[Federal Register Volume 70, Number 213 (Friday, November 4, 2005)]
[Proposed Rules]
[Pages 67120-67129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21927]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[OAR-2003-0228, FRL-7993-2]
RIN 2060-AN11


Protection of Stratospheric Ozone: Listing of Ozone Depleting 
Substitutes in Foam Blowing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Today the Environmental Protection Agency (EPA) is proposing 
to determine that HCFC-22 and HCFC-142b are unacceptable for use in the 
foam sector 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 do not present a greater risk to 
public health and the environment than the substance they replace or 
than other available substitutes. Specifically, EPA is taking two 
actions. First, in response to a court decision upholding a challenge 
to EPA's July 2002 final rule finding HCFC-22 and HCFC-142b acceptable 
subject to Narrowed Use Limits in three foam end uses, we are proposing 
to find HCFC-22 and HCFC-142b unacceptable as substitutes for HCFC-141b 
in the foam end uses of commercial refrigeration, sandwich panels, 
slabstock and ``other'' foams. Second, in the July 2002 final rule, EPA 
withdrew a proposed action to find HCFC-22 and HCFC-142b unacceptable 
as substitutes for CFCs in all foam end uses. We are now issuing a new 
proposal to find HCFC-22 and HCFC-142b unacceptable as substitutes for 
CFCs in all foam end uses.

DATES: Comments on this proposed rule must be received on or before 
December 5, 2005, unless a public hearing is requested. If requested by 
November 21, 2005 a hearing will be held on December 5, 2005 and the 
comment period will be extended until January 3, 2006 by a document 
published in the Federal Register. Inquires regarding a public hearing 
should be directed to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0507 by one of the following methods:
    <bullet> Federal eRulemaking portal www.regulations.gov. Follow the 
on-line instructions for submitting comments;

[[Page 67121]]

    <bullet> Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments;
    <bullet> Fax comments to (202) 566-1741; or
    <bullet> Mail/hand delivery: Submit comments to Air and Radiation 
Docket at EPA West, 1301 Constitution Avenue, NW., Room B108, Mail Code 
6102T, Washington, DC 20460, Phone: (202) 566-1742.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0507. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available on-line at 
http://www.epa.gov/edocket, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA EDOCKET and the federal 
regulations.gov Web sites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit EDOCKET on-line or see the 
Federal Register of May 31, 2002 (67 FR 38102).
    Docket: 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 Air and Radiation Docket EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The 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 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: <a href="/cdn-cgi/l/email-protection#0c67636f6f6465227f79766d6262694c697c6d226b637a"><span class="__cf_email__" data-cfemail="107b7f737378793e63656a717e7e75507560713e777f66">[email protected]</span></a>. 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 six sections:
I. Regulated Entities
II. Section 612 Program
    A. Statutory Requirements
    B. Regulatory History
    C. Listing Decisions
III. Listing Decisions on HCFC-22 and HCFC-142b in the Foam Sector
    A. Background
    B. Proposal
IV. Summary
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
VI. Additional Information

I. Regulated Entities

    Today's rule regulates the use of HCFC-22 and HCFC-142b as foam 
blowing agents used in the manufacture of rigid polyurethane/
polyisocyanurate and extruded polystyrene foam products. Businesses 
that currently might be using HCFC-22 and HCFC-142bb, 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.
--Businesses that use manufacture extruded polystyrene foam insulation 
for buildings, roofs, pipes, etc.

    Table 1 lists potentially regulated entities:

 Table 1.--Potentially Regulated Entities, by North American Industrial
             Classification System (NAICS) Code or Subsector
------------------------------------------------------------------------
                                  NAICS code or       Description of
            Category                subsector       regulated entities
------------------------------------------------------------------------
Industry.......................          326150  Urethane and Other Foam
                                                  Product (except
                                                  Polystyrene)
                                                  Manufacturing.
Industry.......................          326140  Polystyrene Foam
                                                  Product 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:
    <bullet> Rulemaking--Section 612(c) requires EPA to promulgate 
rules making it unlawful to replace any class I (chlorofluorocarbon, 
halon, carbon tetrachloride, methyl chloroform,

[[Page 67122]]

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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 1994 
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. The use of such substitutes in applications and 
end-uses which are not specified as acceptable in the narrowed use 
limit is unacceptable and violates Section 612 of the CAA and the SNAP 
regulations. (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 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-and-comment 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 
proposed rule, EPA is revising its determination regarding the 
acceptability of HCFC-22 and HCFC-142b as substitutes for HCFC-141b and 
CFCs in the foam blowing sector. The section below presents a detailed 
discussion of the proposal being made today.

