance and Supplies Manufacturing. Retail....................................... 423620 Household Appliances, Electric Housewares, and Consumer Electronics Merchant Wholesalers. Retail....................................... 423740 Refrigeration Equipment and Supplies Merchant Wholesalers. Retail....................................... 44511 Supermarkets and Other Grocery (except Convenience) Stores. Retail....................................... 445110 Supermarkets and Other Grocery (except Convenience) Stores. Retail....................................... 445120 Convenience Stores. Retail....................................... 44521 Meat Markets. Retail....................................... 44522 Fish and Seafood Markets. Retail....................................... 44523 Fruit and Vegetable Markets. Retail....................................... 445291 Baked Goods Stores. Retail....................................... 445292 Confectionary and Nut Stores. Retail....................................... 445299 All Other Specialty Foods Stores. Retail....................................... 4453 Beer, Wine, and Liqour Stores. Retail....................................... 446110 Pharmacies and Drug Stores. Retail....................................... 44711 Gasoline Stations with Convenience Stores. Retail....................................... 452910 Warehouse Clubs and Supercenters. Retail....................................... 452990 All Other General Merchandise Stores. Services..................................... 72111 Hotels (except Casino Hotels) and Motels. Services..................................... 72112 Casino Hotels. Retail....................................... 72241 Drinking Places (Alcoholic Beverages). Retail....................................... 722513 Limited-Service Restaurants. Retail....................................... 722514 Cafeterias, Grill Buffets, and Buffets. Retail....................................... 722515 Snack and Nonalcoholic Beverage Bars. ---------------------------------------------------------------------------------------------------------------- This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be interested in this document. B. How can I get copies of this document and other related material? 1. Docket. EPA has not established a new docket for this document. Publicly available information on the related 2015 Rule can be found under Docket ID No. EPA-HQ-OAR-2014-0198. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742. 2. Electronic Access. You may access this Federal Register document electronically from the Government Printing Office under the ``Federal Register'' listings at FDSys (https://www.thefederalregister.org/fdsys/browse/collection.action?collectionCode=FR). II. How is EPA responding to the court's decision on the July 2015 SNAP final rule? Through this document, EPA is taking three actions in response to the court's decision: (1) Providing guidance to stakeholders on how EPA will implement the court's partial vacatur of the 2015 Rule in the near term, pending a rulemaking; (2) providing information on the Agency's plan to address the court's remand of the 2015 Rule through rulemaking; and (3) providing notice of a stakeholder meeting to help inform the Agency as it begins developing a proposed rule in response to the court's remand. As previously mentioned, EPA is issuing this guidance to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule. Specifically, until EPA completes a rulemaking addressing the remand, EPA will not apply the HFC listings in the 2015 Rule. While this guidance is intended to provide a clear statement of EPA's understanding of the [[Page 18433]] court's vacatur in Mexichem, it is not intended to represent a definitive or final statement by the Agency on the court's decision as a whole. In fact, EPA anticipates that its actions in response to the decision will be informed by input from stakeholders and the notice- and-comment rulemaking process that will address the court's remand. A. Background The SNAP program implements section 612 of the Clean Air Act. Several major provisions of section 612 are: 1. Rulemaking Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II (HCFC) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment and (2) is currently or potentially available. 2. Listing of Unacceptable/Acceptable Substitutes Section 612(c) requires EPA to publish a list of the substitutes that it finds to be unacceptable for specific uses and to publish a corresponding list of acceptable substitutes for specific uses. 3. Petition Process Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c). 4. 90-Day Notification Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes. In 1994, EPA published a rule setting forth the framework for administering the SNAP program (``1994 Framework Rule'') (59 FR 13044; March 18, 1994). Among other things, that rule established prohibitions on use of substitutes inconsistent with the SNAP listings, including a prohibition stating that ``[n]o person may use a substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.'' 40 CFR 82.174. The 1994 Framework Rule defined ``use'' broadly as ``any use of a substitute for a Class 1 or Class II ozone-depleting compound, including but not limited to use in a manufacturing process or product, in consumption by the end-user, or in intermediate uses, such as formulation or packaging for other subsequent uses.'' 40 CFR 82.172. Thus, for example, use encompasses not only the manufacture of equipment with a substitute, such as the manufacture of a foam-blowing system; it also includes the use of that foam system to blow the foam into another product, such as foam cushions, or to blow the foam as insulation in a building. EPA issued its initial listing decisions as part of the 1994 Framework Rule and has continued to list substitutes. The lists of fully acceptable substitutes are not included in the CFR but instead are available at https://www.epa.gov/snap/snap-substitutes-sector. All other listing decisions (i.e., unacceptable or with restrictions on use) are contained in tables provided in appendices to EPA's SNAP regulations (40 CFR part 82 subpart G). There are separate tables for each of the major industrial use sectors, including adhesives, coatings and inks; aerosols; cleaning solvents; fire suppression and explosion protection; foam blowing agents; refrigeration and air conditioning; and sterilants, as well as separate tables for each type of listing: acceptable with use conditions, acceptable subject to narrowed use limits or unacceptable. The 1994 Framework Rule, as implemented by EPA, has applied to all users (e.g., product manufacturers, intermediate users, end-users) within a regulated end-use without making distinctions between product manufacturers and other users or between those who were using ozone- depleting substances (ODS) at the time a substitute was listed as unacceptable and those who were not. The 2015 Rule, like all other actions EPA has taken implementing the 1994 Framework Rule over the last quarter-century, also made no such distinctions. It simply changed the listings for various previously listed substitutes. B. How is EPA implementing the court's partial vacatur of the 2015 Rule in the near term, pending rulemaking? In Mexichem Fluor v. EPA, the court ``vacate[d] the 2015 Rule to the extent it requires manufacturers to replace HFCs with a substitute substance.'' 