Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58269

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 29, 

2004. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Reporting 

and recordkeeping requirements.

Dated: September 22, 2004. 

Kerrigan G. Clough, 

Acting Regional Administrator, Region VIII.

■ 40 CFR part 52 is amended to read as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart G—Colorado

■ 2. Section 52.349 is amended by 

adding paragraph (k) to read as follows:

§ 52.349 Control strategy: Carbon 

monoxide.

* * * * *

(k) Revisions to the Colorado State 

Implementation Plan, carbon monoxide 

NAAQS, revised maintenance plan for 

Longmont entitled ‘‘Revised Carbon 

Monoxide Maintenance Plan for the 

Longmont Attainment/Maintenance 

Area’’, as adopted by the Colorado Air 

Quality Control Commission on 

December 18, 2003, State effective 

March 1, 2004, and submitted by the 

Governor on April 12, 2004.

[FR Doc. 04–21926 Filed 9–29–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[OAR–2003–0228, FRL–7821–6] 

RIN 2060–AG12 

Protection of Stratospheric Ozone; 

Listing of Substitutes in the Foam 

Sector

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today the Environmental 

Protection Agency (EPA) is taking final 

action to change the listing of HCFC–

141b from acceptable to unacceptable 

for use as a foam blowing agent under 

the Significant New Alternatives Policy 

(SNAP) Program under section 612 of 

the Clean Air Act. The SNAP program 

reviews alternatives to Class I and Class 

II ozone depleting substances and 

approves use of alternatives which 

reduce the overall risk to public health 

and the environment. On July 11, 2000 

EPA issued a proposed rule concerning 

the use of several 

hydrochlorofluorocarbons (HCFCs) in 

foam blowing applications. On July 22, 

2002, EPA took final action with respect 

to a number of the HCFCs, but deferred 

its decision on changing the list for 

HCFC–141b in foam blowing 

applications due to the pending 

production and import ban of HCFC–

141b (effective as of January 1, 2003) 

and incomplete information regarding 

the technical viability of alternatives. 

Since the publication of that final rule, 

EPA received information from outside 

parties through letters, meetings, and 

the HCFC–141b Exemption Allowance 

Petition process (68 FR 2819) that 

addresses the use of HCFC–141b in 

foam blowing applications. On March 

10, 2004, EPA issued a Notice of Data 

Availability (NODA) which contained 

the new information mentioned above 

and sought comment on its 

completeness and accuracy. Today, 

based on the information contained in 

the NODA and the comments received 

on the NODA, EPA is making its final 

decision to change the listing for use of 

HCFC–141b as a foam blowing agent 

from acceptable to unacceptable.

DATES: This rule is effective on 

November 29, 2004.

ADDRESSES: EPA has established an 

official public docket for this action 

under Docket ID No. OAR–2003–0228 

(continuation of Docket A–2000–18). All 

documents in the docket are listed in 

the EDOCKET index at http://

www.epa.gov/edocket. Although listed 

in the index, confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute 

is not publically available. Certain other 

material, such as copyrighted material, 

is also listed in the index but not placed 

on the Internet. This material will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available electronically in 

EDOCKET. The official public docket is 

the collection of materials that is 

available for public viewing at the Air 

and Radiation Docket in the EPA Docket 

Center, (EPA/DC) EPA West, Room 

B102, 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 

Reading Room is (202) 566–1742, and 

the telephone number for the Air and 

Radiation Docket is (202) 566–1742.

FOR FURTHER INFORMATION CONTACT:

Suzie Kocchi, Stratospheric Protection 

Division, Office of Atmospheric 

Programs (6205J), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (202) 343–9387; fax 

number: (202) 343–2363; e-mail address: 

kocchi.suzanne@epa.gov. The published 

versions of notices and rulemakings 

under the SNAP program are available 

on EPA’s Stratospheric Ozone Web site 

at http://www.epa.gov/ozone/snap/regs.

SUPPLEMENTARY INFORMATION:

Table of Contents: This action is divided 

into seven sections: 

I. Regulated Entities 

II. Section 612 Program 

A. Statutory Requirements 

B. Regulatory History 

C. Listing Decisions 

III. Listing Decision on HCFC–141b in the 

Foam Sector 

A. Background 

B. Decision 

IV. Response to Comments 

V. Summary 

VI. Statutory and Executive Order Reviews 

VII. Additional Information

I. Regulated Entities 

Today’s rule regulates the use of 

HCFC–141b as a foam blowing agent 

used in the manufacture of rigid 

polyurethane/polyisocyanurate foam 

products. Businesses that currently 

might be using HCFC–141b, or might 

want to use it in the future, include:

—Businesses that manufacture 

polyurethane/polyisocyanurate foam 

systems. 

—Businesses that use polyurethane/

polyisocyanurate systems to apply 

insulation to buildings, roofs, pipes, 

etc.

58270 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

Table 1 lists potentially regulated 

entities:

TABLE 1.—POTENTIALLY REGULATED ENTITIES, BY NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS) 

CODE OR SUBSECTOR

Category NAICS code 

or subsector Description of regulated entities 

Industry .................... 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. 

This table is not intended to be 

exhaustive, but rather a guide regarding 

entities likely to be regulated by this 

action. If you have any questions about 

whether this action applies to a 

particular entity, consult the person 

listed in the preceding section, FOR

FURTHER INFORMATION. 

II. Section 612 Program 

A. Statutory Requirements 

Section 612 of the Clean Air Act 

(CAA) requires EPA to develop a 

program for evaluating alternatives to 

ozone depleting substances (ODS). EPA 

refers to this program as the Significant 

New Alternatives Policy (SNAP) 

program. The major provisions of 

section 612 are: 

• 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, and 

hydrobromofluorocarbon) or class II 

(hydrochlorofluorocarbon) 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. 

• Listing of Unacceptable/Acceptable 

Substitutes—Section 612(c) also 

requires EPA to publish a list of the 

substitutes unacceptable for specific 

uses. EPA must publish a corresponding 

list of acceptable alternatives for 

specific uses. 

• Petition Process—Section 612(d) 

grants the right to any person to petition 

EPA to add a substitute to or delete a 

substitute from the lists published in 

accordance with section 612(c). The 

Agency has 90 days to grant or deny a 

petition. When the Agency grants a 

petition, EPA must publish the revised 

lists within an additional six months. 

• 90-day Notification—Section 612(e) 

directs EPA to require any person who 

produces a chemical substitute for a 

class I substance to notify EPA 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 EPA with 

the producer’s health and safety studies 

on such substitutes. 

• Outreach—Section 612(b)(1) states 

that the Administrator shall seek to 

maximize the use of federal research 

facilities and resources to assist users of 

class I and II substances in identifying 

and developing alternatives to the use of 

such substances in key commercial 

applications. 

• Clearinghouse—Section 612(b)(4) 

requires the Agency to set up a public 

clearinghouse of alternative chemicals, 

product substitutes, and alternative 

manufacturing processes that are 

available for products and 

manufacturing processes which use 

class I and II substances.

B. Regulatory History 

On March 18, 1994, EPA published a 

rule (59 FR 13044) which described the 

process for administering the SNAP 

program and issued EPA’s first 

acceptability lists for substitutes in the 

major industrial use sectors. These 

sectors include: Refrigeration and air 

conditioning, foam manufacturing, 

solvents cleaning, fire suppression and 

explosion protection, sterilants; 

aerosols, adhesives, coatings and inks; 

and tobacco expansion. These sectors 

comprise the principal industrial sectors 

that historically consumed large 

volumes of ozone-depleting compounds. 

EPA defines a ‘‘substitute’’ as any 

chemical, product substitute, or 

alternative manufacturing process, 

whether existing or new, that could 

replace a class I or class II substance (40 

CFR 82.172). Anyone who produces a 

substitute must provide EPA with 

health and safety studies on the 

substitute at least 90 days before 

introducing it into interstate commerce 

for significant new use as an alternative 

(40 CFR 82.174(a)). This requirement 

applies to chemical manufacturers, but 

may include importers, formulators, or 

end-users when they are responsible for 

introducing a substitute into commerce. 