III. Listing Decisions on HCFC-22 and HCFC-142b in the Foam Sector

A. Background

    A major goal of the SNAP program is to facilitate the transition 
away from ODS to alternatives that pose less risk to human health and 
the environment. In 1994, EPA listed several HCFCs as acceptable 
replacements for CFCs \1\ because the Agency believed that HCFCs 
provided a temporary bridge to alternatives that do not deplete 
stratospheric ozone (i.e., ``ozone-friendly'' alternatives). 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-22 and HCFC-142b have become common foam blowing agents in 
place of CFCs. Pursuant to the CAA and the Montreal Protocol on 
Substances that Deplete the Ozone Layer, HCFC-22 and HCFC-142b are 
scheduled to be phased out of production and import in the United 
States on January 1, 2010.\2\ Since the time EPA initially listed HCFC-
22 and

[[Page 67123]]

HCFC-142b 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.\3\
---------------------------------------------------------------------------

    \1\ Historically, CFC-11, CFC-12, CFC-113 and CFC-114 have all 
been used as blowing agents in the foam industry, with CFC-11 in 
polyurethane applications and CFC-12 in extruded polystyrene 
boardstock applications being the two most popular CFC blowing 
agents (March 18, 1994, 59 FR 13082).
    \2\ The phaseout schedule was established on December 10, 1993 
(58 FR 65018) as authorized under section 606 of the Clean Air Act.
    \3\ These listings are published in the following Federal 
Register notices: September 3, 1996 (61 FR 47012), March 10, 1997 
(62 FR 10700), June 3, 1997 (62 FR 30275), February 24, 1998 (63 FR 
9151), June 8, 1998 (634 FR 30410), December 6, 1999 (64 FR 68039), 
April 11, 2000 (65 FR 19327), June 19, 2000 (65 FR 37900), December 
18, 2000 (65 FR 78977), August 21, 2003 (68 FR 50533) and October 1, 
2004 (69 FR 58903).
---------------------------------------------------------------------------