866 F.3d at 464. For the reasons explained below, EPA will not apply the HFC use restrictions or unacceptability listings in the 2015 Rule for any purpose prior to completion of rulemaking. EPA's implementation of the court's vacatur pending rulemaking is intended to dispel confusion and provide regulatory certainty in the near term for users in the refrigeration and air conditioning, foam blowing and aerosol end-uses affected by the HFC listing changes in the 2015 Rule. Two chemical suppliers, Arkema and Mexichem (Petitioners), challenged the portion of the 2015 Rule that removed the listings of certain HFCs as acceptable, or acceptable subject to use conditions in certain end-uses, and listed those HFCs as unacceptable, or acceptable subject to narrowed use limits, in the same end-uses. The Petitioners raised two central arguments. First, they claimed that EPA did not have the authority to require that users of HFCs switch to another alternative. Second, they challenged the various listing decisions as ``arbitrary and capricious.'' The court rejected the Petitioners' arbitrary and capricious challenges but ruled that EPA did not have authority to ``require manufacturers to replace HFCs with a substitute substance.'' Id. at 464. The court determined that the word ``replace'' as used in CAA section 612(c) applies only to the immediate replacement of an ODS, stating that ``manufacturers `replace' an ozone-depleting substance when they transition to making the same product with a substitute substance. After that transition has occurred, the replacement has been effectuated, and the manufacturer no longer makes a product that uses an ozone-depleting substance.'' Id. at 459. Although the court's decision mainly discusses manufacturers, footnote 1 of the court's opinion indicates that ``[the court's] interpretation of Section 612 applies to any regulated parties that must replace ozone-depleting substances within the timelines specified by Title VI.'' \1\ Id. at 457. --------------------------------------------------------------------------- \1\ Section 612(c) provides that ``the Administrator shall promulgate rules under this section providing that it shall be unlawful to replace any class I or class II substance with any substitute substance'' where the Administrator determines that a safer alternative is available. --------------------------------------------------------------------------- The language of the vacatur refers to ``manufacturers'' and to the replacement of HFCs. The opinion appears to use the term ``manufacturers'' in the sense of ``product manufacturers.'' See Id. at 460.\2\ However, nothing in the [[Page 18434]] regulatory language promulgated as part of the challenged 2015 Rule draws a distinction between product manufacturers and other users of substitutes.\3\ Nor does the 2015 Rule draw a distinction between persons using HFCs and those using an ODS. The regulatory text included in the 2015 Rule is comprised solely of tables listing EPA's decision on certain substitutes for specific end-uses. Similarly, the 1994 Framework Rule distinguishes neither between product manufacturers and other users nor between someone using an HFC and someone using an ODS. For each specified end-use, the 2015 Rule, as issued, in conjunction with the 1994 Framework Rule, would prohibit any user from using a substitute listed as unacceptable--or from using, without adhering to narrowed use limits, a substitute listed as acceptable subject to such limits--after the relevant date. Thus, the SNAP regulations as currently written do not provide the distinctions that would be necessary to accommodate the letter of the court's vacatur. The narrower language used by the court does not exist in either the 2015 Rule or the 1994 Framework Rule; nor do the distinctions discussed above emerge when those two rules are read together. --------------------------------------------------------------------------- \2\ While ``product'' is not defined in the SNAP regulations, other portions of EPA's stratospheric protection regulations distinguish between ``products'' and ``substances.'' See, e.g, the definition of ``controlled substance'' at 40 CFR 82.3; the definitions of ``product containing'' and ``manufactured with a controlled substance'' at 40 CFR 82.106, \3\ Under the 1994 Framework Rule, EPA defined manufacturer as ``any person engaged in the direct manufacture of a substitute.'' 40 CFR 82.172. SNAP listing decisions, such as those at issue in the 2015 Rule, do not apply to manufacturers of the substitute but rather to the subsequent use of that substitute in a product or process or other use. --------------------------------------------------------------------------- The regulatory tables, which are the only regulatory text promulgated in the 2015 Rule, are comprised of individual listing decisions. Each listing of a substitute is comprised of at least four columns of information. The first column lists the regulated end-use, such as ``Retail food refrigeration (supermarket systems) (new)'' or ``Rigid Polyurethane [Foam]: Appliance.'' The second column lists the substitute or substitutes to which the listing decision applies. The third column identifies the ``decision'' (``Unacceptable'' or ``Acceptable subject to narrowed use limits'') and also identifies the date on which the listing decision will apply. The final column provides ``Further information.'' Each listing of a substitute as acceptable subject to narrowed use limits contains an additional column identifying the ``Narrowed use limits.'' This column identifies the limited uses for which the substitute remains acceptable for use (e.g., ``military or space- and aeronautics-related applications'' and the time period for which use remains acceptable (e.g., ``Acceptable from January 1, 2017, until January 1, 2022''). Thus, for each listing decision there is no language that could be understood as being removed or struck out by the court so that some portion of the listing decision would remain in effect pending EPA's action on remand. While EPA could, on remand, rewrite the individual listings to create sub-listings for different types of users--e.g., separating out manufacturers, or separating out those still using ODS--such additions to the 2015 Rule would require notice-and-comment rulemaking. This situation contrasts with those where a court decision affects specific regulatory language, striking some of that language while leaving the remainder untouched. Here, there is simply no regulatory language that can be parsed in that manner. Nor is waiting to address the court's vacatur until the agency can complete notice-and-comment rulemaking a satisfactory solution. The court clearly intended to vacate the 2015 Rule to some ``extent.'' The mandate has issued; accordingly, the court's decision is now in effect. In addition, EPA is aware that regulated entities are experiencing substantial confusion and uncertainty regarding the meaning of the vacatur in a variety of specific situations. Since the court mandate issued, EPA has received a significant number of inquiries from equipment manufacturers, refrigerant producers, and various other users. Some have asked general questions regarding the effect of the partial vacatur of the 2015 Rule, while others have asked more specific questions about compliance both for those end-uses for which the compliance dates have passed and for those for which there is a future compliance date. For those end-uses with future compliance dates, these users are seeking guidance to help them make plans for future operations; if these users of HFCs would not be able to continue such use, they may need to take steps well in advance of the compliance date, such as researching and developing revised foam formulations; retooling manufacturing facilities; testing updated equipment or products to be certified to industry standards; and achieving compliance with fire codes. Other stakeholders have expressed confusion in understanding how the partial vacatur affects particular types of equipment that might fall under multiple end-uses, such as a stand- alone commercial refrigerator with foam insulation. Deferring answers to stakeholder questions until the completion of rulemaking would ignore the practical realities faced by the business community. In addition, attempting to draw the distinctions made by the court would present practical difficulties for implementation in advance of rulemaking. First, the SNAP regulations do not address what constitutes product manufacture. EPA went through a full notice-and-comment rulemaking to address that issue with respect to appliances for the purpose of regulations implementing the HCFC phaseout under section 605 of the Clean Air Act. See, e.g., ``Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,'' 74 FR 66439-66441 (Dec. 15, 2009). In that rulemaking, EPA recognized that while some appliances are shipped fully assembled and charged, others are assembled or charged in the field. With respect to the latter, there was ambiguity as to the point of manufacture and the identity of the manufacturer. EPA provided a definition to resolve that ambiguity in the context of those regulations. Without a clear definition of product manufacture in the SNAP context, there may be considerable ambiguity about who is the ``manufacturer'' for certain products--for example, supermarket refrigeration systems--and resulting confusion about the impacts of the court's decision. Moreover, in footnote 1 of the decision, the court indicates that the interpretation it adopts in the decision ``applies to any regulated parties that must replace ozone-depleting substances.'' This appears to extend the court's holding to apply to any user subject to the HFC listing changes, and not simply manufacturers. 