C. Listing Decisions 

Under section 612, EPA has 

considerable discretion in the risk 

management decisions it can make 

under the SNAP program. In the SNAP 

rule, the Agency identified four possible 

decision categories: acceptable; 

acceptable subject to use conditions; 

acceptable subject to narrowed use 

limits; and unacceptable (40 CFR 

82.180(b)). Fully acceptable substitutes, 

i.e., those with no restrictions, can be 

used for all applications within the 

relevant sector end-use. 

After reviewing a substitute, EPA may 

make a determination that a substitute 

is acceptable only if certain conditions 

of use are met to minimize risk to 

human health and the environment. 

Such substitutes are described as 

‘‘acceptable subject to use conditions.’’

Even though EPA can restrict the use 

of a substitute based on the potential for 

adverse effects, it may be necessary to 

permit a narrowed range of use within 

a sector end-use because of the lack of 

alternatives for specialized applications. 

Users intending to adopt a substitute 

acceptable with narrowed use limits 

must first ascertain that other acceptable 

alternatives are not technically feasible. 

Companies must document the results 

of their evaluation, and retain the 

results on file for the purpose of 

demonstrating compliance. This 

documentation must include 

descriptions of substitutes examined 

and rejected, processes or products in 

which the substitute is needed, reason 

for rejection of other alternatives, e.g., 

performance, technical or safety 

standards, and the anticipated date 

other substitutes will be available and 

projected time for switching to other 

available substitutes. 

It is a violation of the CAA and EPA’s 

SNAP regulations to replace an ODS 

with a substitute listed as unacceptable 

or to use of substitute in contravention 

of the limits set by a use condition or 

the narrowed use limits (40 CFR 

82.174). 

EPA does not believe that notice and 

comment rulemaking procedures are 

required to list alternatives as 

acceptable with no restrictions. Such 

listings do not impose any sanction, nor 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58271

1The phaseout schedule was established on 

December 10, 1993 (58 FR 65018) as authorized 

under section 606 of the Clean Air Act.

2These listings are published in the following 

Federal Register notices: 61 FR 47012, 62FR 10700, 

62 FR 30275, 63 FR 9151, 64 FR 30410, 64 FR 

68039, 65 FR 19327, 65 FR 37900, 65 FR 78977 and 

68 FR 50533. 3Within the context of this rule, the word 

alternative refers to a technically viable SNAP 

approved alternative that presents a lower overall 

risk to human health and the environment.

do they remove any prior license to use 

a substitute. Consequently, EPA adds 

substitutes to the list of acceptable 

alternatives without first requesting 

comment on new listings (59 FR 13044). 

Updates to the acceptable lists are 

published as separate Notices of 

Acceptability in the Federal Register. 

As described in the original March 18, 

1994 rule for the SNAP program (59 FR 

13044), EPA believes that notice-andcomment rulemaking is required to 

place any alternative on the list of 

prohibited substitutes, to list a 

substitute as acceptable only under 

certain use conditions or narrowed use 

limits, or to remove an alternative from 

either the list of prohibited or 

acceptable substitutes. In this final rule, 

EPA is revising its determination 

regarding the acceptability of HCFC–

141b as a substitute in the foams 

blowing sector. Today’s rule finalizes 

and incorporates decisions that were 

proposed on July 11, 2000 at 65 FR 

42653 (referred to hereinafter as ‘‘the 

proposal’’). The section below presents 

a detailed discussion of the 

determination that is made final in 

today’s Final Rule. 

III. Listing Decision on HCFC–141b in 

the Foam Sector 

A. Background 

A major goal of the SNAP program is 

to facilitate the transition away from 

ODS. In 1994, EPA listed several HCFCs 

as acceptable replacements for CFCs 

because the Agency believed that 

HCFCs provided a temporary bridge to 

alternatives that do not deplete 

stratospheric ozone (‘‘ozone-friendly’’). 

At that time, EPA believed that HCFCs 

were necessary transitional alternatives 

to CFC blowing agents in thermal 

insulating foam (59 FR 13083). As a 

result, HCFC–141b became one of the 

most common foam blowing agents in 

place of CFC–11. Pursuant to the CAA 

and the Montreal Protocol on 

Substances that Deplete the Ozone 

Layer HCFC–141b was phased out of 

production and import on January 1, 

2003.1 Since the time EPA initially 

listed HCFC–141b as acceptable in 

certain foam blowing uses, the Agency 

has listed several other non-ODS 

alternative blowing agents, including 

hydrofluorocarbons (HFCs), 

hydrocarbons, carbon dioxide, and other 

compounds as acceptable substitutes in 

foam blowing.2 As of 2003, the vast 

majority of the foam industry has 

implemented alternatives other than 

HCFC–141b.3 Finished products 

containing these alternatives are 

commercially available today. Spray 

foam is the only significant foam end 

use that has not completed the 

transition away from ODS. However, 

some spray foam companies have 

implemented non-ODS alternatives and 

are marketing foam systems containing 

non-ODS alternatives today. Others 

have identified non-ODS alternatives, 

overcome technical constraints and are 

working on the final implementation of 

non-ODS alternatives, such as acquiring 

final building code approvals before 

offering foam systems in the market by 

the end of 2004.

The spray foam sector operates 

differently than many other end users 

regulated under SNAP. Rather than the 

end user directly buying and using an 

alternative, the alternative is first 

processed by a formulator. The 

formulators purchase raw materials, 

including the blowing agent (e.g. HCFC–

141b), isocyanates, surfactants, fire 

retardants, etc. from suppliers and blend 

the materials into a spray foam system. 

Because the re-formulating and testing 

is done by the formulators, they are 

relied upon for much of the technical 

expertise and support provided to the 

ultimate end user—on-site contractors. 

The contractors purchase these systems 

from the formulators in order to produce 

the actual foam product (e.g., roof or 

wall insulation). Thus, in the spray 

foam sector, the formulators are 

responsible for implementing 

alternatives to HCFC–141b and 

providing the contractors with systems 

that produce foam meeting the 

necessary technical and code 

requirements. However, both the 

formulators and contractors are subject 

to SNAP regulations because both use 

the blowing agent (e.g. HCFC–141b). In 

the former case this entails blending the 

blowing agent in a foam formulation 

and in the latter case this involves 

producing the foam with aid of the 

blowing agent. 

On July 11, 2000, EPA published a 

proposal that addressed the use of 

various HCFCs in foam end-uses (65 FR 

42653). Part of that proposed rule was 

a proposal to list HCFC–141b as 

unacceptable in all foam end-uses upon 

finalization of the rule, with existing 

users allowed to continue use (i.e., 

grandfathered) until January 1, 2005. 

EPA believed that this time period was 

sufficient for these end-users to 

transition to alternative foam blowing 

agents, considering the production 

phaseout of HCFC–141b on January 1, 

2003. The Agency allowed 60 days for 

public comment and received 45 

responses to the proposal by the close 

of the comment period (September 11, 

2000). EPA received comments from 

chemical manufacturers, appliance 

manufacturers, spray foam 

manufacturers, associations, and others. 

Copies of the comments can be obtained 

through the Air Docket by referencing 

A–2000–18, IV–D–1 through 45 (see

ADDRESSES section above for docket 

contact information). Specifically, the 

comments to the proposal on HCFC–

141b detailed issues surrounding the 

technical viability and availability of 

non-ODS alternatives in the spray foam 

sector. On July 22, 2002, EPA took final 

action on other aspects of the July 11, 

2000 proposed rule. In response to the 

comments regarding the technical 

viability and availability of alternatives 

in the spray foam sector, EPA deferred 

final action on the proposal to list 

HCFC–141b as unacceptable in order to 

monitor the progress of the spray foam 

sector in implementing technically 

viable alternatives (67 FR 47703).

