Proposed Rule2023-06334
Notification of Determination: Petitions Denied Under Subsection (i) of the American Innovation and Manufacturing Act of 2020
Primary source
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Published
April 11, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The purpose of this notification is to alert the public to and provide explanation of the Environmental Protection Agency's (EPA) decisions to deny two petitions submitted under the American Innovation and Manufacturing Act of 2020. The first petition requests that the Environmental Protection Agency provide an exemption for the use of certain regulated substances in pain relief sprays and the second petition requests that the Agency subject gas canisters of certain regulated substances to import restrictions established under the HFC Allocation Framework Rule. These petitions were submitted to the Agency pursuant to its authority under the Act to promulgate rules that restrict, fully, partially, or on a graduated schedule, the use of a regulated substance in the sector or subsector in which the regulated substance is used.
Full Text
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<title>Federal Register, Volume 88 Issue 69 (Tuesday, April 11, 2023)</title>
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[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Proposed Rules]
[Pages 21579-21580]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06334]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 84
[EPA-HQ-OAR-2021-0289; FRL-10805-01-OAR]
Notification of Determination: Petitions Denied Under Subsection
(i) of the American Innovation and Manufacturing Act of 2020
AGENCY: Environmental Protection Agency (EPA).
ACTION: Petition denials.
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SUMMARY: The purpose of this notification is to alert the public to and
provide explanation of the Environmental Protection Agency's (EPA)
decisions to deny two petitions submitted under the American Innovation
and Manufacturing Act of 2020. The first petition requests that the
Environmental Protection Agency provide an exemption for the use of
certain regulated substances in pain relief sprays and the second
petition requests that the Agency subject gas canisters of certain
regulated substances to import restrictions established under the HFC
Allocation Framework Rule. These petitions were submitted to the Agency
pursuant to its authority under the Act to promulgate rules that
restrict, fully, partially, or on a graduated schedule, the use of a
regulated substance in the sector or subsector in which the regulated
substance is used.
DATES: EPA denied the two petitions referenced in this notification via
letters signed on March 21, 2023. Any petitions for review of the final
letters denying the petitions for rulemaking must be filed in the Court
of Appeals for the appropriate circuit on or before June 12, 2023.
FOR FURTHER INFORMATION CONTACT: Allison Cain, Stratospheric Protection
Division, Office of Atmospheric Programs (6205A), Environmental
Protection Agency, telephone number: 202-564-1566; email address:
<a href="/cdn-cgi/l/email-protection#3457555d5a1a5558585d475b5a745144551a535b42"><span class="__cf_email__" data-cfemail="f390929a9ddd929f9f9a809c9db3968392dd949c85">[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
Subsection (i) of the American Innovation and Manufacturing Act of
2020 (AIM Act or the Act),\1\ entitled ``Technology Transitions,''
provides that the Administrator may by rule restrict, fully, partially,
or on a graduated schedule, the use of a regulated substance in the
sector or subsector in which the regulated substance is used. Under
subsection (i)(3) a person may petition the Environmental Protection
Agency (EPA) to promulgate a rule for the restriction on the use of a
regulated substance \2\ in a sector or subsector, and the Act states
that the petition shall include a request that the Administrator
negotiate with stakeholders in accordance with subsection (i)(2)(A).
Once EPA receives a petition, the AIM Act directs the Agency to make
petitions publicly available within 30 days of receipt and to grant or
deny the petition within 180 days of receipt. If the EPA denies a
petition, the Agency shall publish in the Federal Register an
explanation of the denial.
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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), and is codified at 42 U.S.C. 7675.
\2\ The Act provides that ``regulated substance'' refers to
those substances included in the list of regulated substances 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
hydrofluorocarbons (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. Which petitions is EPA denying?
The Agency received two petitions that were submitted under
subsection (i) of the AIM Act. The first petition requests that the
Environmental Protection Agency provide an exemption for the use of
certain regulated substances in pain relief sprays and the second
petition requests that the Agency subject gas canisters of certain
regulated substances to import restrictions established under the HFC
Allocation Framework Rule.\3\ These petitions were submitted by the
Gebauer Company (hereby, ``Gebauer'') on September 23, 2022, and A.V.W.
