Notice2021-28281
Consideration of Negotiated Rulemaking for Petitions Granted or Partially Granted Under Subsection (i) of the American Innovation and Manufacturing Act of 2020
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 29, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The purpose of this notice is to inform the public of the Environmental Protection Agency's consideration of the negotiated rulemaking procedure provided for under the Negotiated Rulemaking Act of 1990, and the Agency's decision to not use these procedures for a rulemaking under subsection (i) of the American Innovation and Manufacturing Act of 2020 that will address ten petitions that were granted and one petition that was partially granted by the Agency under this subsection on October 7, 2021.
Full Text
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<title>Federal Register, Volume 86 Issue 247 (Wednesday, December 29, 2021)</title>
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[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Notices]
[Pages 74080-74082]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-28281]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OAR-2021-0643; FRL-9286-01-OAR]
Consideration of Negotiated Rulemaking for Petitions Granted or
Partially Granted Under Subsection (i) of the American Innovation and
Manufacturing Act of 2020
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The purpose of this notice is to inform the public of the
Environmental Protection Agency's consideration of the negotiated
rulemaking procedure provided for under the Negotiated Rulemaking Act
of 1990, and the Agency's decision to not use these procedures for a
rulemaking under subsection (i) of the American Innovation and
Manufacturing Act of 2020 that will address ten petitions that were
granted and one petition that was partially granted by the Agency under
this subsection on October 7, 2021.
DATES: Petitions referenced in this notice were granted by the
Administrator via letters signed on October 7, 2021; thus, EPA is
required by statute to promulgate a final rule or rules by October 7,
2023.
FOR FURTHER INFORMATION CONTACT: Joshua Shodeinde, Stratospheric
Protection Division, Office of Atmospheric Programs (6205T),
Environmental Protection Agency, telephone number: 202-564-7037; email
address: <a href="/cdn-cgi/l/email-protection#b4c7dcdbd0d1dddad0d19adedbc7dcc1d5f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="a2d1cacdc6c7cbccc6c78cc8cdd1cad7c3e2c7d2c38cc5cdd4">[email protected]</span></a>. You may also visit EPA's website at
<a href="https://www.epa.gov/climate-hfcs-reduction">https://www.epa.gov/climate-hfcs-reduction</a> for further information.
SUPPLEMENTARY INFORMATION:
I. Background
On October 7, 2021, the Administrator granted or partially granted
eleven petitions submitted under subsection (i) of the American
Innovation and Manufacturing Act of 2020 (AIM Act or
Act).<SUP>1 2</SUP> This subsection provides that the Administrator may
by rule restrict, fully, partially, or on a graduated schedule, the use
of a regulated substance \3\ in the sector or subsector in which the
regulated substance is used. Under subsection (i)(3) a person may
petition the Administrator to promulgate a rule for the restriction on
use of a regulated substance in a sector or subsector which shall
include a request that the Administrator negotiate with stakeholders in
accordance with subsection (i)(2)(A). Where the Agency grants a
petition submitted under subsection (i), the statute requires that EPA
promulgate a final rule not later than two years from the date the
Agency grants the petition. Prior to issuing a proposed rule under
subsection (i) for the use of a regulated substance for a sector or
subsector, subsection (i)(2)(A) directs EPA to consider negotiating
with stakeholders in the sector or subsector subject to the potential
rule in accordance with negotiated rulemaking procedures established
under subchapter III of chapter 5 of title 5, United States Code
(commonly known as the ``Negotiated Rulemaking Act of 1990''). Under
subsection (i)(2)(C), if the Administrator does not negotiate a
rulemaking with stakeholders, the Administrator shall publish an
explanation of the decision of the Administrator to not use that
procedure. This notice provides that explanation of the Agency's
decision not to use a negotiated rulemaking for the rulemaking process
that EPA plans to commence to address the eleven petitions that were
granted or partially granted on October 7, 2021.
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\1\ The AIM Act was enacted as section 103 in Division S,
Innovation for the Environment, of the Consolidated Appropriations
Act, 2021 (Pub. L. 116-260). In general terms, the AIM Act provides
EPA authorities to address HFCs in three main areas: Phasing down
the production and consumption of listed HFCs; managing these HFCs
and their substitutes; and facilitating technology transitions by
restricting use of these HFCs in the sector or subsector in which
they are used.
\2\ For a list of petitions granted or partially granted, see
Determination to Grant or Partially Grant Certain Petitions
Submitted Under Subsection (i) of the American Innovation and
Manufacturing Act of 2020, 86 FR 57141 (October 14, 2021).