Since EPA’s deferral on the decision 

to find the use HCFC–141b in foam 

blowing applications unacceptable, the 

Agency has undertaken a number of 

initiatives to address the concerns of 

spray foam formulators that non-ODS 

alternatives were not technically and 

economically viable. There are 

approximately 15–20 companies in the 

U.S. that formulate spray foam for 

thousands of customers, including 

roofing contractors and others. Several 

of these formulators are larger 

businesses, but many are small 

businesses. In comments on the SNAP 

proposal and on a separate but related 

rulemaking (the HCFC Allowance 

Allocation proposal, July 20, 2001, 66 

FR 38063), some small businesses that 

used HCFC–141b requested an industry 

wide exemption from the HCFC–141b 

production phaseout of January 1, 2003 

(the phaseout date established in 1993). 

Based on their view of the technical 

viability and availability of alternatives, 

the formulators explained that access to 

HCFC–141b beyond the phaseout would 

allow them to complete all the tests and 

qualifications necessary to implement 

alternative blowing agents (see Air 

Docket A–98–33: IV–D–35 to IV–D–66 

and IV–G–06 to IV–G–09). Upon review 

of these comments, EPA concluded that 

allowing production of HCFC–141b for 

the entire spray foam sector would 

58272 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

4A foam system typically consists of two transfer 

pumps that deliver ingredients (polyisocyanate 

from one side and a mixture including the blowing 

agent and stabilizers from the other side) to a 

metering/mixing device which allows the 

components to be delivered in the appropriate 

proportions. The components are then sent to a 

mixing gun and dispensed as foam directly to a 

surface such as a roof or tank. The ‘‘blended’’ foam 

systems being imported to the U.S. are complete 

systems, containing all the ingredients including 

the polyisocyanate and the blowing agent.

unfairly penalize companies who had 

invested in the transition from HCFC–

141b. Additionally, hundreds if not 

thousands of companies had been 

relying on the HCFC–141b phaseout for 

ten years and had made investments 

according to the phaseout date 

established in 1993. EPA did not believe 

an industry wide exemption from the 

production ban would provide any 

small businesses that were experiencing 

technical constraints access to HCFC–

141b produced after January 1, 2003, 

because they would be forced to 

compete with other companies for a 

limited supply of HCFC–141b (68 FR 

2827). Therefore, in an immediate effort 

to address the concerns of small 

businesses, EPA funded a three-year 

grant (2001–2004) to the Spray 

Polyurethane Foam Alliance (SPFA). 

This grant assisted the SPFA to 

investigate and test non-ODS 

alternatives as well as provide guidance 

to the spray foam sector on 

implementation of those alternatives. 

EPA also provided outreach and 

assistance through various meetings, 

presentations and guidance directed at 

the spray foam sector from 2001 to 2004 

(Air Docket OAR–2003–0228–30 and 31 

and http://www.epa.gov/ozone/snap/

foams/index.html). 

More importantly, in response to the 

small businesses’ requests for an 

extension of the production phaseout of 

HCFC–141b, EPA created the HCFC–

141b Exemption Allowance Petition 

process in the final HCFC Allowance 

Allocation rule (January 21, 2003, 68 FR 

2819). This process allowed formulators 

of HCFC–141b to individually petition 

EPA (on an annual basis) for new 

production of HCFC–141b beyond the 

phaseout date. The petitions must detail 

the technical viability of alternatives, 

access to stockpiled HCFC–141b and 

efforts to implement alternatives as well 

as the other information required under 

40 CFR 82.16(h). Over the past two 

years, EPA has received approximately 

25 petitions from formulators for a 

variety of applications, the majority of 

which were spray foam roofing and wall 

insulation. 

The switch to alternatives has been 

slowed in the spray foam market 

because of the continued availability of 

HCFC–141b. Although stockpiled 

HCFC–141b will be depleted by the end 

of 2004, that is not the only source of 

HCFC–141b being used for spray foam 

applications. ‘‘Blended’’ polyurethane 

foam systems 4 containing HCFC–141b 

as the blowing agent are being imported 

to the U.S. under this scenario, HCFC–

141b is newly produced and blended 

with the isocyanates, surfactants, fire 

retardants, etc. into a system in a 

country that is not subject to the 

production phaseout in the Montreal 

Protocol. Then, that ‘‘blended’’ system 

is imported into the U.S. for use in 

spray foam applications.

EPA has been monitoring this 

situation since the production phaseout 

on January 1, 2003 in order to determine 

whether this vehicle for obtaining 

HCFC–141b beyond the phaseout date 

would be exploited. As explained in the 

2002 final foam rule, ‘‘* * * if this 

activity becomes widespread and 

compromises or undermines the intent 

of the U.S. HCFC–141b phaseout, 

disadvantages companies that have 

made good faith investments in 

developing and implementing non-ODS 

alternative technologies, EPA could 

consider establishing a SNAP use 

restriction * * *’’ (67 FR 47708). Given 

the information EPA has received since 

HCFC–141b production was phased out, 

it is apparent that the continued 

availability of HCFC–141b through these 

‘‘blended’’ systems is not only delaying 

the transition to alternatives in the spray 

foam sector but threatens to reverse the 

transition by penalizing companies that 

have either transitioned to alternatives, 

or are technically capable of 

transitioning to alternatives but choose 

not to because of the widespread 

availability of foam systems containing 

HCFC–141b. 

Based on the information from the 

HCFC–141b Exemption Allowance 

Petitions and other information 

provided by the industry, on March 10, 

2004, EPA published a NODA (69 FR 

11358) pertaining to the availability, 

including the technical viability, of 

alternatives, and the import of 

‘‘blended’’ HCFC–141b polyurethane 

foam systems. EPA allowed 30 days for 

comment and received 16 comments on 

the information by the close of the 

comment period (April 9, 2004). The 

Agency received information on the 

technical viability of alternatives from 

chemical manufacturers, spray foam 

manufacturers, contractors, industry 

associations, and others. Copies can be 

obtained through the Air Docket by 

referencing OAR–2003–0228, Reference 

Numbers 14–29 (see ADDRESSES section 

above for docket contact info). Of the 16 

comments received, 5 were from small 

businesses raising some concerns about 

the use of stockpiled HCFC–141b and 

the ability for all businesses to 

transition to alternatives by January 1, 

2005. EPA addressed these and other 

issues the commenters raised below. In 

addition, EPA addressed any comments 

received to the 2004 NODA after the 

comment period closed on April 9, 2004 

in a document titled ‘‘Response To Late 

Comments’’ found in Air Docket OAR–

2003–0228. Today, EPA is making its 

final decision regarding the 

acceptability of HCFC–141b in the foam 

sector. EPA’s decisions are based on the 

technical viability of alternatives, timing 

and availability of alternatives, the need 

for products that maintain thermal 

efficiency, structural integrity, safety, 

and the potential economic implications 

of this action. 

B. Decision 

Based on the comments received on 

the proposal and NODA, EPA is taking 

the following final actions: (1) Changing 

the listing decision for HCFC–141b so 

that it is unacceptable for all foam 

blowing end uses (other than those 

applications specifically exempted) as 

of January 1, 2005, (2) exempting the 

use of HCFC–141b for space vehicle, 

nuclear and defense foam applications 

from the unacceptability determination, 

(3) exempting the use of HCFC–141b for 

laboratory research and development 

applications from the unacceptability 

determination and (4) allowing the use 

of fully formulated HCFC–141b foam 

systems in inventory before January 1, 

2005 until July 1, 2005. 

The majority of the HCFC–141b users 

in the foam industry transitioned to 

alternatives on or before January 1, 

2003. The remaining portion of the 

industry, specifically the spray foam 

sector, required additional time to 

implement alternatives to HCFC–141b. 

This sector includes small businesses at 

both the formulator level and the 

contractor level. Of the 15–20 

formulators in the U.S. some are small 

businesses. Equally, of the thousands of 

contractors many are small businesses. 

Both the formulators and contractors 

use the blowing agent (e.g. HCFC–141b) 

in the manufacture of foam. The 

formulators use the blowing agent by 

blending it into the foam formulations 

found in the spray foam systems. The 

contractors use the blowing agent by 

spraying the foam system containing the 

blowing agent to create the actual foam 

product (e.g. roof, wall, pipe insulation). 