    In a final rule published on July 22, 2002, EPA did the following: 
(1) Found HCFC-22 and HCFC-142b acceptable substitutes for HCFC-141b 
with Narrowed Use Limits in the foam end uses of commercial 
refrigeration, sandwich panels, and rigid polyurethane slabstock and 
``other'' foams end uses; (2) withdrew a proposed decision to list 
HCFC-22 and HCFC-142b as unacceptable substitutes for CFCs for all foam 
end uses; (3) listed HCFC-22 and HCFC-142b as unacceptable substitutes 
for HCFC-141b in the foam end uses of rigid polyurethane/
polyisocyanurate laminated boardstock, rigid polyurethane appliance 
foam and rigid polyurethane spray foam; and (4) listed HCFC-124 as an 
unacceptable substitute in all foam end uses. This proposal again takes 
action with respect to two of the actions addressed in the July 2002 
rule. First, in light of a recent court decision (Honeywell Int'l v. 
EPA, 374 F.3d 1363 (D.C. Cir 2004), modified on rehearing 393 F.3d 1315 
(D.C. Cir. 2005)), EPA is proposing to list HCFC-22 and HCFC-142b as 
unacceptable substitutes for HCFC-141b in commercial refrigeration, 
sandwich panels, and slabstock and ``other'' foam, but is proposing to 
grandfather existing users until January 1, 2010. Second, EPA is once 
again proposing to list HCFC-22 and HCFC-142b as unacceptable 
substitutes for CFCs in all foam end uses, but is proposing to 
grandfather existing users until January 1, 2010.
HCFC-22 and HCFC-142b Unacceptable as Substitutes for HCFC-141b
    After the publication of the July 22, 2002 final rule, Honeywell 
International filed suit in the United States Court of Appeals for the 
District of Columbia Circuit (the Court), challenging the Narrowed Use 
Limits that the Agency established for HCFC-22 and HCFC-142b. Among 
other things, Honeywell alleged that EPA improperly considered costs in 
determining to establish Narrowed Use Limits instead of finding HCFC-22 
and HCFC-142b unacceptable for certain end uses. EPA argued that the 
decision was based solely on technical feasibility and, though not 
precluded from considering costs, it had not done so as part of the 
decision. The Court upheld Honeywell's challenge, explaining that 
various preamble statements indicated that EPA had considered costs, 
but that EPA had not explained the basis for doing so (Honeywell Int'l 
v. EPA, 374 F.3d 1363 (DC Cir 2004), modified on rehearing 393 F.3d 
1315 (D.C. Cir. 2005)). In light of the Court's decision, EPA is 
required to reassess its action with respect to the acceptability of 
HCFC-22 and HCFC-142b as substitutes for HCFC-141b in commercial 
refrigeration, sandwich panels, and slabstock and ``other'' foam. After 
considering new information on alternatives, the Agency is proposing to 
find HCFC-22 and HCFC-142b unacceptable as substitutes for HCFC-141b in 
commercial refrigeration, sandwich panels, and slabstock and ``other'' 
foam applications based on the technical viability of alternatives, as 
detailed in a section below. Therefore, EPA does not need to address 
whether other alternatives are so costly that they justify some limited 
acceptability determination for these substitutes.
    The majority of the applications in the end uses covered by the 
Narrowed Use Limits are applications referred to as ``pour foam''. Pour 
foam represents a diverse sector of the polyurethane industry comprised 
of a wide range of applications and fragmented HCFC use including: 
commercial refrigeration (such as walk-in coolers), doors (such as 
entry doors or garage doors), refrigerated transport, vending machines, 
residential architectural panels, tank and pipe insulation, marine 
flotation foams, floral foam and taxidermy foam.
    The pour foam sector operates differently than many other end uses 
regulated under SNAP. Rather than the end user directly buying and 
using an alternative, the alternative is first processed by a 
formulator, known as a ``systems house''. The formulators purchase raw 
materials, including the blowing agent (e.g. HCFC-22 or HCFC-142b), 
isocyanates, surfactants, and fire retardants from suppliers, and then 
blend the materials into a foam system. Formulators tend to sell pour 
foam systems in drums or other containers where the isocyanate is kept 
separate from the blowing agent and other ingredients. 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, in this case, pour foam manufacturers. The pour foam 
manufacturers purchase these systems from the formulators in order to 
produce the actual foam product (e.g., walk-in coolers). Thus, in the 
pour foam sector, formulators are responsible for implementing 
alternatives to the ozone-depleting blowing agents and providing the 
pour foam manufacturers with systems that produce foam meeting 
technical, safety, and performance requirements. Both the formulators 
and pour foam manufacturers are subject to SNAP regulations because 
both use the blowing agent--formulators blend the blowing agent into a 
foam formulation, and manufacturers produce the foam with aid of the 
blowing agent.
    There are approximately 15-20 systems houses in the U.S. that 
formulate pour foam systems and include both large and small 
businesses. EPA concluded in the 2002 final rule, that at that time, 
some pour foam applications, particularly those with thermal 
performance requirements, did not have technically viable ozone-
friendly alternatives available. As the Agency explained, ``EPA 
believes that ozone-friendly alternatives to HCFC-141b have not been 
fully developed and implemented across the spectrum of applications 
within these end-uses'' (67 FR 47707). Therefore, EPA established the 
Narrowed Use Limits to provide the formulators of pour foam systems who 
found alternatives were not technically viable in certain applications 
the flexibility to switch to the less harmful ozone depleting chemicals 
of HCFC-22 and HCFC-142b.
    EPA did not intend for the 2002 Narrowed Use Limits to remain in 
place permanently. As the Agency stated in the final rule, ``EPA is 
continuing to review the commercial refrigeration, sandwich panels, and 
slabstock and other foams end-uses to determine the progress of non-
ozone depleting alternatives. As non-ozone depleting alternatives 
become more widely available, the Agency will reevaluate the 
acceptability of HCFCs in these end-uses. Therefore, foam manufacturers 
within these applications that are using HCFCs should begin using non-
ozone depleting alternatives as soon as they are available in 
anticipation of future EPA action restricting the use of HCFCs'' (67 FR 
47704). Based on the information provided to EPA since the publication 
of the final rule in July 2002, EPA believes today that, alternatives 
are now widely available, technically viable, and in use in the end 
uses covered by the Narrowed Use Limits determination that was vacated