\3\ The Act provides that ``regulated substance'' refers to
those substances included in the list in subsection (c)(1) of the
Act and those substances that the Administrator has designated as a
regulated substance under subsection (c)(3). Subsection (c)(1) lists
18 saturated HFCs, and by reference their isomers not so listed, as
regulated substances. This is the current list of regulated
substances, as no additional substances have been designated as
regulated substances under subsection (c)(3).
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II. What is a negotiated rulemaking?
The purpose of the Negotiated Rulemaking Act of 1990,\4\ as stated
in 5 U.S.C. 561, is to establish a framework for the conduct of
negotiated rulemaking to encourage agencies to use the process when it
enhances the informal rulemaking process. The Negotiated Rulemaking Act
authorizes an agency to establish a negotiated rulemaking committee to
negotiate and develop a proposed agency rule if the head of the agency
determines that the use of the negotiated rulemaking procedure is in
the public interest. In making such a determination, the Negotiated
Rulemaking Act provides that the head of the agency shall consider
whether: (1) There is a need for a rule; (2) there are a limited number
of identifiable interests that will be significantly affected by the
rule; (3) there is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who can adequately
represent the identified interests and are willing to negotiate in good
faith to reach a consensus on the proposed rule; (4) there is a
reasonable likelihood that a committee will reach a consensus on the
proposed rule within a fixed period of time; (5) the negotiated
rulemaking procedure will not unreasonably delay the notice of proposed
rulemaking and the issuance of the final rule; (6) the agency has
adequate resources and is willing to commit such resources, including
technical assistance, to the committee; and (7) the agency, to the
maximum extent possible consistent with the legal obligations of the
agency, will use the consensus of the committee with respect to the
proposed rule as the basis for the rule proposed by the agency for
notice and comment.
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\4\ The Negotiated Rulemaking Act of 1990 was reauthorized in
1996 and is now incorporated into the Administrative Procedure Act,
at 5 U.S.C. 561-570.
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If a head of agency determines that the use of the negotiated
rulemaking procedure is in the public interest, an agency may convene a
federally chartered advisory committee, and may rely on an appointed
convener under 5 U.S.C. 563(b) to assist with ascertaining the names of
persons who are willing and qualified to represent interests that will
be significantly affected by the proposed rule. If the agency decides
to establish a negotiated rulemaking committee, the agency must publish
in the Federal Register and in relevant publications a notice
announcing the agency's intention to establish a negotiated rulemaking
committee, a description of the subject and scope of the rule, a list
of the interests which are likely to be significantly affected by the
rule, a list of the persons proposed to represent such interests and
the proposed agency representatives, a proposed agenda and schedule for
completing the committee's work, a description of the administrative
and technical support to be provided to the committee by the agency, a
solicitation for comments on the proposal to establish the committee
and on the proposed membership of the committee, and an explanation of
how a person may apply or nominate another person for membership on the
committee. The agency must provide at least 30 calendar
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days for the submission of comments and applications related to the
membership of the committee. In establishing and administering such a
committee, the agency shall comply with the Federal Advisory Committee
Act, unless an exception applies. If the committee reaches consensus on
a proposed rule, the committee shall transmit a report containing the
proposed rule to the federal agency. If the committee does not reach a
consensus on a proposed rule, the committee may transmit a report
specifying any areas upon which consensus was reached. The proposed
rule is still subject to public comment, and for purposes of a
rulemaking developed under the AIM Act, the requirements of CAA section
307(d).
Under the Negotiated Rulemaking Act, any agency action relating to
establishing, assisting, or terminating a negotiated rulemaking
committee shall not be subject to judicial review. 5 U.S.C. 570.