Over the past three years, EPA has been 

working extensively with this sector in 

order to ensure a safe and timely 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58273

5Although raw material suppliers are currently 

relying on stockpiled HCFC–141b for their research 

and development needs they may require additional 

production or import of de minimis quantities of 

HCFC–141b in the future. In a 2002 final rule, EPA 

defined de minimis quantities of class I controlled 

substances as 5 pounds or less (December 31, 2002, 

67 FR 79861). EPA regulations exempt import and 

production of de minimis quantities of class I 

(CFCs) controlled substances for laboratory use 

from the phaseout of those substances with specific 

restrictions outlined in Appendix G in accordance 

with the Montreal Protocol (66 FR 14760). The issue 

of an HCFC–141b laboratory exemption including 

commercial research and development will be 

addressed in a separate rulemaking at a later date.

6These actions are as follows: 

• SNAP Foam NPRM, July 11, 2000, 65 FR 42653, 

• SNAP Foam NODA, May 23, 2001, 66 FR 

28408, 

• SNAP Foam Final rule, July 22, 2002, 67 FR 

47703, 

• HCFC Allowance Allocation Final rule, January 

21, 2003, 68 FR 2819, 

• SNAP Foam NODA, March 10, 2004, 69 FR 

11385.

transition to less harmful alternatives, 

through the SPFA grant, the HCFC–141b 

Exemption Allowance Petition process 

and through the outreach efforts cited 

above. 

In 2000, before the phaseout of 

HCFC–141b, small business formulators 

requested an extension of the HCFC–

141b phaseout date in order to complete 

testing, qualification and code approvals 

of their alternative systems. EPA’s 

technical expert, Caleb Management 

Services, surveyed the foam industry 

through a review of technical data and 

industry interviews and concluded that 

due to the field testing and approval 

process necessary for spray foam, 

commercial products containing 

alternatives would not be widely 

available until the beginning of 2005 

(Air Docket A–2000–18, IV–D–78). The 

formulators supported this assessment 

and urged EPA to take action consistent 

with the Caleb Report. EPA agreed with 

the formulators and Caleb’s assessment 

and established the HCFC–141b 

Exemption Allowance Petition process 

to provide relief to any business that did 

not have access to HCFC–141b while 

they were developing alternatives.

Suppliers of HCFC–141b and the 

majority of spray foam formulators 

(which hold the stockpiled HCFC–141b) 

provided key information to EPA 

through the two years of the HCFC–141b 

Exemption Allowance Petition process. 

This information included the quantity 

of stockpiled HCFC–141b available to 

the industry and the progress of 

formulators in implementing 

alternatives across the industry. EPA’s 

analysis of that information determined 

that stockpiled HCFC–141b will be 

depleted by the end of 2004, the 

majority of technical constraints 

limiting the use of other acceptable 

alternatives have been overcome and 

alternatives will be implemented by the 

end of 2004 (Air Docket OAR–2003–

0228–0009). 

In the second half of 2002 the 

suppliers produced a large quantity of 

stockpiled HCFC–141b, including 

approximately 6.5 million pounds of 

uncommitted HCFC–141b. As a result, 

the majority of formulators purchased 

stockpiled HCFC–141b to meet their 

needs as they transitioned to non-ODS 

alternatives. Those formulators that did 

not purchase stockpiled HCFC–141b in 

2002 before the phaseout, did so in both 

2003 and 2004. As a result, the spray 

foam sector primarily relied on 

stockpiled HCFC–141b. During this 

period, EPA did not authorize new 

production of HCFC–141b through the 

HCFC–141b Exemption Allowance 

Petition process, with the exception of 

small quantities for specialized space 

vehicle applications (Air Docket A–98–

33, IV–G–26–30). 

Some formulators have made 

significant progress to transition away 

from HCFC–141b since their 2000 

extension request. These firms now offer 

on the market foam systems containing 

non-ODS alternatives and others will be 

doing the same throughout 2004 (Air 

Docket OAR–2003–0228–0009). As EPA 

stated when establishing the HCFC–

141b Exemption Allowance Petition 

process in January 2003, ‘‘EPA believes 

all or almost all formulators can have 

fully-approved commercially available 

foam systems using alternatives by the 

end of 2004.’’ (68 FR 2828). The 

information gathered through the 

HCFC–141b Exemption Allowance 

Petition process supports EPA’s belief 

that alternatives to HCFC–141b are 

technically and economically viable for 

foam applications. 

Although alternatives are technically 

and economically viable for the majority 

of end uses in the foam industry, a few 

exceptions exist for space, nuclear and 

defense applications. EPA received 

information from the National 

Aeronautics and Space Administration 

(NASA), the National Nuclear Security 

Administration (NNSA) of the U.S. 

Department of Energy (DOE) and their 

contractors about specific foam 

applications that require continued use 

of HCFC–141b. These applications 

which include the use of HCFC–141b to 

insulate the external tank of the space 

shuttle and space launch vehicles in 

order to meet rigorous technical and 

human health and safety requirements. 

Alternatives to these uses have not 

proved technically viable to date (Air 

Docket OAR–2003–18, 20, 14 and 33). 

Those entities project their use of 

HCFC–141b will continue to at least 

2010 when either the projects will be 

complete or alternatives will be 

qualified. Based on the highly 

specialized safety and technical 

requirements, EPA is allowing the 

continued use of HCFC–141b in space 

vehicle, nuclear and defense foam 

applications beyond January 1, 2005. 

Additionally, suppliers of blowing 

agents, isocyanates, surfactants, fire 

retardants, etc. in the foam industry use 

small quantities of stockpiled HCFC–

141b in laboratory-scale research and 

development for users outside the US.5

This use includes various research and 

development activities such as 

preparing control samples, blending 

formulations, analyzing samples, etc. 

Given the fact that this is a small use 

that does not develop HCFC–141b foam 

products for the U.S., EPA is allowing 

the continued use of HCFC–141b in 

laboratory research and development 

applications beyond January 1, 2005.

Finally, EPA received comments from 

spray foam formulators and contractors 

requesting the use of inventoried HCFC–

141b spray foam systems beyond 

January 1, 2005. Since 2000, EPA has 

provided continual updates on the 

status of the proposal through regulatory 

actions every year.6 EPA believes that 

the spray foam sector has had sufficient 

notice to prepare and plan for the use 

restriction. This includes the prudent 

management of their inventories of 

stockpiled HCFC–141b and fully 

formulated systems containing HCFC–

141b.

On the other hand, EPA recognizes 

that the actual application of spray foam 

is weather dependent, especially in the 

winter months where spray foam jobs 

are scheduled and delayed because of 

uncontrollable weather events. 

Additionally, EPA understands that a 

fully formulated spray foam system 

typically has a shelf life of 

approximately six months. In other 

words, if a spray foam system was 

formulated in December for a roofing 

application but that application was 

delayed due to weather, that formulated 

system has to be used by the end of June 

in order to maintain the foam’s high 

quality and performance characteristics 

(after six months, the formulation could 

degrade and thus produce lower quality 

foam that does not meet all of the 

required performance standards). The 

total inventory of fully formulated spray 

foam systems is low in the winter 

because it is historically the slowest 

time of the year with relatively few 

spray foam applications scheduled. 

Thus, EPA is allowing the application of 

existing stock of fully formulated 

58274 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

systems containing HCFC–141b until 

July 1, 2005. 

In order to accommodate users who 

may have some remaining systems in 

inventory at the end of 2004, EPA is 

granting a one-time exception. Any fully 

formulated spray foam system 

containing HCFC–141b that is on-site 

and in the company’s physical 

inventory, as of December 31, 2004 can 

be used through June 30, 2005, pursuant 

to this one time exception. However, 

effective July 1, 2005, it will be illegal 

to use an inventoried fully formulated 

system containing HCFC–141b for the 

purpose of foam application. As 

explained above, a fully formulated 

spray foam system typically has a finite 

shelf life of approximately six months 

before the reactivity of the system slows 

down and it will not perform to 

specification. Therefore, once blended 

the fully formulated spray foam systems 

needs to be applied within that limited 

period. 