[[Page 67124]]

by the Court (Docket <greek-i> OAR-2004-0507, Documents 0004 through 
0011).
HCFC-22 and HCFC-142b Unacceptable as Substitutes for CFCs
    The 2002 final rule withdrew a proposal published in 2000 to change 
the listing of HCFC-22 and HCFC-142b as substitutes for CFCs from 
acceptable to unacceptable. EPA had proposed to list these substitutes 
as unacceptable for new users effective 60 days after publication of 
the final rule in the Federal Register, but to allow existing users of 
HCFC-22 and HCFC-142b to continue use of those substitutes (i.e., be 
``grandfathered'') until January 1, 2005. The Agency explained that it 
was appropriate to grandfather existing use of HCFC-22 and HCFC-142b, 
because EPA believed ``that it could take foam manufacturers up to four 
years to transition to alternatives'' (65 FR 42659).\4\ Commenters on 
the proposal largely agreed with EPA's assessment of the amount of time 
it takes to transition to alternatives in many foam applications. 
Additionally, the recent phaseout of HCFC-141b and the implementation 
of alternatives in those foam applications in which HCFC-141b was 
previously used has further demonstrated the accuracy of that four-year 
transition timeline. Grandfathering allows those who had made a good 
faith transition to a SNAP-approved alternative sufficient time to 
transition to a different alternative while prohibiting new investment 
in an alternative that no longer meets the test for being SNAP-approved 
(i.e., availability of other alternatives that provide less risk to 
human health and the environment).
---------------------------------------------------------------------------

    \4\ The decision to grandfather is based on the criteria 
established in Sierra Club v. EPA (719 F.2D 436 (DC CIR. 1983)). The 
criteria EPA examines to judge the appropriateness of grandfathering 
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).
---------------------------------------------------------------------------

    At the time of the proposal, the information available to EPA 
suggested that non-ozone depleting chemicals were technically viable as 
replacements and existing users of HCFC-22 and HCFC-142b could switch 
to these alternatives within four years. After the proposal, EPA 
gathered additional information regarding the technical viability of 
alternatives and presented that information in a Notice of Data 
Availability (NODA) (May 23, 2001, 66 FR 28408). Based on all of the 
information before the Agency, including comments on the proposed rule 
and the information made available through the NODA, EPA withdrew the 
proposal to list HCFC-22 and HCFC-142b as unacceptable substitutes for 
CFCs in the July 22, 2002 final rule. In particular, the extruded 
polystyrene industry, the largest user of HCFC-142b, and the 
polyurethane manufacturers using HCFC-22, cited technical constraints 
in implementing non-ODP alternatives. The Agency agreed and withdrew 
that portion of the proposal because EPA believed, at that time, there 
were technical constraints ``in switching to ozone-friendly 
alternatives for these users within the next several years'' (67 FR 
47707).
    Since the July 2002 final rule, the phaseout of HCFC-141b in 2003, 
and the action of the Court in 2004, EPA has gathered new information 
on the technical viability of non-ODP alternatives to HCFC-22 and HCFC-
142b in the foam industry (Docket <greek-i> OAR-2004-0507, Documents 
0004 through 0011). Today, EPA is proposing two actions regarding the 
acceptability of HCFC-22 and HCFC-142b in the foam sector. First, EPA 
is proposing to find HCFC-22 and HCFC-142b unacceptable as substitutes 
for HCFC-141b in the foam end uses of commercial refrigeration, 
sandwich panels, and slabstock and ``other'' foam, but is proposing to 
grandfather existing users until January 1, 2010. Second, EPA is 
proposing to find HCFC-22 and HCFC-142b unacceptable as substitutes for 
CFCs in all foam end uses, but is proposing to grandfather existing 
users until January 1, 2010. EPA's decisions are based on the technical 
viability of alternatives.

B. Proposal

(1) HCFC-22, HCFC-142b and Blends Thereof Are Proposed as Unacceptable 
as Substitutes for HCFC-141b in the Foam End-Uses of Commercial 
Refrigeration, Sandwich Panels, and Slabstock and ``Other'' Foam
    This proposal would prohibit users of HCFC-141b to switch to HCFC-
22 and HCFC-142b in commercial refrigeration, sandwich panels, and 
slabstock and ``other'' foams end uses. Based on the information EPA 
has received since 2002, the Agency believes that ozone-friendly 
alternatives are now technically viable and available in these three 
end uses. The information found in docket OAR-2004-0507 demonstrates 
that several SNAP-approved non-ODP alternatives, including 
hydrocarbons, HFC-245fa, HFC-134a, methyl formate and water, are widely 
available, technically viable in the foam end uses addressed by this 
proposal, and are being sold in the market today across the commercial 
refrigeration, sandwich panels, and slabstock and ``other'' foam end 
uses (Docket <greek-i> OAR-2004-0507, Documents 0004 through 0011).
    This listing would be effective 60 days following publication of a 
final action in the Federal Register. However, EPA is proposing that 
existing users of HCFC-22 and HCFC-142b as of the date of publication 
of this proposal in the Federal Register be grandfathered (i.e., 
allowed to continue their use) until January 1, 2010.\5\ EPA is 
proposing to grandfather existing users from the unacceptability 
determination based on our analysis under the four-part test 
established in Sierra Club v. EPA. The four parts of this test are 
described earlier in the preamble and are discussed on page 13057 of 
EPA's original SNAP rule (published on March 18, 1994). The Agency 
believes it is appropriate to grandfather these users for the same 
reasons provided below with respect to users of HCFC-22 and HCFC-142b 
who switched to these substitutes as an alternative for CFCs.
---------------------------------------------------------------------------