866 F.3d at 457 (emphasis added). Implementing the vacatur more narrowly in the near term would not only raise practical implementation difficulties but likely would be inconsistent with the court's language in footnote 1. Second, neither the 1994 Framework Rule nor the 2015 Rule addresses the date by which a manufacturer must have switched to an HFC in order to avoid being subject to the 2015 Rule listing decisions. Possible dates could include the effective date of the 2015 Rule; the applicability date of the specific listing change; or the date on which the court's mandate issued. This lack of clarity could result in confusion about whether or not the listings in the 2015 Rule apply to individual manufacturers. Even if there were a clear date that would govern, there are currently no requirements for manufacturers to document the date of [[Page 18435]] a change to an HFC; this lack of documentation would hinder the agency's ability to implement the rule as envisioned in the court's opinion, because it would not know whether or on what date manufacturers had made the switch. Third, because neither the 1994 Framework Rule nor the 2015 Rule creates a distinction between users using ODS and those using substitutes, neither rule addresses more complex situations in which both types of substances may be in use. Specifically, many manufacturers own multiple facilities, have multiple production lines at a single facility, make multiple different products or product models, or make products that can operate with either an ODS or a substitute. For example, a manufacturer of supermarket refrigeration equipment currently produces new equipment designed to operate with HFC blends or other non-ODS refrigerants and may assist its customers with retrofitting or replacing parts of existing supermarket systems using HCFC-22 or HCFC blends. Future rulemaking could address the numerous questions raised by these more complex situations--e.g., has a manufacturer switched to an HFC if one of multiple facilities is using an HFC or if one of multiple product lines is using an HFC? Alternatively, can the same manufacturer be considered to not yet have switched to HFCs if it still uses ODS in some of its facilities or product lines? Because the rules as written do not resolve these issues, there is no practical way to address these questions at this time. EPA recognizes that the court vacated the 2015 Rule ``to the extent that'' it requires manufacturers to replace HFCs. Based on its expertise in administering the SNAP regulations, and its understanding of the 2015 Rule, EPA concludes that the vacatur cannot be implemented by treating specific language in the HFC listings as struck by the court. Rather, the listing of HFC's as unacceptable, or acceptable subject to use restrictions, is the means by which the 2015 Rule ``require[d] manufacturers to replace HFCs with a substitute substance.'' Vacating the 2015 Rule ``to the extent'' that it imposed that requirement means vacating the listings. To apply the court's holding otherwise would be to drastically rewrite the 2015 Rule, and EPA believes that it would not be appropriate to undertake such a rewrite without undergoing notice and comment rulemaking. As explained above, those entities that have historically been regulated under the SNAP program are uncertain about what the court's decision means and which actions remain subject to regulation and which do not; the agency cannot remain silent on the implications of the court's vacatur until such time as the agency can complete a notice-and-comment rulemaking because of the considerable confusion and need for certainty that currently exist. Each HFC listing, as a unit, ``requires manufacturers to replace HFCs with a substitute substance.'' EPA therefore will implement the vacatur as affecting each HFC listing change in its entirety pending rulemaking to address the remand. Thus, EPA will not apply the HFC use restrictions or unacceptability listings in the 2015 Rule for any purpose prior to completion of rulemaking. Although EPA will implement the court's vacatur by treating it as striking the HFC listing changes in the 2015 Rule in their entirety, EPA recognizes that the court rejected the arbitrary and capricious challenges to the HFC listing changes. On remand, EPA intends to consider the appropriate way to address HFC listings under the SNAP program in light of the court's opinion. The 2015 Rule also contains HCFC listings that were not challenged by the Petitioners and that were not addressed by the court in Mexichem. Because those provisions were not challenged and were not addressed by the court, and because those listing decisions are severable from the HFC listings, we are choosing in the near term to continue upholding these provisions as remaining in effect. Each of the HCFC listings is a distinct unit, just as each of the HFC listings is a distinct unit. Indeed, the severability of the specific listings from each other contrasts with the non-severability of the particular effects of the rule on manufacturers singled out by the court in the narrower phrasing of its holding--another reason why EPA believes that footnote 1 of the opinion extends that holding to all users, in keeping with the structure of the regulations. C. What are EPA's plans for a rulemaking to address the court's remand? In Mexichem Fluor v. EPA, the court remanded the 2015 Rule to the Agency for further proceedings. While in this document EPA provides guidance on the effect of the vacatur on the 2015 Rule to address the immediate uncertainty, the larger implications of the court's opinion remanding the rule to the agency require further consideration. To address the court's remand, EPA will move forward with a notice-and- comment rulemaking and will seek input from interested stakeholders prior to developing a proposed rule. The court's interpretation of CAA section 612 raises potentially complex and difficult implementation questions for the SNAP program. EPA may consider the following as it prepares to undertake notice-and- comment rulemaking:On remand, whether EPA should revisit specific provisions of the 1994 Framework Rule, such as those noted below, to establish distinctions between users still using ODS and those who have already replaced ODS: [cir] The regulatory prohibitions (40 CFR 82.174) on use and introduction into interstate commerce [cir] the notification requirements in the applicability section (40 CFR 82.176) [cir] specific definitions, for example, the definitions of ``substitute'' and ``use'' (40 CFR 82.172). The current definition of ``substitute'' is ``. . . any chemical, product substitute, or alternative manufacturing process, whether existing or new, intended for use as a replacement for a class I or II compound.'' The current definition of ``use'' is ``. . . any use of a substitute for a Class I or Class II ozone-depleting compound, including but not limited to use in a manufacturing process or product, in consumption by the end-user, or in intermediate uses, such as formulation or packaging for other subsequent uses.'' Whether EPA should revisit its practice of listing substitutes as acceptable subject to use conditions. Such listings allow the substitutes to be used only if certain conditions