Inc (hereby, ``AVW'') on December 15, 2022, respectively. After
reviewing these petitions and considering, to the extent practicable in
light of the information provided in the submissions, the
[[Page 21580]]
``Factors for Determination'' in subsection (i)(4) of the AIM Act, EPA
denied the two petitions.\4\
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\3\ Links to copies of these petitions and other petitions
received to date can be found in the table at <a href="https://www.epa.gov/climate-hfcs-reduction/petitions-under-aim-act">https://www.epa.gov/climate-hfcs-reduction/petitions-under-aim-act</a>. EPA has a docket
(Docket ID EPA-HQ-OAR-2021-0289), where all subsection (i) petitions
are posted, and where the public may submit information related to
those petitions.
\4\ The letters denying the two petitions are available in the
docket for this action.
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The petition submitted by Gebauer sought an ``Acceptable Use
Exemption'' for HFC-245fa and HFC-134a for use as a ``pain relief
spray.'' The petition noted these HFCs are currently used by Gebauer to
formulate its FDA-cleared medical devices, which provide temporary pain
relief or pain prevention by cooling tissue surfaces. EPA explained in
its denial that after Gebauer's submitted its petition, the Agency
issued a proposed rule titled, ``Phasedown of Hydrofluorocarbons:
Restrictions on the Use of Certain Hydrofluorocarbons Under Subsection
(i) of the American Innovation and Manufacturing Act of 2020'' (87 FR
76738, December 15, 2022). This rule proposed restrictions on the use
of HFCs in aerosol products, among others, and specifically addressed
the need for an exemption for HFC use in ``pain relief sprays.''
Because EPA has already initiated a rulemaking that addresses the HFC
use covered in this petition, EPA denied the petition as moot. Granting
a petition initiates a rulemaking where the Agency will examine
restrictions on the use of HFCs covered by the petition. EPA is in the
process of assessing whether to allow for continued use of HFCs in
``pain relief sprays,'' factoring in, to the extent practicable, the
considerations provided in AIM Act subsection (i)(4), in the current
rulemaking. Initiating a new rulemaking on this question while the
current rulemaking is ongoing is therefore unnecessary. This denial
does not address the merits of the request submitted by Gebauer.\5\
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\5\ EPA notes the petition failed to satisfy the statutory
requirement to address negotiated rulemaking. See AIM Act subsection
(i)(3)(A).
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The petition submitted by AVW requested that EPA ``subject the
importation of small gas canisters containing 100% HFC-152a to the same
import regulations that govern bulk shipments of HFC-152a.'' As
explained in its denial, EPA already considered and decided the issue
of whether aerosol cans should be treated as bulk in the HFC Allocation
Framework Rule.\6\ Therefore, to the extent that this petition was a
request to alter how allowances are expended under that program, EPA
denied the petition on the basis that the request was not properly made
under subsection (i) of the AIM Act. Subsection (i) authorizes the EPA
to promulgate restrictions specific to uses of HFCs in particular
sectors and subsectors. The AVW petition referenced ``packaged
dusters'' as one use for EPA to restrict under subsection (i). The
December 15, 2022 proposed rule (87 FR 76738) proposed restrictions on
the use of HFCs in aerosol products, among others, and specifically
proposed restrictions on the use of dusters. Because EPA had already
initiated a rulemaking that addressed the use and sector requested by
the petition, EPA therefore also denied this aspect of the petition as
moot.\7\
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\6\ The HFC Allocation Framework Rule, also referred to as the
``Phasedown of Hydrofluorocarbons: Establishing the Allowance
Allocation and Trading Program Under the American Innovation and
Manufacturing Act,'' can be found in the Federal Register (86 FR
55116).
\7\ EPA notes the petition failed to satisfy the statutory
requirement to address negotiated rulemaking. See AIM Act subsection
(i)(3)(A).
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III. What happens after EPA denies a petition?
Where the Agency denies a petition submitted under subsection (i)
of the AIM Act, the statute requires that the Administrator shall
publish in the Federal Register an explanation of the denial per
subsection (i)(3)(C), which the Agency is doing through this
notification.
Judicial Review
The AIM Act provides that certain sections of the Clean Air Act
(CAA) ``shall apply to'' the AIM Act and actions ``promulgated by the
Administrator of [EPA] pursuant to [the AIM Act] as though [the AIM
Act] were expressly included in title VI of [the CAA].'' 42 U.S.C.
7675(k)(1)(C). Among the applicable sections of the CAA is section 307,
which includes provisions on judicial review. Under section 307(b)(1)
any petitions for review of these actions denying the petitions must be
filed in the United States Court of Appeals for the appropriate circuit
within 60 days from the date this notification is published in the
Federal Register.
Cynthia A. Newberg,
Director, Stratospheric Protection Division.
[FR Doc. 2023-06334 Filed 4-10-23; 8:45 am]
BILLING CODE 6560-50-P
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