III. Petitioners' Statements on Use of Negotiated Rulemaking Procedures
All petitioners indicated their support for EPA not to use
negotiated rulemaking procedures in developing a proposed rulemaking
associated with their petitions, and to instead rely solely on a
traditional notice-and-comment rulemaking process. Per AIM Act section
(k)(1)(C) and CAA section 307(d)(1)(I), the rulemaking is governed by
CAA section 307(d). Nearly all petitioners indicated that with regards
to their petition requests, the negotiated rulemaking process is not
needed and would not be efficient because many of the petition requests
have already undergone extensive stakeholder processes. For example,
petitioners pointed out that in many cases, their requests align with
changes of status decisions contained in EPA's Significant New
Alternatives Policy (SNAP) program's rules 20 and 21 \5\ and state HFC
laws and regulations,\6\ and therefore the substantive requests in the
petitions have already been vetted through federal or state rulemaking
or legislative processes.\7\ Petitioners representing industry trade
associations such as the American Chemistry Council's Center for
Polyurethane Industry, the Association of Home Appliance Manufacturers,
and the Air Conditioning, Heating, and Refrigeration Institute indicate
that their requests represent the consensus view of the vast majority
of industry stakeholders who may be subject to compliance obligations
based on their petitions. These petitioners assert that a negotiated
rulemaking would provide no value for stakeholders, the public, and the
potentially regulated community because a traditional notice-and-
comment rulemaking provides ``a suitably transparent and representative
regulatory process.'' \8\
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\5\ After a court challenge, the D.C. Circuit partially vacated
the SNAP Rule 20 ``to the extent it requires manufacturers to
replace HFCs with a substitute substance,'' and remanded to EPA for
further proceedings. Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 464
(D.C. Cir. 2017). However, the court upheld EPA's decisions in that
rule to change the listings for certain HFCs in certain SNAP end-
uses from acceptable to unacceptable as being reasonable and not
arbitrary and capricious. Id. at 462-64. The same court later issued
a similar partial vacatur for portions of the SNAP Rule 21. See
Mexichem Fluor, Inc. v. EPA, 760 Fed. Appx. 6 (Mem) (per curiam)
(D.C. Cir. 2019).
\6\ A number of states have established legislative and/or
regulatory restrictions on the use of HFCs in sectors. These include
California, Colorado, Delaware, Maine, Maryland, Massachusetts, New
Jersey, New York, Rhode Island, Virginia, Vermont, Washington.
\7\ See <a href="https://ww2.arb.ca.gov/our-work/programs/hfc-reduction-measures/rulemaking">https://ww2.arb.ca.gov/our-work/programs/hfc-reduction-measures/rulemaking</a>.
\8\ See, for example, the Association of Home Appliance
Manufacturers and the Air Conditioning, Heating, and Refrigeration
Institute petitions, available at <a href="https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0005">https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0005</a> and <a href="https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0012">https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0012</a>, respectively.
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Petitioners also note that a negotiated rulemaking may
unnecessarily delay timely action by the Agency. Several petitions
stress the need for quick action from the Agency in finalizing a rule
to create a federal regulatory framework, maximize potential climate
and environmental benefits, and to give industry sufficient time to
prepare to transition away from using HFCs. These petitioners suggest
that using negotiated rulemaking procedures requires more commitment of
time and resources that may unnecessarily delay action.
One petitioner raised concerns with protecting intellectual
property (IP) and trade secrets if EPA uses a negotiated rulemaking.\9\
According to the petitioner, potential release of sensitive information
would effectually block technology category-based discussions from
occurring and thus could unnecessarily limit discussions as well as
reach consensus.
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\9\ See DuPont comment letter submitted on August 9, 2021,
available at <a href="https://www.regulations.gov/comment/EPA-HQ-OAR-2021-0289-0043">https://www.regulations.gov/comment/EPA-HQ-OAR-2021-0289-0043</a>.
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IV. EPA's Considerations of Criteria Under the Negotiated Rulemaking
Act
The Negotiated Rulemaking Act of 1990, 5 U.S.C. 563, provides seven
criteria that the head of the agency shall consider when determining
whether a negotiated rulemaking is in the public interest. We think
these criteria are informative for purposes of making the determination
under AIM Act subsection (i) of whether to use the procedures set out
in the Negotiated Rulemaking Act for the proposed rule or rules
associated with the 11 granted and partially granted petitions. EPA's
consideration of each criteria is described below.
Criteria (1) whether there is a need for a rule: The AIM Act
requires that EPA promulgate a final rule in response to granted
petitions under subsection (i) of the AIM Act.
Criteria (2) whether there are a limited number of identifiable
interests that will be significantly affected by the rule: The
petitions at issue request the EPA to promulgate restrictions on the
use of HFCs in an array of applications across many industries that
would affect residential and business consumers in the air
conditioning, refrigeration, aerosols, and spray foams spaces. Because
of the similarities in the granted petitions, EPA is considering
consolidating the issues into significantly fewer than 11 separate
rulemakings. We may also, as part of the anticipated rule or rules,
consider additional issues not raised in the petitions. For example,
initial rulemaking under subsection (i) may also address framework
elements that are broader than what is covered by the petitions (e.g.,
definitions, applicability, recordkeeping). Given the nature of these
particular petition requests and the anticipated scope of rulemaking,
it is unlikely that there are a ``limited'' number of identifiable
interests; on the contrary, a significant number of entities are likely
interested and may be impacted by forthcoming rules.