are met to ensure risks to human health and the environment are not significantly greater than for other available substitutes. For example, EPA has established use conditions for certain refrigerants to address flammability concerns across the same refrigeration end-uses. If use conditions would only apply to users switching from an ODS, EPA may consider whether to continue to list substitutes as acceptable subject to use conditions, given that some users would not be required to abide by the use conditions. Whether EPA should distinguish between product manufacturers and other users, and if so, how EPA should address ambiguity about who is the manufacturer of certain products, such as those that are field-assembled or field-charged. Whether EPA should revisit the regulations' applicability to certain end users. Historically, the SNAP program has applied to all users within an end-use, whether a product manufacturer, a servicing technician, or an end user of [[Page 18436]] a substitute. For many end-uses, the end users have been able to rely on product manufacturers' compliance with the SNAP listings. EPA may consider how it should address the heavier burden that might fall on end users, who in some cases may be less familiar with EPA's regulations, in cases where product manufacturers may be making some products that an end user still using an ODS may not be able to purchase and use. EPA may also consider whether that heavier burden means that EPA should not apply the regulations to those end users. Whether EPA should clarify when the replacement of an ODS occurs: e.g., on a facility-by-facility basis, or on a product-by- product basis. EPA may also consider whether to propose recordkeeping and reporting requirements to document when a user has transitioned to using a non-ODS. This list of considerations is not intended to be exhaustive, but rather provides an indication of the areas of initial thinking. The court also mentioned other possible approaches to regulation that the Agency could consider on remand. These include whether EPA may be able to use ``retroactive disapproval'' to revise an earlier determination where faced with new developments or in light of reconsideration of the relevant facts. In addition, the court mentioned other authorities EPA could consider to regulate substitutes for class I and class II ODS, such as the Toxic Substances Control Act (TSCA) and a number of CAA authorities, including the National Ambient Air Quality Standards (NAAQS) program, the Hazardous Air Pollutants (HAP) program, the Prevention of Significant Deterioration (PSD) program, and emission standards for motor vehicles. EPA would be interested in any thoughts stakeholders may have on the viability and desirability of these approaches. EPA appreciates there is interest from a wide variety of stakeholders in the development of a rule to address the court's decision on remand. Therefore, as an initial step, and as provided in more detail in the section below, EPA is providing notice of a stakeholder meeting. The purpose of sharing the Agency's preliminary considerations at this time is to provide a more specific roadmap to facilitate and focus the further input of our individual stakeholders. By laying out considerations raised by the court remand and its near- term plans, EPA seeks to work with stakeholders to continue to gather and exchange information that can assist the Agency as it begins to develop a proposed rule to address the court's remand of the 2015 Rule. D. What are EPA's plans for a stakeholder meeting? As indicated in the above DATES section, EPA will hold a stakeholder meeting on Friday, May 4, 2018, in Washington, DC from 9:30 a.m. to 12:30 p.m. to allow interested parties to provide input on what the Agency should consider as it begins developing a proposed rule in response to the court's remand of the 2015 Rule. Please follow the instructions provided to RSVP for this meeting as specified above in the DATES section of this document. Additional information concerning this stakeholder meeting will be available on the EPA website: https://www.epa.gov/snap. Dated: April 13, 2018. E. Scott Pruitt, Administrator. [FR Doc. 2018-08310 Filed 4-26-18; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations 18431
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Agency (EPA). Agency prepares to engage in acceptable subject to narrowed use
ACTION: Notification of guidance and rulemaking to address the court’s limits (i.e., acceptable only for limited
stakeholder meeting. remand of the 2015 Rule. The meeting uses for a specified period of time). The
will be held at 9:30 a.m. to 12:30 p.m. 2015 Rule also changed the listings for
SUMMARY: The U.S. Environmental ET on Friday, May 4, 2018 at EPA, certain hydrochlorofluorocarbons
Protection Agency (EPA) is providing William Jefferson Clinton East Building, (HCFCs) being phased out of production
this document to dispel confusion and Room 1153, 1201 Constitution Avenue under the Montreal Protocol on
provide regulatory certainty for NW, Washington, DC 20004. Substances that Deplete the Ozone
stakeholders affected by EPA’s Information concerning this meeting Layer (Montreal Protocol) and section
Significant New Alternatives Policy will be available on the EPA website: 605 of the Clean Air Act (CAA). The
program final rule issued on July 20, https://www.epa.gov/snap. Please RSVP court vacated the 2015 Rule ‘‘to the
2015, and the decision of the Court of for this meeting by contacting Chenise extent it requires manufacturers to
Appeals for the District of Columbia Farquharson at farquharson.chenise@ replace HFCs with a substitute
Circuit in the case of Mexichem Fluor, substance’’ and remanded the rule to
epa.gov by April 27, 2018.
Inc. v. EPA. The 2015 Rule changed the EPA for further proceedings.
listings for certain hydrofluorocarbons FOR FURTHER INFORMATION CONTACT: Through this document, EPA is taking
in various end-uses in the aerosols, Chenise Farquharson, Stratospheric three actions in response to the court’s
refrigeration and air conditioning, and Protection Division, (6205T), decision: (1) Providing guidance to
foam blowing sectors. It also changed Environmental Protection Agency, 1200 stakeholders on how EPA will
the listings for certain Pennsylvania Ave. NW, Washington, DC implement the court’s partial vacatur of
jstallworth on DSKBBY8HB2PROD with RULES
hydrochlorofluorocarbons being phased 20460; telephone number: (202) 564– the 2015 Rule in the near term, pending
out of production under the Montreal 7768; email address: a rulemaking; (2) providing information
Protocol on Substances that Deplete the farquharson.chenise@epa.gov. on the Agency’s plan to address the
Ozone Layer and section 605 of the court’s remand of the 2015 Rule through
Clean Air Act. The court vacated the SUPPLEMENTARY INFORMATION: rulemaking; and (3) providing notice of
2015 Rule ‘‘to the extent it requires a stakeholder meeting to help inform the
manufacturers to replace HFCs with a Agency as it begins developing a
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![Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations 18433
court’s vacatur in Mexichem, it is not after the effective date of any restrictions or unacceptability listings in
intended to represent a definitive or rulemaking adding such substitute to the 2015 Rule for any purpose prior to
final statement by the Agency on the the list of unacceptable substitutes.’’ 40 completion of rulemaking. EPA’s
court’s decision as a whole. In fact, EPA CFR 82.174. The 1994 Framework Rule implementation of the court’s vacatur
anticipates that its actions in response defined ‘‘use’’ broadly as ‘‘any use of a pending rulemaking is intended to
to the decision will be informed by substitute for a Class 1 or Class II ozone- dispel confusion and provide regulatory
input from stakeholders and the notice- depleting compound, including but not certainty in the near term for users in
and-comment rulemaking process that limited to use in a manufacturing the refrigeration and air conditioning,
will address the court’s remand. process or product, in consumption by foam blowing and aerosol end-uses