    \5\ In this context, existing use is defined as current use of 
HCFC-22 and/or HCFC-142b to manufacture actual foam products that 
are sold into commercial markets..
---------------------------------------------------------------------------

(2) HCFC-22, HCFC-142b and Blends Thereof Are Proposed as Unacceptable 
as Substitutes for CFCs in All Foam End Uses
    Due to the technical viability and availability of ozone-friendly 
alternatives, this proposal, if finalized, would prohibit any new use 
of HCFC-22 and HCFC-142b as substitutes for CFCs in all foam end uses. 
This listing would be effective 60 days following publication of a 
final action in the Federal Register. However, EPA is proposing that 
existing users of HCFC-22 and HCFC-142b as of the date of publication 
of this proposal in the Federal Register be grandfathered (i.e., 
allowed to continue their use) until January 1, 2010 based on our 
analysis under the four-part test established in Sierra Club v. EPA.
    EPA listed HCFCs as acceptable substitutes for CFCs in 1994 and 
although HCFCs are transitional substances, clearly users relied on the 
Agency's prior acceptability listing of HCFC-22 and HCFC-142b when they 
transitioned from CFCs in foam applications.\6\ Thus, for the existing

[[Page 67125]]

users of HCFC-22 and HCFC-142b that invested in good faith in these 
chemicals as replacements for CFC blowing agents, EPA believes it is 
appropriate to provide time for these users to transition to ozone-
friendly alternatives.
---------------------------------------------------------------------------

    \6\ Similarly, even through the 2002 final rule was eventually 
vacated by the Court in 2004, at that time users of HCFC-141b that 
transitioned to HCFC-22 and HCFC-142b in commercial refrigeration, 
sandwich panels, and slabstock and other foam relied on EPA's 
acceptability determination as it appeared in the 2002 final rule.
---------------------------------------------------------------------------