In order to comply with this 

exception, the spray foam systems 

containing HCFC–141b must be fully 

formulated and in existing stock with 

the formulator or contractor before 

January 1, 2005. Existing stock is 

defined as the total number of fully 

formulated systems containing HCFC–

141b physically on-site at the 

company’s facility on December 31, 

2004 and listed on the inventory list. An 

inventory list must be created reflecting 

the total number of fully formulated 

systems containing HCFC–141b, on-site, 

at the facility. The inventory list must 

identify the name, address (not a Post 

Office Box), city, state, zip code, of the 

facility where the fully formulated 

systems are stored, and a signature 

attesting that the total number of fully 

formulated systems is true and accurate 

as of December 31, 2004. The facility 

must keep a copy of the inventory list 

at the facility site which stores the fully 

formulated systems list for three years. 

Fully formulated systems that meet 

these conditions must be applied before 

July 1, 2005. Any user who knowingly 

applies an inventoried fully formulated 

system containing HCFC–141b on or 

after July 1, 2005 may be fined up to 

$27,500 per kilogram of HCFC–141b. 

IV. Response to Comments 

EPA received 45 comments during the 

comment period to the 2000 proposal. 

Those comments referred to all 

provisions in the proposal, including 

those related to the use of HCFC–22 and 

HCFC–142b, and were addressed in the 

2002 final foam rule (67 FR 477703). 

The comments received on the 2000 

proposal and the 2001 NODA regarding 

HCFC–141b were responded to in the 

final HCFC Allowance Allocation rule 

(28 FR 6819) which created the HCFC–

141b Exemption Allowance Petition 

process. In addition, EPA received 16 

comments during the comment period 

on the 2004 NODA. EPA addressed any 

late comments received to the 2004 

NODA after the comment period closed 

on April 9, 2004 in a document titled 

‘‘Response To Late Comments’’ found in 

Air Docket OAR–2003–0228. The 

comments EPA received within the 

comment period related to the use of 

HCFC–141b are summarized in the 

following 6 topics which are addressed 

in detail below: 

1. Technical Availability of 

Alternatives. 

2. Quantity of Stockpiled HCFC–141b.

3. Import into the U.S. of ‘‘Blended’’

Polyurethane Foam Systems. 

4. Clean Air Act. 

5. North American Free Trade 

Agreement. 

6. De-listing HCFC–141b and 

Grandfathering under SNAP. 

Technical Viability of Alternatives 

Some commenters said that not all 

spray foam formulators will have 

qualified non-ODS alternatives available 

to them at the end of 2004. EPA’s 

decision to list HCFC–141b as 

unacceptable in foam blowing is based 

on the fact that alternatives that provide 

a lower risk to human health and the 

environment are technically viable and 

commercially available. The 

commenters did not suggest or provide 

evidence why alternatives are not 

available to spray foam formulators. 

EPA’s analysis of the information 

gathered from the HCFC–141b 

Exemption Allowance Petitions 

indicates that some formulators are 

already offering commercial products 

using non-ODS alternative blowing 

agents and the majority of formulators 

will be able to offer such products by 

the end of 2004 (Air Docket OAR–2003–

0228–0009). As EPA stated when 

establishing the HCFC–141b Exemption 

Allowance Petition process, ‘‘EPA 

believes the spray and pour foam 

industries have had access to sufficient 

quantities of HFC–245fa [the alternative 

of choice for most formulators] for 

research, development and testing 

purposes since early 2001 and in many 

cases before. Therefore, by 2004, EPA 

believes that most, if not all, formulators 

in this sector will have had sufficient 

time to test and implement 

alternatives.’’ (68 FR 2828). 

Moreover, the formulators that 

petitioned EPA for newly produced 

HCFC–141b had to provide detailed 

information about the status of their 

implementation of alternatives. That 

information demonstrated that, overall, 

any remaining technical constraints 

were being addressed and alternatives 

would be implemented by the end of 

2004 (Air Docket OAR–2003–0228–

0009). It is important to note that these 

findings correspond and are consistent 

with the assessment in the Caleb Report 

of the spray foam sector and the 

formulators’ support of that assessment. 

The Caleb Report stated that after 

completing field testing and achieving 

code approvals, the spray foam sector 

would be able to offer commercial 

products containing alternatives by 

2005. Due to the progress in 

development, field testing and 

qualification in the sector, EPA believes 

by the beginning of 2005, the spray foam 

demand can be met with non-ODS 

alternatives. HCFC–141b will not be 

required to maintain technical 

requirements, such as structural 

integrity or thermal efficiency, in foam 

applications. However, as discussed in 

the previous section there are certain 

specialized space vehicle, nuclear and 

defense applications that do require 

HCFC–141b to meet rigorous technical, 

human health and safety requirements 

(i.e. space shuttle flight safety). For 

those limited applications, EPA is 

allowing the continued use of HCFC–

141b. 

Quantity of Stockpiled HCFC–141b 

Some commenters recommended that 

EPA allow the use of any remaining 

stockpiled HCFC–141b in 2005. Before 

the phaseout of HCFC–141b, EPA 

encouraged stockpiling HCFC–141b for 

use during the transition to alternatives, 

especially for formulators that were 

experiencing technical constraints. 

According to EPA’s analysis of data 

received from formulators and HCFC–

141b suppliers, the remaining 

stockpiled HCFC–141b will be depleted 

by the end of 2004. In fact, petitioners 

in the HCFC–141b Exemption 

Allowance Petition process provided 

EPA with the quantity of stockpiled 

HCFC–141b they currently held and 

then demonstrated they did not have 

access to additional stockpiled HCFC–

141b. Morever, the foam industry has 

been aware of the need to plan for its 

transition from HCFC–141b since 1993, 

which includes the use and 

management of a finite quantity of 

HCFC–141b. It is unlikely any company 

would be holding a large stockpile of 

HCFC–141b two years beyond the 

phaseout date. EPA is confident its 

analysis accurately reflects the quantity 

of stockpiled HCFC–141b available for 

use in the foam industry because it is 

based on data from the same industry 

that has requested to use stockpiles in 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58275

7Foam insulation products are defined as a 

product containing or consisting of the following 

foam types: Closed cell rigid polyurethane foam; 

closed cell rigid polystyrene boardstock foam; 

closed cell rigid phenolic foam; and closed cell 

rigid polyethylene foam when such foam is suitable 

in shape, thickness and design to be used as a 

product that provides thermal insulation around 

pipes used in heating, plumbing, refrigeration, or 

industrial process systems (40 CFR 82.62). Any use 

of acceptable HCFC substitutes listed under the 

Section 612 SNAP program must comply with these 

restrictions.

2005. EPA has been provided with no 

evidence that large stockpiles of HCFC–

141b will exist in the spray foam sector 

beyond January 1, 2005. Therefore, EPA 

has determined that it is not necessary 

to allow stockpiled HCFC–141b to be 

used in 2005. 

In a related issue, EPA acknowledges 

that some formulators and contractors 

could have HCFC–141b systems 

formulated and purchased in 2004 held 

in inventory at the beginning of 2005 

due to weather delays. Given the fact 

that the production of HCFC–141b has 

been phased out since January 1, 2003 

and that the use restriction was 

proposed in 2000, the foam industry has 

been on notice and should be making 

every effort to use HCFC–141b systems 

and transition to alternative based 

systems as soon as possible. However, 

as discussed in the previous section, in 

order to allow for the uncertainty of the 

winter months, EPA is allowing the use 

of fully formulated HCFC–141b foam 

systems that are in inventory before 

January 1, 2005 until July 1, 2005. This 

allowance will accommodate any 

formulators and contractors holding 

fully formulated HCFC–141b systems at 

the end of 2004 and ensure that HCFC–

141b produced before the phaseout is 

consumed without a loss to the 

purchaser. 

