[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Notices]
[Pages 74080-74082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: [email protected]. You may also visit EPA's website at 
https://www.epa.gov/climate-hfcs-reduction 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).1 2 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 https://ww2.arb.ca.gov/our-work/programs/hfc-reduction-measures/rulemaking.
    \8\ See, for example, the Association of Home Appliance 
Manufacturers and the Air Conditioning, Heating, and Refrigeration 
Institute petitions, available at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0005 and https://www.regulations.gov/document/EPA-HQ-OAR-2021-0289-0012, 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 https://www.regulations.gov/comment/EPA-HQ-OAR-2021-0289-0043.
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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 www.regulations.gov, 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