    As explained earlier, EPA believes that in some foam applications, 
particularly thermal insulation applications, it can take up to four 
years to complete a blowing agent transition. Requiring all existing 
users of HCFC-22 and HCFC-142b to comply immediately with the proposed 
unacceptability determination could place an undue burden on those 
entities mainly due to the amount of time and actions necessary to 
complete a successful blowing agent transition. For example, a recent 
review of the extruded polystyrene foam sector (which encompasses the 
largest use of HCFC-142b) found that companies in that industry would 
``likely experience technical constraints with the alternatives'' if 
they had to transition before January 1, 2010 because of the time it 
takes to test and implement a new blowing agent, including completing 
equipment and process modifications as well as gaining building code 
approval for the new products (Docket <greek-i> OAR-2004-0507-003). 
Equally, many of the polyurethane manufacturers using HCFC-22 are 
making foam products that have thermal insulation requirements, such as 
walk-in coolers or metal panels. Before transitioning, those 
manufacturers would need to undertake several preparatory actions, such 
as:
    (1) Making changes to existing equipment in order to optimize 
production and ensure worker safety;
    (2) Establish raw material suppliers;
    (3) Develop formulations;
    (4) Test final products; and
    (5) Obtain final product review and approval by industry and 
governmental standard setting bodies for flammability, building codes, 
and other safety and performance requirements).
    Based on the transition requirements described above, EPA believes 
it is appropriate that existing users of HCFC-22 and HCFC-142b in foam 
applications be allowed to continue using these chemicals until January 
1, 2010 in order to ensure a safe transition to non-ODP alternative 
blowing agents. The SNAP program is designed to encourage the 
transition away from ozone depleting chemicals, however, the balance of 
the factors related to existing users of HCFC-22 and HCFC-142b 
discussed above outweigh EPA's statutory interest in applying the 
unacceptability determination immediately to all users. EPA believes 
its goal of encouraging the transition away from HCFC-22 and HCFC-142b 
is still satisfied as new use of these substances will not be permitted 
in the foam sector and existing users will begin their transition to 
non-ODP alternatives. Due to the fact that ozone-friendly alternatives 
are available in nearly all foam applications, EPA strongly encourages 
all existing users of HCFC-22 and HCFC-142b to begin their transition 
to alternatives immediately and to complete the transition as soon as 
possible prior to January 1, 2010.
Request for Comments on Unique Applications Requiring HCFC-22 and HCFC-
142b
    In past rulemakings, where necessary, EPA has allowed specific, 
unique applications to continue use of a substitute that EPA has found 
to be unacceptable. For example, in the recent SNAP final rule 
published on September 30, 2004, EPA found the use of HCFC-141b 
unacceptable in all foam applications. However, based on technical 
information submitted to EPA during the comment period, the Agency 
exempted ``the use of HCFC-141b for space vehicle, nuclear and defense 
foam applications from the unacceptability determination'' (69 FR 
58272). EPA is not aware of any specialized foam applications that 
would require continued use of HCFC-22 or HCFC-142b beyond January 1, 
2010; however, the Agency is requesting comment about any applications 
that would require the use of HCFC-22 or HCFC-142b as blowing agents 
beyond January 1, 2010. When submitting information about such an 
application, please provide as much detail as possible about the 
application, the technical constraints to using alternatives, and the 
specific plan to implement alternatives, as well as any other relevant 
information.
    As discussed above, ozone-friendly alternatives exist for nearly 
all foam applications, particularly in the pour foam products found in 
the end uses of commercial refrigeration, sandwich panels, and 
slabstock and ``other'' foam. Accordingly, EPA is proposing to (1) list 
HCFC-22 and HCFC-142b as unacceptable substitutes for HCFC-141b in 
commercial refrigeration, sandwich panels, and slabstock and ``other'' 
foam; and (2) list HCFC-22 and HCFC-142b as unacceptable substitutes 
for CFCs in all foam end uses. These listings would be effective 60 
days after the publication of the final rule in the Federal Register. 
Existing users of HCFC-22 and HCFC-142b as of November 4, 2005 would be 
grandfathered until January 1, 2010.

IV. 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 proposal to list HCFC-22 and HCFC-142b 
as unacceptable substitutes for HCFC-141b in certain foam applications 
and as unacceptable substitutes for CFCs in all foam end uses is based 
on EPA's finding that the use of HCFC-22 and HCFC-142b in applications 
where non-ozone depleting alternatives are technically viable and 
commercially available, would contribute to unnecessary depletion of 
the ozone layer, and will delay the transition to alternatives that 
pose lower overall risk to the health and the environment. EPA is 
allowing existing users of HCFC-22 and HCFC-142b to continue use until 
no later than January 1, 2010 to ensure that they will be able to 
adjust their manufacturing processes to safely accommodate the use of 
non-ODP alternatives.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51,735 (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 entitlements, 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.

[[Page 67126]]

    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this proposal 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. 
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. This Information 
Collection Request (ICR) included five types of respondent reporting 
and recordkeeping activities pursuant to SNAP regulations: submission 
of a SNAP petition, filing a SNAP/Toxic Substances Control Act (TSCA) 
Addendum, notification for test marketing activity, recordkeeping for 
substitutes acceptable subject to use restrictions, and recordkeeping 
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 e-mail at <a href="/cdn-cgi/l/email-protection#d5b4a0b7acfba6a0a6b4bb95b0a5b4fbb2baa3"><span class="__cf_email__" data-cfemail="a0c1d5c2d98ed3d5d3c1cee0c5d0c18ec7cfd6">[email protected]</span></a>, 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