Import Into the U.S. of ‘‘Blended’’

Polyurethane Foam Systems 

EPA received comments suggesting 

that restricting the use HCFC–141b 

would unfairly impact Mexico because 

such a restriction would preclude the 

use of ‘‘blended’’ foam systems 

containing HCFC–141b that are 

manufactured in and imported from 

Mexico. Restricting the use of HCFC–

141b in foam applications in the U.S. 

does not restrict Mexico’s ability to 

obtain HCFCs or use HCFCs. Under the 

Montreal Protocol, as an Article 5 

country (a developing country), Mexico 

is allowed to produce and import 

HCFCs until 2040 in accordance with 

their baseline (which will be established 

in 2015). Equally, this use restriction 

does not prevent the use of or import 

into the U.S. of refrigerators or metal 

panels, for example, that contain HCFC–

141b. Those products can continue to be 

manufactured in Mexico (or any other 

country) and imported into the U.S. 

The commenters did not provide the 

quantity of HCFC–141b they were 

importing into the U.S. via these 

‘‘blended’’ foam systems but another 

commenter stated that as much as 8–9 

million pounds of HCFC–141b could be 

imported into the U.S. in this manner 

(Air Docket OAR–2003–0019). 

• Some of the commenters contend 

that they are relying on the revenue 

from the sale of these ‘‘blended’’ foam 

systems for use in the U.S. to fund their 

research and development into 

alternatives in Mexico. This issue is 

beyond scope of this rulemaking 

because the SNAP program focuses on 

the transition to alternatives in the U.S. 

rather than other countries. 

Clean Air Act 

Another commenter stated that 

Section 610 of the CAA prevents EPA 

from restricting the use of HCFC–141b 

in foam applications. Under Section 

610, EPA promulgated regulations 

prohibiting the sale and distribution and 

the offer for sale and distribution of 

nonessential products containing Class I 

and Class II controlled substances as of 

January 1994 (58 FR 4768 and 58 FR 

69638). In Section 610, Congress 

provided a list of products 

manufactured with those controlled 

substances that it considered 

nonessential and that should be banned 

from sale and distribution in the U.S. 

However, in the language of CAA 

Section 610(d)—the Class II 

Nonessential Ban, Congress did not 

provide a list of products it considered 

essential. It listed exceptions to the selfeffectuating ban for certain products 

(including ‘‘foam insulation products’’

containing Class II controlled 

substances), stating that those products 

should not be banned from sale and 

distribution in the U.S. at that time. 

Additionally, Section 610(d) provides 

the criteria that EPA should use to 

determine if additional products should 

be exempted from the ban. During the 

initial rulemaking to implement the 

Class II Nonessential Ban, EPA 

promulgated a definition for ‘‘foam 

insulation products’’ because the 

Agency determined that the use of the 

term ‘‘insulation’’ in the statute was 

ambiguous.7 EPA used its authority to 

reach a reasonable interpretation in 

developing a definition of foam 

insulation.

Specifically, the commenter stated 

because Section 610 identifies foam 

insulation products as excluded from 

the nonessential product ban, EPA ‘‘has 

no authority to restrict HCFC use in 

foam insulation products based on the 

availability of substitutes.’’ EPA agrees 

that under Section 610 it cannot ban the 

sale of foam insulation products made 

with ODS. However, the regulatory 

authority under Section 610 does not 

address EPA’s ability to regulate the 

transition from the use of ODS to 

alternatives in the manufacturing of 

products such as foam. EPA has 

consistently interpreted the relationship 

between Section 610 and 612 as being 

independent, in that, Section 612 can 

restrict the use of a substitute in a 

product regardless of whether or not 

that product is considered nonessential 

under Section 610 (58 FR 69646).

Additionally, that same commenter 

states that EPA cannot prevent the use 

of ‘‘blended’’ foam systems containing 

HCFC–141b because Sections 604, 605 

and 606 of the CAA are limited to 

controlled substances rather than 

products. Sections 604 and 605 mandate 

EPA to phaseout consumption 

(production + import ¥ export) of Class 

I and Class II controlled substances. 

Section 606 gives EPA the power to 

accelerate the phaseout schedule of 

Class I and Class II controlled 

substances based on new scientific or 

technological information or in 

accordance with changes in the 

Montreal Protocol. In 1993, EPA 

promulgated a regulation phasing out 

the production and import of Class I and 

Class II controlled substances (58 FR 

65018). As with Section 610, regulations 

promulgated under Sections 604, 605 

and 606 do not limit the ability of EPA 

to address the transition from ODS to 

alternatives under Section 612, in 

particular whether an ODS is an 

acceptable substitute for another ODS in 

light of the availability of less harmful 

substitutes. While Sections 604, 605, 

and 606 regulate the production of 

HCFC–141b, this rule under Section 612 

only restricts the use of HCFC–141b as 

a foam blowing agent substitute. The 

rule does not prohibit the production 

and import of HCFC–141b or products 

containing HCFC–141b (both of these 

issues are addressed in the separate EPA 

rulemakings discussed above). 

North American Free Trade Agreement 

(NAFTA) 

The commenter also states that if EPA 

prevents the use of HCFC–141b in foam 

applications the Agency would violate 

NAFTA because EPA’s action would 

exempt grandfathered domestic use of 

HCFC–141b while restricting the import 

of similar products from Mexico. EPA 

has considered this argument and does 

not believe that the final rule is 

inconsistent with U.S. obligations under 

58276 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

8This rule applies to the use of HCFC–141b, in 

the U.S., in foam applications covered by SNAP 

regulations. This rule does not apply to the 

production and import of ozone depleting 

substances (ODS). For information about trade of 

bulk ozone depleting substances, including HCFC–

141b, between Parties of the Montreal Protocol 

please refer to the Direct Final rule EPA published 

on June 17, 2004 (69 FR 34024).

the NAFTA (or any other international 

trade agreement to which the United 

States is a signatory), including Article 

301 (national treatment) or Chapter 11. 

This rule does not regulate trade in 

HCFC–141b.8 In terms of the use 

restriction on HCFC–141b, this rule 

does not distinguish where the HCFC–

141b or the foam system containing 

HCFC–141b comes from. Rather, the use 

restriction applies to the use of HCFC–

141b in certain foam blowing 

applications in the United States in the 

end uses covered by the SNAP 

regulations, including the use of foam 

systems containing HCFC–141b, 

regardless of the point of origin 

(domestic or foreign) of the HCFC–141b 

or how it is packaged. EPA is unaware 

of any other uses of foam systems 

containing HCFC–141b other than the 

uses covered by this rule. Thus, after 

December 31, 2004, it is unlikely that 

there will be a market for HCFC–141b 

systems in the United States. Although 

this rule does not restrict the import of 

HCFC–141b systems, we do not 

anticipate that these systems will 

continue to be imported after that date.

De-Listing HCFC–141b and 

Grandfathering Under SNAP 

The same commenter argues that EPA 

does not have the authority to ‘‘de-list’’

HCFC–141b once it has found it 

unacceptable unless petitioned to do so 

under Section 612(d). EPA found 

HCFC–141b acceptable in foam 

applications in 1994, but stated it was 

doing so as an interim measure (59 FR 

13044). In the proposal, EPA was 

following its mandate to review ODS 

alternatives and make determinations 

on their acceptability in order to ensure 

that substitutes for ODSs that are 

determined acceptable present a lower 

risk to human health and the 

environment than the ODS they replace 

and as compared with other potential 

substitutes. EPA disagrees, and as the 

Agency explained in the 2000 proposal, 

it has the authority to amend its 

regulations and change SNAP 

determinations independent of any 

petitions (65 FR 42659). Nothing in the 

statute bans such action and EPA 

believes that inherent in our authority to 

promulgate regulations initially is the 

authority to review and revise those 

regulations as the state of science 

advances. 