the end-user, or in intermediate uses, affected by the HFC listing changes in
A. Background such as formulation or packaging for the 2015 Rule.
The SNAP program implements other subsequent uses.’’ 40 CFR 82.172. Two chemical suppliers, Arkema and
section 612 of the Clean Air Act. Several Thus, for example, use encompasses not Mexichem (Petitioners), challenged the
major provisions of section 612 are: only the manufacture of equipment with portion of the 2015 Rule that removed
a substitute, such as the manufacture of the listings of certain HFCs as
1. Rulemaking
a foam-blowing system; it also includes acceptable, or acceptable subject to use
Section 612(c) requires EPA to the use of that foam system to blow the conditions in certain end-uses, and
promulgate rules making it unlawful to foam into another product, such as foam listed those HFCs as unacceptable, or
replace any class I (chlorofluorocarbon, cushions, or to blow the foam as acceptable subject to narrowed use
halon, carbon tetrachloride, methyl insulation in a building. EPA issued its limits, in the same end-uses. The
chloroform, methyl bromide, initial listing decisions as part of the Petitioners raised two central
hydrobromofluorocarbon, and 1994 Framework Rule and has arguments. First, they claimed that EPA
chlorobromomethane) or class II (HCFC) continued to list substitutes. The lists of did not have the authority to require
substance with any substitute that the fully acceptable substitutes are not that users of HFCs switch to another
Administrator determines may present included in the CFR but instead are alternative. Second, they challenged the
adverse effects to human health or the available at https://www.epa.gov/snap/ various listing decisions as ‘‘arbitrary
environment where the Administrator snap-substitutes-sector. All other listing and capricious.’’ The court rejected the
has identified an alternative that (1) decisions (i.e., unacceptable or with Petitioners’ arbitrary and capricious
reduces the overall risk to human health restrictions on use) are contained in challenges but ruled that EPA did not
and the environment and (2) is currently tables provided in appendices to EPA’s have authority to ‘‘require
or potentially available. SNAP regulations (40 CFR part 82 manufacturers to replace HFCs with a
subpart G). There are separate tables for substitute substance.’’ Id. at 464. The
2. Listing of Unacceptable/Acceptable
each of the major industrial use sectors, court determined that the word
Substitutes
including adhesives, coatings and inks; ‘‘replace’’ as used in CAA section 612(c)
Section 612(c) requires EPA to aerosols; cleaning solvents; fire applies only to the immediate
publish a list of the substitutes that it suppression and explosion protection; replacement of an ODS, stating that
finds to be unacceptable for specific foam blowing agents; refrigeration and ‘‘manufacturers ‘replace’ an ozone-
uses and to publish a corresponding list air conditioning; and sterilants, as well depleting substance when they
of acceptable substitutes for specific as separate tables for each type of transition to making the same product
uses. listing: acceptable with use conditions, with a substitute substance. After that
acceptable subject to narrowed use transition has occurred, the replacement
3. Petition Process
limits or unacceptable. has been effectuated, and the
Section 612(d) grants the right to any The 1994 Framework Rule, as
person to petition EPA to add a manufacturer no longer makes a product
implemented by EPA, has applied to all
substance to, or delete a substance from, that uses an ozone-depleting
users (e.g., product manufacturers,
the lists published in accordance with substance.’’ Id. at 459. Although the
intermediate users, end-users) within a
section 612(c). court’s decision mainly discusses
regulated end-use without making
manufacturers, footnote 1 of the court’s
4. 90-Day Notification distinctions between product
opinion indicates that ‘‘[the court’s]
manufacturers and other users or
Section 612(e) directs EPA to require between those who were using ozone- interpretation of Section 612 applies to
any person who produces a chemical depleting substances (ODS) at the time any regulated parties that must replace
substitute for a class I substance to a substitute was listed as unacceptable ozone-depleting substances within the
notify the Agency not less than 90 days and those who were not. The 2015 Rule, timelines specified by Title VI.’’ 1 Id. at
before new or existing chemicals are like all other actions EPA has taken 457.
introduced into interstate commerce for implementing the 1994 Framework Rule The language of the vacatur refers to
significant new uses as substitutes for a over the last quarter-century, also made ‘‘manufacturers’’ and to the replacement
class I substance. The producer must no such distinctions. It simply changed of HFCs. The opinion appears to use the
also provide the Agency with the the listings for various previously listed term ‘‘manufacturers’’ in the sense of
producer’s unpublished health and substitutes. ‘‘product manufacturers.’’ See Id. at
safety studies on such substitutes. 460.2 However, nothing in the
In 1994, EPA published a rule setting B. How is EPA implementing the court’s
forth the framework for administering partial vacatur of the 2015 Rule in the 1 Section 612(c) provides that ‘‘the Administrator
jstallworth on DSKBBY8HB2PROD with RULES
near term, pending rulemaking? shall promulgate rules under this section providing
the SNAP program (‘‘1994 Framework that it shall be unlawful to replace any class I or
Rule’’) (59 FR 13044; March 18, 1994). In Mexichem Fluor v. EPA, the court class II substance with any substitute substance’’
Among other things, that rule ‘‘vacate[d] the 2015 Rule to the extent it where the Administrator determines that a safer
established prohibitions on use of requires manufacturers to replace HFCs alternative is available.