    The RFA 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, a 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.
    The types of businesses that are subject to today's final rule 
include businesses that manufacture polyurethane/polyisocyanurate foam 
systems (NAICS 326150) and businesses that use polyurethane/
polyisocyanurate systems to apply insulation to buildings, roofs, 
pipes, etc. (NAICS 326150).
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. EPA does not 
believe that small businesses will be adversely impacted by this 
proposal. The majority of the small businesses in the foam industry 
operate in the polyurethane foam sector as opposed to the extruded 
polystyrene foam sector (this rule covers both sectors). In the context 
of this proposal, small businesses (if they are still using an HCFC at 
all) are likely using HCFC-22 to manufacture pour foam applications 
such as commercial refrigeration, sandwich panels, and slabstock and 
``other'' foam. As explained below, the polyurethane pour foam sector 
operates differently than other SNAP sectors in that a small number of 
companies supply a much larger number of actual pour foam 
manufacturers.
    There are approximately 20 formulators in the U.S. that supply pour 
foam manufacturers foam systems which consist of two drums of 
ingredients including the blowing agent (e.g., HCFC-22). Some of the 
formulators are large businesses but many are small and their 
customers, the manufacturers, number in the thousands. The pour foam 
manufacturers use the foam system to produce the actual foam product 
(e.g., vending machine or metal panel). In this situation, the 
formulators are responsible for implementing alternatives to the ozone-
depleting blowing agent and providing the pour foam manufacturers with 
systems that produce foam meeting the necessary requirements, technical 
or otherwise. However, both the formulators and pour foam manufacturers 
are subject to SNAP regulations because both use the blowing agent.
    Information in the docket OAR-2004-0507 demonstrates that non-ODP 
alternatives are technically viable and commercially available. In 
fact, small businesses at both the formulator and pour foam 
manufacturer levels are already supplying and using non-ODP 
alternatives in applications such as commercial refrigeration, sandwich 
panels and slabstock and ``other'' foam. Therefore, those small 
businesses will not be adversely affected by the proposal to find HCFC-
22 and HCFC-142b unacceptable for use because they have already 
implemented alternatives.
    Equally, those small businesses that are still using HCFC-22 in 
pour foam applications will not be significantly impacted by this 
rulemaking. It is estimated that there are thousands of pour foam 
manufacturers, many of which are small businesses. However, these 
manufacturers will not be adversely impacted by this proposed rule 
because they buy their pour foam systems from the approximately 20 pour 
foam formulators discussed above. It is those 20 formulators that are 
responsible for implementing the alternatives to ozone depleting 
blowing agents (HCFC-22 and HCFC-142b) and providing a foam system to 
the pour foam manufacturers that meets all technical and performance 
requirements.
    In addition, manufacturers and users of HCFCs have had more than 10 
years to prepare for the January 1, 2010 deadline for phasing out 
production of HCFC-22 and HCFC-142 in the U.S. since the HCFC phaseout 
schedule was

[[Page 67127]]

established by a separate EPA regulation in 1993 (58 FR 65018). Today's 
proposal does not effect that long-standing phaseout date but rather 
would allow continued use of these chemicals until the phaseout 
deadline of January 1, 2010. Furthermore, the costs of the HCFC 
phaseout and the transition to non-ozone depleting alternatives were 
accounted for in a Regulatory Impact Analysis (RIA) that was performed 
in 1993 for the phaseout rule mentioned above. A memo found in the 
docket at OAR-2004-0507-0012 details the impacts of this proposal, 
including a discussion of the related 1993 phaseout rule and RIA, on 
both the pour foam formulators and pour foam manufacturers and 
concludes there will not be significant impact on a substantial number 
of small businesses. In fact, most formulators that are still using 
HCFC-22 and/or HCFC-142b have also implemented alternatives and sell 
both types of systems to their customers, the manufacturers (OAR-2004-
0507-0008). Based on this, it is clear that alternatives to ODS have 
been identified and there are no technical constraints to implementing 
those alternatives.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to further reduce the impact of this rule on small entities. 
Based on acceptability decisions in previous final rules, the Agency 
believes that some existing users of HCFC-22 and HCFC-142b, including 
small businesses, invested in good faith in SNAP-approved alternatives 
that EPA now finds unacceptable. Accordingly, it is appropriate for EPA 
to balance their interest against our statutory obligation to 
facilitate the transition away from ozone depleting chemicals as 
required by the four part test established in Sierra Club v. EPA. 
Grandfathering existing users of HCFC-22 and HCFC-142b, some of which 
are small businesses, allows those users approximately four years to 
transition to ozone-friendly alternatives. This is the time cited by 
small businesses when explaining their transition process in comments 
to separate but related rulemakings (see Air Docket A-2000-18) as well 
as being the time that has been needed for the transitions from other 
ODS, the most recent one being HCFC-141b.
    Grandfathering existing use of HCFC-22 and HCFC-142b until January 
1, 2010 aligns the unacceptability determination with the production 
phaseout date of those two chemicals. In many cases, companies plan 
their transition to non-ODP alternatives around the production and 
import phaseout deadline, due to both the greatly restricted supply and 
higher prices associated with the phased out ODS. Companies, in 
commenting on EPA's 2000 proposal to find HCFC-22 and HCFC-142b 
unacceptable as substitutes for CFCs objected to the fact that EPA was 
proposing an unacceptability determination before the production and 
import phaseout. Those commenters suggested EPA move the 
unacceptability determination to a later date that was in line with the 
phaseout (i.e., January 1, 2010). The 2003 phaseout of HCFC-141b 
demonstrated that restricted supply of that chemical resulted in higher 
prices for the foam sector which inevitably had some impact on the 
small businesses both at the formulator and manufacturer level. This 
proposed unacceptability determination would avoid that situation and 
level the playing field in the foam industry by requiring all 
businesses to transition from HCFC-22 and HCFC-142b on the same date, 
and in accordance with the production and import phaseout date (the 
date many of them are likely planning on completing their transition). 
Therefore, this proposal does not place any additional burden on 
existing users of HCFC-22 and HCFC-142b in the foam sector that have 
both had sufficient advance notice and had planned to transition to 
non-ODP alternatives on or before the production phaseout date.
    As discussed in the preamble and noted in the docket, there are 
numerous alternatives that are technically viable and available for all 
foam applications. In fact, some users have already transitioned away 
from HCFC-22 and HCFC-142b, particularly in pour foam applications 
(Docket <greek-i> OAR-2004-0507, Documents 0004 through 0011). The 
actions proposed here may well provide benefits to small businesses who 
have transitioned to alternatives and made good faith efforts and 
investments in the transition because they will be able to compete on a 
level playing field with those that are still using ODS blowing agents. 
EPA continues to be interested in the potential impacts of the proposed 
rule on small entities, and welcome comments on issues related to such 
impacts.

