67120 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

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

22, 2001)). This action merely proposes 

to approve state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Redesignation of an area to 

attainment under section 107(d)(3)(e) of 

the Clean Air Act does not impose any 

new requirements on small entities. 

Redesignation is an action that affects 

the status of a geographical area and 

does not impose any new regulatory 

requirements on sources. Redesignation 

of an area to attainment under section 

107(d)(3)(E) of the Clean Air Act does 

not impose any new requirements on 

small entities. Redesignation is an 

action that affects the status of a 

geographical area and does not impose 

any new regulatory requirements on 

sources. Accordingly, the Administrator 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). Because this rule 

proposes to approve pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). This proposed 

rule also does not have a substantial 

direct effect on one or more Indian 

tribes, 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 by Executive Order 13175 (65 

FR 67249, November 9, 2000), nor will 

it 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 (64 FR 43255, 

August 10, 1999), because it merely 

proposes to affect the status of a 

geographical area, does not impose any 

new requirements on sources, or allow 

the state to avoid adopting or 

implementing other requirements, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the Clean 

Air Act. This proposed rule also is not 

subject to Executive Order 13045 (62 FR 

19885, April 23, 1997), because it is not 

economically significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Redesignation is an 

action that affects the status of a 

geographical area and does not impose 

any new requirements on sources. Thus, 

the requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this proposed rule, EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. EPA 

has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’ issued under the executive 

order. This rule proposing to approve 

the redesignation of the SNP area to 

attainment for the 8-hour ozone 

NAAQS, the associated maintenance 

plan, and the MVEBs identified in the 

maintenance plan, does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Nitrogen oxides, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

40 CFR Part 81 

Air pollution control, National parks, 

Wilderness areas. 

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

Dated: October 28, 2005. 

Donald S. Welsh, 

Regional Administrator, Region III. 

[FR Doc. 05–22031 Filed 11–3–05; 8:45 am] 

BILLING CODE 6560–50–P 

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: 

• Federal eRulemaking portal 

www.regulations.gov. Follow the online instructions for submitting 

comments; 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 67121 

• 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; 

• Fax comments to (202) 566–1741; or 

• 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 email 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: 

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 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

Category NAICS code 

or subsector Description of 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: 

• Rulemaking—Section 612(c) 

requires EPA to promulgate rules 

making it unlawful to replace any class 

I (chlorofluorocarbon, halon, carbon 

tetrachloride, methyl chloroform, 

67122 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

1Historically, 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). 

2The phaseout schedule was established on 

December 10, 1993 (58 FR 65018) as authorized 

under section 606 of the Clean Air Act. 

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 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-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 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., ‘‘ozonefriendly’’ 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 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 67123 

3These 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). 

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

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 ozonefriendly 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 enduses. 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 

67124 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

4The 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). 

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. 

6Similarly, 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. 

by the Court (Docket # 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 fouryear 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). 

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 # 

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 ozonefriendly 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 # 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. 

(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 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 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. 

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 # OAR–2004–0507–

003). Equally, many of the polyurethane 

manufacturers using HCFC–22 are 

making foam products that have thermal 

insulation requirements, such as walkin 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 nonODP 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. 

67126 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

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 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 

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 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 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 nonODP 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 # 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 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 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 

67128 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

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]. 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 67129 

FOAM BLOWING UNACCEPTABLE SUBSTITUTES

End-use Substitute Decision Comments 

Replacements for HCFC–141b in the following rigid polyurethane applications: HCFC–22, HCFC–142b .... Unacceptable 1 ....... Alternatives exist with lower 

or zero-ODP. 

—Commercial Refrigeration 

—Sandwich Panels 

—Slabstock and Other Foams 

Replacements for CFCs in the following foam applications: HCFC–22, HCFC–142b .... Unacceptable 2 ....... 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 

1The 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. 2The 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 

COMMISSION ON CIVIL RIGHTS 

45 CFR Part 703 

Membership Requirement of State 

Advisory Committees 

AGENCY: U.S. Commission on Civil 

Rights Commission. 

ACTION: Notice of proposed rule change 

in the State Advisory Committee (SAC) 

membership criteria with request for 

comments. 

SUMMARY: The United States 

Commission on Civil Rights proposes to 

amend its regulation on the SAC 

membership criteria to ensure both 

diversity and nondiscrimination are 

considered in its SAC member 

appointment process. 

DATES: Comments should be received on 

or before December 5, 2005 to be 

considered in the formulation of final 

rule. 

ADDRESSES: Address all comments about 

the proposed rule change in the SAC 

membership criteria to: U.S. 

Commission on Civil Rights, Office of 

General Counsel, Attn: Christopher 

Byrnes, Acting Deputy General Counsel, 

624 Ninth Street, NW., Suite 620, 

Washington, DC 20425. If you prefer to 

send your comments via e-mail, use the 

following address: cbyrnes@usccr.gov. 

You must include the term ‘‘SAC 

Membership Comments’’ in the subject 

line of your electronic message. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Byrnes, Acting Deputy 

General Counsel, Telephone: (202) 376–

7700 or via e-mail: cbyrnes@usccr.gov. 

SUPPLEMENTARY INFORMATION: On 

October 31, 2005, the U.S. Commission 

on Civil Rights approved the proposed 

rule for public comments. The 

Commission invites you to submit 

comments regarding the proposed 

change in the SAC membership criteria. 

Please clearly identify the specific 

proposed criteria each comment 

addresses. 

We will announce the final SAC 

membership criteria in a notice in the 

Federal Register. We will determine the 

final regulation on SAC membership 

criteria after considering responses to 

this notice and other information 

available to the Commission. 

List of Subjects in 42 CFR Part 703 

Advisory committees, Organization 

and functions (Government agencies). 

For the reasons stated in the 

preamble, the Commission on Civil 

Rights proposes to amend 45 CFR part 

703 as follows: 

PART 703—OPERATIONS AND 

FUNCTIONS OF STATE ADVISORY 

COMMITTEES 

1. The authority citation for Part 703 

continues to read as follows: 

Authority: 42 U.S.C. 1975a(d). 

2. Revise § 703.5 to read as follows: 

§ 703.5 Membership. 

(a) Subject to exceptions made from 

time to time by the Commission to fit 

special circumstances, each Advisory 

Committee shall consist of at least 11 

members appointed by the Commission. 

Members of the Advisory Committees 

shall serve for a fixed term to be set by 

the Commission upon the appointment 

of a member subject to the duration of 

Advisory Committees as prescribed by 

the charter, provided that members of 

the Advisory Committee may, at any 

time, be removed by the Commission. 

(b) No person is to be denied an 

opportunity to serve on a State Advisory 

Committee because of race, age, sex, 

religion, national origin, or disability. 

The Commission shall encourage 

membership on the State Advisory 

Committee to be broadly diverse. 

(c) State Advisory Committee 

members shall represent a diversity of 

skills and experiences, including, but 

not limited to, social science research, 

legal research and analysis, and 

statistical analysis. Educators, lawyers, 

business and labor leaders, social 

scientists, researchers, and news 

gatherers are some of the more 

important professions or activities or 

avocations that should be represented 

on the State Advisory Committees. The 

State Advisory Committees should also 

contain people knowledgeable of the 

State’s governmental machinery and 

public service sector, and people 

involved in and drawn from such 

influential sectors as business and 

financial communities, organized labor, 

the news media, and religious groups. 

(d) Each State Advisory Committee 

should contain men or women who 

have demonstrated an interest in the 

civil rights issues of color, race, religion, 

sex, age, disability, and national origin 

and in voting rights. 

(e) Both political parties should be 

represented in each State Advisory 

Committee.