2 While ‘‘product’’ is not defined in the SNAP
substitutes inconsistent with the SNAP with a substitute substance.’’ 866 F.3d at regulations, other portions of EPA’s stratospheric
listings, including a prohibition stating 464. For the reasons explained below, protection regulations distinguish between
that ‘‘[n]o person may use a substitute EPA will not apply the HFC use Continued
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![18434 Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations
regulatory language promulgated as part space- and aeronautics-related completion of rulemaking would ignore
of the challenged 2015 Rule draws a applications’’ and the time period for the practical realities faced by the
distinction between product which use remains acceptable (e.g., business community.
manufacturers and other users of ‘‘Acceptable from January 1, 2017, until In addition, attempting to draw the
substitutes.3 Nor does the 2015 Rule January 1, 2022’’). Thus, for each listing distinctions made by the court would
draw a distinction between persons decision there is no language that could present practical difficulties for
using HFCs and those using an ODS. be understood as being removed or implementation in advance of
The regulatory text included in the 2015 struck out by the court so that some rulemaking. First, the SNAP regulations
Rule is comprised solely of tables listing portion of the listing decision would do not address what constitutes product
EPA’s decision on certain substitutes for remain in effect pending EPA’s action manufacture. EPA went through a full
specific end-uses. Similarly, the 1994 on remand. notice-and-comment rulemaking to
Framework Rule distinguishes neither While EPA could, on remand, rewrite address that issue with respect to
between product manufacturers and the individual listings to create sub- appliances for the purpose of
other users nor between someone using listings for different types of users—e.g., regulations implementing the HCFC
an HFC and someone using an ODS. For separating out manufacturers, or phaseout under section 605 of the Clean
each specified end-use, the 2015 Rule, separating out those still using ODS— Air Act. See, e.g., ‘‘Protection of
as issued, in conjunction with the 1994 such additions to the 2015 Rule would Stratospheric Ozone: Adjustments to the
Framework Rule, would prohibit any require notice-and-comment Allowance System for Controlling HCFC
user from using a substitute listed as rulemaking. This situation contrasts Production, Import, and Export,’’ 74 FR
unacceptable—or from using, without with those where a court decision 66439–66441 (Dec. 15, 2009). In that
adhering to narrowed use limits, a affects specific regulatory language, rulemaking, EPA recognized that while
substitute listed as acceptable subject to striking some of that language while some appliances are shipped fully
such limits—after the relevant date. leaving the remainder untouched. Here, assembled and charged, others are
Thus, the SNAP regulations as currently there is simply no regulatory language assembled or charged in the field. With
written do not provide the distinctions that can be parsed in that manner. Nor respect to the latter, there was ambiguity
that would be necessary to is waiting to address the court’s vacatur as to the point of manufacture and the
accommodate the letter of the court’s until the agency can complete notice- identity of the manufacturer. EPA
vacatur. The narrower language used by and-comment rulemaking a satisfactory provided a definition to resolve that
the court does not exist in either the solution. The court clearly intended to ambiguity in the context of those
2015 Rule or the 1994 Framework Rule; vacate the 2015 Rule to some ‘‘extent.’’ regulations. Without a clear definition
nor do the distinctions discussed above The mandate has issued; accordingly, of product manufacture in the SNAP
emerge when those two rules are read the court’s decision is now in effect. context, there may be considerable
together. In addition, EPA is aware that ambiguity about who is the
The regulatory tables, which are the regulated entities are experiencing ‘‘manufacturer’’ for certain products—
only regulatory text promulgated in the substantial confusion and uncertainty for example, supermarket refrigeration
2015 Rule, are comprised of individual regarding the meaning of the vacatur in systems—and resulting confusion about
listing decisions. Each listing of a a variety of specific situations. Since the the impacts of the court’s decision.
substitute is comprised of at least four court mandate issued, EPA has received Moreover, in footnote 1 of the
columns of information. The first a significant number of inquiries from decision, the court indicates that the
column lists the regulated end-use, such equipment manufacturers, refrigerant interpretation it adopts in the decision
as ‘‘Retail food refrigeration producers, and various other users. ‘‘applies to any regulated parties that
(supermarket systems) (new)’’ or ‘‘Rigid Some have asked general questions must replace ozone-depleting
Polyurethane [Foam]: Appliance.’’ The regarding the effect of the partial vacatur substances.’’ This appears to extend the
second column lists the substitute or of the 2015 Rule, while others have court’s holding to apply to any user
substitutes to which the listing decision asked more specific questions about subject to the HFC listing changes, and
applies. The third column identifies the compliance both for those end-uses for not simply manufacturers. 866 F.3d at
‘‘decision’’ (‘‘Unacceptable’’ or which the compliance dates have 457 (emphasis added). Implementing
‘‘Acceptable subject to narrowed use passed and for those for which there is the vacatur more narrowly in the near
limits’’) and also identifies the date on a future compliance date. For those end- term would not only raise practical
which the listing decision will apply. uses with future compliance dates, these implementation difficulties but likely
The final column provides ‘‘Further users are seeking guidance to help them would be inconsistent with the court’s
information.’’ Each listing of a substitute make plans for future operations; if language in footnote 1.
as acceptable subject to narrowed use these users of HFCs would not be able Second, neither the 1994 Framework
limits contains an additional column to continue such use, they may need to Rule nor the 2015 Rule addresses the
identifying the ‘‘Narrowed use limits.’’ take steps well in advance of the date by which a manufacturer must
This column identifies the limited uses compliance date, such as researching have switched to an HFC in order to
for which the substitute remains and developing revised foam avoid being subject to the 2015 Rule
acceptable for use (e.g., ‘‘military or formulations; retooling manufacturing listing decisions. Possible dates could
facilities; testing updated equipment or include the effective date of the 2015
‘‘products’’ and ‘‘substances.’’ See, e.g, the products to be certified to industry Rule; the applicability date of the
definition of ‘‘controlled substance’’ at 40 CFR 82.3; standards; and achieving compliance specific listing change; or the date on
the definitions of ‘‘product containing’’ and which the court’s mandate issued. This
with fire codes. Other stakeholders have
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‘‘manufactured with a controlled substance’’ at 40
CFR 82.106, expressed confusion in understanding lack of clarity could result in confusion
3 Under the 1994 Framework Rule, EPA defined how the partial vacatur affects particular about whether or not the listings in the
manufacturer as ‘‘any person engaged in the direct types of equipment that might fall under 2015 Rule apply to individual
manufacture of a substitute.’’ 40 CFR 82.172. SNAP multiple end-uses, such as a stand-alone manufacturers. Even if there were a
listing decisions, such as those at issue in the 2015
Rule, do not apply to manufacturers of the
commercial refrigerator with foam clear date that would govern, there are
substitute but rather to the subsequent use of that insulation. Deferring answers to currently no requirements for
substitute in a product or process or other use. stakeholder questions until the manufacturers to document the date of
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![Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations 18435
a change to an HFC; this lack of actions remain subject to regulation and stakeholders prior to developing a
documentation would hinder the which do not; the agency cannot remain proposed rule.