Because one goal of the SNAP 

program is to expedite the transition 

from ODS to alternatives, the basis for 

EPA’s proposal in 2000 was that the 

Agency believed alternatives were 

technically and economically viable in 

all foam applications. EPA deferred 

final action in 2002 because of 

insufficient information regarding the 

availability substitutes that presented a 

lower risk to human health and the 

environment. Because of concerns that 

the spray foam sector was experiencing 

technical constraints in implementing 

alternatives, in a separate rulemaking 

under Sections 605 and 606, EPA 

established the HCFC–141b Exemption 

Allowance Petition process as a 

mechanism to ensure formulators had 

access to HCFC–141b after the phaseout 

date. EPA also funded a three year grant 

to assist SPFA to develop and test 

alternatives. Today, considering the 

information generated by the above 

efforts, EPA believes alternatives are 

technically and economically viable and 

that the continued use of HCFC–141b 

contravenes the purpose and goal of 

Section 612, which is to ensure the use 

of alternatives that pose a lower risk to 

human health and the environment 

when such alternatives are technically 

and economically viable. 

The commenter also claims that 

restricting the use of HCFC–141b would 

violate EPA’s grandfathering practice. 

As explained in the proposal, ‘‘in the 

original SNAP rulemaking, EPA 

recognized that, where appropriate, EPA 

can grandfather the use of a substitute 

by setting the effective date of its 

unacceptability listing for one or more 

specific parties in the future.’’ (65 FR 

42658). In addition, the U.S. District 

Court for the District of Columbia 

established a four part test to judge the 

appropriateness of grandfathering which 

includes: (1) Is the new rule an abrupt 

departure from Agency practice, (2) 

what is the extent the interested parties 

relied on the previous rule, (3) what is 

the burden of the new rule on the 

interested parties and (4) what is the 

statutory interest in making the new 

rule effective immediately, as opposed 

to grandfathering interested parties (59 

FR 13057). EPA disagrees with the 

commenter that grandfathering is 

appropriate here. 

Grandfathering is designed to avoid 

penalizing users who have made good 

faith investments in alternatives. The 

foam industry has been on notice since 

1993 (when the production phaseout 

date for HCFC–141b was published) 

about the need to find alternatives to 

HCFC–141b. Furthermore, in 1994 in 

the initial SNAP rulemaking, EPA stated 

that the Agency was finding HCFC–141b 

acceptable as a substitute for CFC–11 in 

foam blowing as an interim measure (59 

FR 13083). Additionally, in 2000, EPA 

proposed to change the listing for 

HCFC–141b from acceptable to 

unacceptable effective January 1, 2005. 

Therefore, listing HCFC–141b as 

unacceptable is not an ‘‘abrupt 

departure’’ of EPA policy. 

Acknowledging the production 

phaseout of HCFC–141b, the majority of 

the foam industry made considerable 

investments and successfully 

transitioned to a variety of alternatives 

for a broad set of applications. The 

spray foam sector used stockpiled 

HCFC–141b for the remaining 

applications for an additional two years 

beyond the phaseout date in order to 

overcome any technical issues and 

qualify alternatives. That stockpile is 

expected to be depleted by the end of 

2004 and the spray foam sector now has 

technically and economically viable 

alternatives to HCFC–141b (Air Docket 

OAR–2003–0228–0009). 

However, despite the technical and 

commercial availability of alternatives, 

the transition from HCFC–141b in the 

spray foam applications is delayed by 

the continued availability of HCFC–

141b in the U.S. The alternatives which 

are technically and economically 

available pose a lower overall risk to 

human health and the environment. 

There is no technical reason why the 

transition to alternatives should not be 

completed in the foam industry. Thus, 

EPA is finding HCFC–141b 

unacceptable in foam applications as of 

January 1, 2005. 

V. Summary 

A major objective of the SNAP 

program is to facilitate the transition 

from ozone-depleting chemicals by 

promoting the use of substitutes which 

present a lower risk to human health 

and the environment (40 CFR 82.170(a)). 

In this light, a key policy interest of the 

SNAP program is promoting the shift 

from ODSs to alternatives posing lower 

overall risk and that are currently or 

potentially available (59 FR 13044). 

Today’s decision to list HCFC–141b as 

unacceptable in foam applications is 

based on EPA’s finding that the 

continued use of HCFC–141b in 

applications where non-ozone depleting 

alternatives are technically and 

economically available, would 

contribute to the continued depletion of 

the ozone layer, and will perpetually 

delay the transition to alternatives that 

pose lower overall risk to the health and 

the environment. 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58277

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review

Under Executive Order 12866, (58 FR 

51735; October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to the Office of Management and 

Budget (OMB) review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlement, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

Pursuant to the terms of Executive 

Order 12866, OMB has notified EPA 

that it considers this a ‘‘significant 

regulatory action’’ within the meaning 

of the Executive Order. EPA has 

submitted this action to OMB for 

review. Changes made in response to 

OMB suggestions or recommendations 

will be documented in the public 

record. 

B. Paperwork Reduction Act 

The Office of Management and Budget 

(OMB) has approved the information 

collection requirements contained in 

this rule under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0226. 

This action does not impose any new 

information collection burden. Today’s 

final rule is an Agency determination. 

OMB has previously approved the 

information collection requirements 

contained in the existing regulations in 

subpart G of 40 CFR part 82 under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060–

0226 (EPA ICR No. 1596.05). This 

Information Collection Request (ICR) 

included five types of respondent 

reporting and record-keeping activities 

pursuant to SNAP regulations: 

submission of a SNAP petition, filing a 

SNAP/Toxic Substances Control Act 

(TSCA) Addendum, notification for test 

marketing activity, record-keeping for 

substitutes acceptable subject to use 

restrictions, and record-keeping for 

small volume uses. 

Copies of the ICR document(s) may be 

obtained from Susan Auby, by mail at 

the Office of Environmental 

Information, Office of Information 

Collection, Collection Strategies 

Division; U.S. Environmental Protection 

Agency (2822T); 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, by 

email at auby.susan@epa.gov, or by 

calling (202) 566–1672. A copy may also 

be downloaded off the Internet at

http://www.epa.gov/icr. Include the ICR

and/or OMB number in any 

correspondence. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An Agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR Part 9 and 48 CFR Chapter 

15. 

C. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq. 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: 

(1) A small business that has fewer 

than 500 employees; 

(2) A small governmental jurisdiction 

that is a government of a city, county, 

town, school district or special district 

with a population of less than 50,000; 

and 

(3) A small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

Types of businesses that are subject to 

today’s final rule include: 

• Businesses that manufacture 

polyurethane/polyisocyanurate foam 

systems (NAICS 326150). 

• Businesses that use polyurethane/

polyisocyanurate systems to apply 

insulation to buildings, roofs, pipes, etc. 

(NAICS 326150). 

The proposal preceding this final rule 

contained provisions related to HCFC–

141b, HCFC–22 and HCFC–142b. As 

explained in the 2001 NODA and the 

2002 final rule (66 FR 28408, 67 FR 

47703), there were many small users of 

HCFC–22 and HCFC–142b that EPA was 

unaware of at the time of the proposal. 

The Agency hired a technical expert to 

investigate the concerns of the small 

businesses using HCFC–22 and HCFC–

142b and published the findings in the 

2001 NODA mentioned above. 

Subsequently, EPA addressed those 

concerns in the 2002 final rule 

mentioned above. 

Furthermore, as described in the 

preamble to this rule, EPA deferred its 

decision on the use of HCFC–141b in 

the 2002 final rule in order to address 

the concerns of the small businesses 

using HCFC–141b. Through a separate 

process, those small businesses in the 

spray foam sector requested an 

extension of the January 1, 2003 

production phaseout of HCFC–141b in 

order to complete the field testing and 

approvals necessary to transition to 

other alternatives. In response to the 

request, EPA established the HCFC–

141b Exemption Allowance Petition 

process in the HCFC Allowance 

Allocation final rule (January 21, 2003, 

68 FR 2819). This process allows 

formulators to petition EPA for new 

production of HCFC–141b if they do not 

have access to stockpiled HCFC–141b 

and meet the other criteria in 40 CFR 

82.16(h). 