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 cost-effective 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 proposed 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 
that could potentially have switched to use HCFC-22 and HCFC-142b in 
the United States and those currently using HCFC-22 and HCFC-142b. With 
regard to potential new users, there are technically viable 
alternatives for those manufacturers. With regard to existing users, 
there are viable alternatives that will be feasible to use once the 
manufacturers have made the necessary adjustments to its facility and 
products. 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

[[Page 67128]]

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 proposed 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 proposal applies directly 
to facilities that use these substances and not to governmental 
entities. Thus, Executive Order 13132 does not apply to this rule. In 
the spirit of Executive Order 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicits comment on this proposed rule from State and 
local officials.

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 9, 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.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposal applies directly to facilities that use these 
substances and does not significantly or uniquely affect the 
communities of Indian tribal governments. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: Protection of Children from Environmental 
Health & 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 proposed 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-22 and HCFC-142b 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-22 and HCFC-142b. Further, we 
have concluded that this rule is not likely to have any adverse energy 
effects.

I. National Technology Transfer 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, section 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.

VI. 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: October 28, 2005.
Stephen L. Johnson,
Administrator.
    For the reasons set out in the preamble, 40 CFR part 82 is proposed 
to be 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 N to read as follows:
    Appendix N to Subpart G of Part 82--Unacceptable Substitutes Listed 
in the [date of publication of final rule in the Federal Register] 
final rule, effective [date 60 days after Federal Register publication 
date of final rule].

[[Page 67129]]



                                      Foam Blowing Unacceptable Substitutes
----------------------------------------------------------------------------------------------------------------
            End-use                         Substitute                       Decision               Comments
----------------------------------------------------------------------------------------------------------------
Replacements for HCFC-141b in   HCFC-22, HCFC-142b................  Unacceptable \1\..........  Alternatives
 the following rigid                                                                             exist with
 polyurethane applications:                                                                      lower or zero-
                                                                                                 ODP.
    --Commercial Refrigeration
    --Sandwich Panels
    --Slabstock and Other
     Foams
Replacements for CFCs in the    HCFC-22, HCFC-142b................  Unacceptable \2\..........  Alternatives
 following foam applications:                                                                    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
----------------------------------------------------------------------------------------------------------------
\1\ The unacceptability determination is effective on January 1, 2010 for existing users of HCFC-22 and HCFC-
  142b as of November 4, 2005 of this proposed rule.
\2\ The unacceptability determination is effective on January 1, 2010 for existing users of HCFC-22 and HCFC-
  142b as of November 4, 2005 of this proposed rule.

[FR Doc. 05-21927 Filed 11-3-05; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>