agency’s ability to implement the rule as silent on the implications of the court’s The court’s interpretation of CAA
envisioned in the court’s opinion, vacatur until such time as the agency section 612 raises potentially complex
because it would not know whether or can complete a notice-and-comment and difficult implementation questions
on what date manufacturers had made rulemaking because of the considerable for the SNAP program. EPA may
the switch. confusion and need for certainty that consider the following as it prepares to
Third, because neither the 1994 currently exist. Each HFC listing, as a undertake notice-and-comment
Framework Rule nor the 2015 Rule unit, ‘‘requires manufacturers to replace rulemaking:
creates a distinction between users HFCs with a substitute substance.’’ EPA • On remand, whether EPA should
using ODS and those using substitutes, therefore will implement the vacatur as revisit specific provisions of the 1994
neither rule addresses more complex affecting each HFC listing change in its Framework Rule, such as those noted
situations in which both types of entirety pending rulemaking to address below, to establish distinctions between
substances may be in use. Specifically, the remand. Thus, EPA will not apply users still using ODS and those who
many manufacturers own multiple the HFC use restrictions or have already replaced ODS:
facilities, have multiple production unacceptability listings in the 2015 Rule Æ The regulatory prohibitions (40
lines at a single facility, make multiple for any purpose prior to completion of CFR 82.174) on use and introduction
different products or product models, or rulemaking. Although EPA will into interstate commerce
make products that can operate with Æ the notification requirements in the
implement the court’s vacatur by
either an ODS or a substitute. For applicability section (40 CFR 82.176)
treating it as striking the HFC listing Æ specific definitions, for example,
example, a manufacturer of supermarket changes in the 2015 Rule in their
refrigeration equipment currently the definitions of ‘‘substitute’’ and
entirety, EPA recognizes that the court ‘‘use’’ (40 CFR 82.172). The current
produces new equipment designed to rejected the arbitrary and capricious
operate with HFC blends or other non- definition of ‘‘substitute’’ is ‘‘. . . any
challenges to the HFC listing changes. chemical, product substitute, or
ODS refrigerants and may assist its On remand, EPA intends to consider the
customers with retrofitting or replacing alternative manufacturing process,
appropriate way to address HFC listings whether existing or new, intended for
parts of existing supermarket systems under the SNAP program in light of the
using HCFC–22 or HCFC blends. Future use as a replacement for a class I or II
court’s opinion. compound.’’ The current definition of
rulemaking could address the numerous
The 2015 Rule also contains HCFC ‘‘use’’ is ‘‘. . . any use of a substitute for
questions raised by these more complex
listings that were not challenged by the a Class I or Class II ozone-depleting
situations—e.g., has a manufacturer
Petitioners and that were not addressed compound, including but not limited to
switched to an HFC if one of multiple
by the court in Mexichem. Because use in a manufacturing process or
facilities is using an HFC or if one of
those provisions were not challenged product, in consumption by the end-
multiple product lines is using an HFC?
Alternatively, can the same and were not addressed by the court, user, or in intermediate uses, such as
manufacturer be considered to not yet and because those listing decisions are formulation or packaging for other
have switched to HFCs if it still uses severable from the HFC listings, we are subsequent uses.’’
ODS in some of its facilities or product choosing in the near term to continue • Whether EPA should revisit its
lines? Because the rules as written do upholding these provisions as practice of listing substitutes as
not resolve these issues, there is no remaining in effect. Each of the HCFC acceptable subject to use conditions.
practical way to address these questions listings is a distinct unit, just as each of Such listings allow the substitutes to be
at this time. the HFC listings is a distinct unit. used only if certain conditions are met
EPA recognizes that the court vacated Indeed, the severability of the specific to ensure risks to human health and the
the 2015 Rule ‘‘to the extent that’’ it listings from each other contrasts with environment are not significantly
requires manufacturers to replace HFCs. the non-severability of the particular greater than for other available
Based on its expertise in administering effects of the rule on manufacturers substitutes. For example, EPA has
the SNAP regulations, and its singled out by the court in the narrower established use conditions for certain
understanding of the 2015 Rule, EPA phrasing of its holding—another reason refrigerants to address flammability
concludes that the vacatur cannot be why EPA believes that footnote 1 of the concerns across the same refrigeration
implemented by treating specific opinion extends that holding to all end-uses. If use conditions would only
language in the HFC listings as struck by users, in keeping with the structure of apply to users switching from an ODS,
the court. Rather, the listing of HFC’s as the regulations. EPA may consider whether to continue
unacceptable, or acceptable subject to C. What are EPA’s plans for a to list substitutes as acceptable subject
use restrictions, is the means by which rulemaking to address the court’s to use conditions, given that some users
the 2015 Rule ‘‘require[d] manufacturers remand? would not be required to abide by the
to replace HFCs with a substitute use conditions.
substance.’’ Vacating the 2015 Rule ‘‘to In Mexichem Fluor v. EPA, the court • Whether EPA should distinguish
the extent’’ that it imposed that remanded the 2015 Rule to the Agency between product manufacturers and
requirement means vacating the listings. for further proceedings. While in this other users, and if so, how EPA should
To apply the court’s holding otherwise document EPA provides guidance on address ambiguity about who is the
would be to drastically rewrite the 2015 the effect of the vacatur on the 2015 manufacturer of certain products, such
Rule, and EPA believes that it would not Rule to address the immediate as those that are field-assembled or
jstallworth on DSKBBY8HB2PROD with RULES
be appropriate to undertake such a uncertainty, the larger implications of field-charged.
rewrite without undergoing notice and the court’s opinion remanding the rule • Whether EPA should revisit the
comment rulemaking. As explained to the agency require further regulations’ applicability to certain end
above, those entities that have consideration. To address the court’s users. Historically, the SNAP program
historically been regulated under the remand, EPA will move forward with a has applied to all users within an end-
SNAP program are uncertain about what notice-and-comment rulemaking and use, whether a product manufacturer, a
the court’s decision means and which will seek input from interested servicing technician, or an end user of
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![18436 Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations
a substitute. For many end-uses, the end to address the court’s remand of the ENVIRONMENTAL PROTECTION
users have been able to rely on product 2015 Rule. AGENCY
manufacturers’ compliance with the
SNAP listings. EPA may consider how D. What are EPA’s plans for a 40 CFR Part 272
it should address the heavier burden stakeholder meeting?