Criteria (3) whether there is a reasonable likelihood that a
committee can be convened with a balanced representation of persons who
can adequately represent the identified interests and are willing to
negotiate in good faith to reach a consensus on the proposed rule: EPA
granted ten petitions and partially granted one other petition that
covered over 40 applications in the refrigeration, air conditioning,
foam, and aerosol sectors, with some petitions covering multiple
applications. Although EPA has a long history working with a diverse
group of stakeholders in all applications covered by the granted
petitions under various CAA Title VI authorities (e.g., sections 608,
609, 610, 612), the broad range of applications would make it difficult
to convene a committee that would be representative of all interested
groups.
Criteria (4) whether there is a reasonable likelihood that a
committee will reach a consensus on the proposed rule within a fixed
period of time: Based
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on the information provided by petitioners in section III above, and
letters of support submitted to the docket,\10\ there appears to be
consensus among different interest groups to move forward with
proposing HFC restrictions similar to those contained in petitions.
However, there may also be entities potentially affected by proposed
rules who have yet to indicate their interest to the Agency.
Additionally, EPA has identified a few applications--specifically in
industrial process refrigeration (without chillers) and chillers for
industrial process refrigeration--where certain petitioners have
requested different HFC restrictions. Therefore, it is not clear
whether a committee could reach a consensus on the proposed rule within
a fixed period of time.
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\10\ For a list of comments received on petitions, see ``NODA
Comments'' at <a href="http://www.regulations.gov">www.regulations.gov</a>, under Docket ID EPA-HQ-OAR-2021-
0643. These comments were originally submitted to Docket ID EPA-HQ-
OAR-2021-0289.
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Criteria (5) whether the negotiated rulemaking procedure will not
unreasonably delay the notice of proposed rulemaking and the issuance
of the final rule: Given the number of granted petitions, the wide
variety of stakeholders, and the number of applications at issue,
seeking to identify and convene a negotiated rulemaking committee and
following other provisions under the Negotiated Rulemaking Act of 1990,
such as publishing a list of potential committee members and awaiting
public comment on this list, would likely cause delay in proposing and
finalizing a rulemaking in the timeframe provided by the statute.
Criteria (6) whether the agency has adequate resources and is
willing to commit such resources, including technical assistance, to
the committee: If the determination here or in the future is that a
negotiated rulemaking is appropriate, then EPA would take steps to
commit resources, including technical assistance to a committee.
Criteria (7) whether the agency, to the maximum extent possible
consistent with the legal obligations of the agency, will use the
consensus of the committee with respect to the proposed rule as the
basis for the rule proposed by the agency for notice and comment:
Should the Agency decide to use negotiated rulemaking procedures now or
in the future, the Agency would propose rules for notice and comment
consistent with language developed by the negotiated rulemaking
committee.
V. EPA's Decision Not to Use the Negotiated Rulemaking Procedure
We have considered the information provided by petitioners and the
criteria listed in section 5 U.S.C. 563 of the Negotiated Rulemaking
Act of 1990. In our assessment, using the negotiated rulemaking
procedure to develop the proposed rule or rules associated with the
eleven AIM Act petitions at issue is not in the public interest. For
these eleven petitions, we do not think the negotiated rulemaking
procedure for identifying, nominating, and taking comment on a
relatively limited group of interested parties would be beneficial to
reaching consensus given the potential breadth and scope of the rule or
rules associated with the eleven petitions. The Agency would be able to
reach a broader audience through other means than it would using the
negotiated rulemaking procedure. For example, we could conduct
stakeholder meetings prior to the proposal of a rule to solicit early
feedback and additional information from stakeholders directly; using a
negotiated rulemaking committee could limit the feedback EPA receives
to members of the negotiated rulemaking committee, and because the
procedure favors nominating individuals to represent certain interests,
the procedure could result in failing to capture the nuances of
similarly situated but not identical interests. In addition, the Agency
views the regular notice-and-comment rulemaking process on its own as
providing robust public engagement avenues that will allow for all
interested stakeholders to provide input and represent their interests
to EPA. Based on these considerations, the Agency has decided not to
use a negotiated rulemaking procedure for the rule or rules associated
with the eleven petitions under subsection (i) of the AIM Act.
Michael S. Regan,
Administrator.
[FR Doc. 2021-28281 Filed 12-28-21; 8:45 am]
BILLING CODE 6560-50-P
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