After two years of development and 

field testing in the spray foam sector, 

alternatives are technically and 

economically viable and products 

containing those alternatives are 

commercially available. The majority of 

the spray foam sector has overcome the 

technical constraints and will be able to 

meet the demand in 2005 with 

alternatives. The spray foam sector 

consists of approximately 15–20 

formulators and thousands of 

58278 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

contractors, both groups include small 

businesses. The spray foam sector 

operates differently than many other 

end users regulated under SNAP, in that 

the contractors purchase the spray foam 

systems from the formulators and thus 

rely heavily on those formulators to 

provide technical expertise and 

qualified spray foam systems.

EPA’s analysis, found at Air Docket 

OAR–2003–0228, discusses the impact 

on formulators and contractors in the 

spray foam industry. This analysis 

indicates that due to the availability of 

multiple alternatives and the depletion 

of stockpiled HCFC–141b any economic 

impact on small businesses will be 

insignificant. Furthermore, virtually all 

those potential economic impacts result 

from the production and import 

phaseout of HCFC–141b in 2003. 

Because the production and import of 

HCFC–141b was phased out in the U.S. 

in 2003 and stockpiles of HCFC–141b 

will be depleted at the end of this year, 

spray foam formulators are transitioning 

to non-ODP blowing agents. Moreover, 

as explained in the analysis, EPA 

believes that the formulators that have 

completed the transition to alternatives 

have the capacity to meet the 

contractors demand in 2005. Finally, as 

described earlier in the preamble, in 

order to account for any remaining 

inventory of fully formulated systems 

containing HCFC–141b and to minimize 

any potential impact on contractors, 

EPA is allowing spray foam contractors 

to use those HCFC–141b systems in 

inventory at the end of the year until 

July 1, 2005. 

As noted above, there are numerous 

alternatives available and some users 

have independently transitioned away 

from the substances listed as 

unacceptable. The actions herein may 

well provide benefits to small 

businesses who have transitioned to 

alternatives and made good faith efforts 

and investments in the transition. After 

considering the economic impacts of 

today’s rule on small entities, EPA has 

concluded that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. EPA has 

determined that this rule does not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and tribal 

governments, in the aggregate, or the 

private sector in any one year. Today’s 

final rule does not affect State, local, or 

tribal governments. The enforceable 

requirements of the rule for the private 

sector affect only a small number of 

foam manufacturers using HCFC–141b 

in the United States, and there are 

technically viable alternatives for those 

manufacturers. The impact of this rule 

on the private sector is less than $100 

million per year. Thus, today’s rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. EPA 

has determined that this rule contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments. This regulation applies 

directly to facilities that use these 

substances and not to governmental 

entities. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This regulation 

applies directly to facilities that use 

these substances and not to 

governmental entities. Thus, Executive 

Order 13132 does not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments

Executive Order 13175, entitled 

‘‘Consultation and Coordination With 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This final rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

Today’s final rule does not 

significantly or uniquely affect the 

communities of Indian tribal 

governments, because this regulation 

applies directly to facilities that use 

these substances and not to 

governmental entities. Thus, Executive 

Order 13175 does not apply to this final 

rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 58279

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. The 

use of HCFC–141b in foam manufacture 

occurs in the workplace where we 

expect adults are more likely to be 

present than children, and thus, the 

agents do not put children at risk 

disproportionately. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This action would impact the 

manufacture of foam using HCFC–141b. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy effects. 

I. National Technology Transfer and 

Advancement Act 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, § 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective November 29, 2004. 

VII. Additional Information 

For more information on EPA’s 

process for administering the SNAP 

program or criteria for evaluation of 

substitutes, refer to the SNAP final 

rulemaking published in the Federal 

Register on March 18, 1994 (59 FR 

13044). Notices and rulemakings under 

the SNAP program, as well as EPA 

publications on protection of 

stratospheric ozone, are available from 

EPA’s Ozone Depletion Web site at 

http://www.epa.gov/ozone/ and from the 

Stratospheric Protection Hotline number 

at (800) 296–1996.

List of Subjects in 40 CFR Part 82 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements.

Dated: September 23, 2004. 

Michael O. Leavitt, 

Administrator.

■ For the reasons set out in the preamble, 

40 CFR part 82 is amended as follows:

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE

■ 1. The authority citation for Part 82 

continues to read as follows:

Authority: 42 U.S.C. 7414, 7601, 7671–

7671q.

Subpart G—Significant New 

Alternatives Policy Program

■ 2. Subpart G is amended by adding 

Appendix M to read as follows: 

Appendix M to Subpart G—

Unacceptable Substitutes Listed in the 

September 30, 2004 Final Rule, 

Effective November 29, 2004

58280 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations 

FOAM BLOWING—UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Comments

All foam end-uses: HCFC–141b ................... Unacceptable ................. Alternatives exist with lower or zero 

= ODP. 

—Rigid polyurethane and polyisocyanurate 

laminated boardstock 

—Rigid polyurethane appliance 

—Rigid polyurethane spray and commercial 

refrigeration, and sandwich panels 

—Rigid polyurethane slabstock and other 

foams 

—Polystyrene extruded insulation boardstock 

and billet 

—Phenolic insulation board and bunstock 

—Flexible polyurethane 

—Polystyrene extruded sheet 

Except for: 1

—Space vehicle 

—Nuclear 

—Defense 

—Research and development for foreign customers 

1Exemptions for specific applications are identified in the list of acceptable substitutes. 

[FR Doc. 04–21809 Filed 9–29–04; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY

40 CFR Part 174

[OPP–2004–0249; FRL–7372–6]

Bacillus thuringiensis var. aizawai 

strain PS811 (Cry1F insecticidal 

protein); Exemption from the 

Requirement of a Tolerance

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of Bacillus 

thuringiensis var. aizawai strain PS811 

(Cry1F insecticidal protein) and the 

genetic material necessary for its 

production in cotton when applied/used 

as a plant-incorporated protectant. 

DowAgro Sciences, LLC submitted a 

petition to EPA under the Federal Food, 

Drug, and Cosmetic Act (FFDCA), as 

amended by the Food Quality Protection 

Act of 1996 (FQPA), requesting an 

exemption from the requirement of a 

tolerance. This regulation eliminates the 

need to establish a maximum 

permissible level for residues of Bacillus 

thuringiensis var. aizawai strain PS811 

(Cry1F insecticidal protein) and the 

genetic material necessary for its 

production in cotton when used as a 

plant-incorporated protectant.

DATES: This regulation is effective 

September 30, 2004. Objections and 

requests for hearings must be received 

on or before November 29, 2004.

ADDRESSES: To submit a written 

objection or hearing request follow the 

detailed instructions as provided in 

Unit VIII. of the SUPPLEMENTARY

INFORMATION. EPA has established a 

docket for this action under Docket 

identification (ID) number OPP–2004–

0249. All documents in the docket are 

listed in the EDOCKET index at http:/

/www.epa.gov/edocket. Although listed 

in the index, some information is not 

publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Public Information and 

Records Integrity Branch (PIRIB), Rm. 

119, Crystal Mall #2, 1801 South Bell 

St., Arlington, VA. This docket facility 

is open from 8:30 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The docket telephone number 

is (703) 305–5805.

FOR FURTHER INFORMATION CONTACT:

Leonard Cole, Biopesticides and 

Pollution Prevention Division (7511C), 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 305–5412; e-mail address: 

cole.leonard@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information 

A. Does this Action Apply to Me?

You may be potentially affected by 

this action if you are a person or 

company involved with agricultural 

biotechnology, that may develop and 

market plant-incorporated protectants. 

Potentially affected entities may 

include, but are not limited to:

• Seed companies (NAICS code 111)

• Pesticide manufacturers (NAICS 

code 32532)

• Establishments involved in 

research and development in the life 

sciences (NAICS code 54171)

• Colleges, universities, and 

professional schools (NAICS code 

611310).

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT.

B. How Can I Access Electronic Copies 

of this Document and Other Related 

Information?

In addition to using EDOCKET (http:/

/www.epa.gov/edocket/), you may 

access this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. A