[EPA–R02–RCRA–2018–0034; FRL–9974–
that might fall on end users, who in As indicated in the above DATES 06—Region 2]
some cases may be less familiar with
section, EPA will hold a stakeholder
EPA’s regulations, in cases where New York: Incorporation by Reference
meeting on Friday, May 4, 2018, in
product manufacturers may be making of State Hazardous Waste Management
some products that an end user still Washington, DC from 9:30 a.m. to 12:30
Program
using an ODS may not be able to p.m. to allow interested parties to
purchase and use. EPA may also provide input on what the Agency AGENCY: Environmental Protection
consider whether that heavier burden should consider as it begins developing Agency (EPA).
means that EPA should not apply the a proposed rule in response to the ACTION: Direct final rule.
regulations to those end users. court’s remand of the 2015 Rule. Please
• Whether EPA should clarify when follow the instructions provided to SUMMARY: The Solid Waste Disposal Act,
the replacement of an ODS occurs: e.g., as amended, commonly referred to as
RSVP for this meeting as specified
on a facility-by-facility basis, or on a the Resource Conservation and
above in the DATES section of this
product-by-product basis. EPA may also Recovery Act (RCRA), allows the
document. Additional information
consider whether to propose Environmental Protection Agency (EPA)
concerning this stakeholder meeting to authorize States to operate their
recordkeeping and reporting will be available on the EPA website:
requirements to document when a user hazardous waste management programs
https://www.epa.gov/snap. in lieu of the Federal program. EPA uses
has transitioned to using a non-ODS.
This list of considerations is not Dated: April 13, 2018. the regulations entitled ‘‘Approved State
intended to be exhaustive, but rather E. Scott Pruitt, Hazardous Waste Management
provides an indication of the areas of Administrator. Programs’’ to provide notice of the
initial thinking. The court also authorization status of State programs
[FR Doc. 2018–08310 Filed 4–26–18; 8:45 am]
mentioned other possible approaches to and to incorporate by reference those
BILLING CODE 6560–50–P
regulation that the Agency could provisions of the State regulations that
consider on remand. These include will be subject to EPA’s inspection and
whether EPA may be able to use enforcement. This rule does not
ENVIRONMENTAL PROTECTION incorporate by reference the New York
‘‘retroactive disapproval’’ to revise an AGENCY
earlier determination where faced with hazardous waste statutes. The rule
new developments or in light of codifies in the regulations the prior
40 CFR Part 86
reconsideration of the relevant facts. In approval of New York’s hazardous
addition, the court mentioned other Control of Emissions From New and waste management program and
authorities EPA could consider to In-Use Highway Vehicles and Engines incorporates by reference authorized
regulate substitutes for class I and class provisions of the State’s regulations.
II ODS, such as the Toxic Substances CFR Correction DATES: This regulation is effective June
Control Act (TSCA) and a number of 26, 2018, unless EPA receives adverse
CAA authorities, including the National ■ In Title 40 of the Code of Federal written comment on this regulation by
Ambient Air Quality Standards Regulations, Parts 82 to 86, revised as of the close of business May 29, 2018. If
(NAAQS) program, the Hazardous Air July 1, 2017, on page 439, in § 86.000– EPA receives such comments, it will
Pollutants (HAP) program, the 7, the introductory text is reinstated to publish a timely withdrawal of this
Prevention of Significant Deterioration read as follows: direct final rule in the Federal Register
(PSD) program, and emission standards informing the public that this rule will
for motor vehicles. EPA would be § 86.000–7 Maintenance of records; not take effect. The Director of the
interested in any thoughts stakeholders submittal of information; right of entry. Federal Register approves this
may have on the viability and Section 86.000–7 includes text that incorporation by reference as of June 26,
desirability of these approaches. specifies requirements that differ from 2018 in accordance with 5 U.S.C. 552(a)
EPA appreciates there is interest from § 86.091–7 or § 86.094–7. Where a and 1 CFR part 51.
a wide variety of stakeholders in the ADDRESSES: Submit your comments,
paragraph in § 86.091–7 or § 86.094–7 is
development of a rule to address the identified by Docket ID No. EPA–R02–
court’s decision on remand. Therefore, identical and applicable to § 86.000–7,
this may be indicated by specifying the RCRA–2018–0034, by one of the
as an initial step, and as provided in following methods:
more detail in the section below, EPA is corresponding paragraph and the
statement ‘‘[Reserved]. For guidance see • Federal eRulemaking Portal: http://
providing notice of a stakeholder www.regulations.gov. Follow the on-line
meeting. The purpose of sharing the § 86.091–7.’’ or ‘‘[Reserved]. For
instructions for submitting comments.
Agency’s preliminary considerations at guidance see § 86.094–7.’’ • Email: azzam.nidal@epa.gov.
this time is to provide a more specific * * * * * • Fax: (212) 637–4437.
roadmap to facilitate and focus the [FR Doc. 2018–09058 Filed 4–26–18; 8:45 am] • Mail: Send written comments to
further input of our individual BILLING CODE 1301–00–D Nidal Azzam, Base Program
jstallworth on DSKBBY8HB2PROD with RULES
stakeholders. By laying out Management Section Chief, Hazardous
considerations raised by the court Waste Programs Branch, Clean Air and
remand and its near-term plans, EPA Sustainability Division, EPA, Region 2,
seeks to work with stakeholders to 290 Broadway, 22nd Floor, New York,
continue to gather and exchange NY 10007.
information that can assist the Agency • Hand Delivery or Courier: Deliver
as it begins to develop a proposed rule your comments to Nidal Azzam, Base
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Document Created: 2018-04-27 01:45:27
Document Modified: 2018-04-27 01:45:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Notification of guidance and stakeholder meeting. | |
| Dates | EPA will hold a stakeholder meeting on May 4, 2018 to enable stakeholders to provide input as the Agency prepares to engage in | |
| Contact | Chenise Farquharson, Stratospheric Protection Division, (6205T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) | |
| FR Citation | 83 FR 18431 |
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