[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)]
[Rules and Regulations]
[Pages 18431-18436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08310]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2003-0118; FRL-9977-05-OAR]


Protection of Stratospheric Ozone: Notification of Guidance and a 
Stakeholder Meeting Concerning the Significant New Alternatives Policy 
(SNAP) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of guidance and stakeholder meeting.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is providing 
this document to dispel confusion and provide regulatory certainty for 
stakeholders affected by EPA's Significant New Alternatives Policy 
program final rule issued on July 20, 2015, and the decision of the 
Court of Appeals for the District of Columbia Circuit in the case of 
Mexichem Fluor, Inc. v. EPA. The 2015 Rule changed the listings for 
certain hydrofluorocarbons in various end-uses in the aerosols, 
refrigeration and air conditioning, and foam blowing sectors. It also 
changed the listings for certain hydrochlorofluorocarbons being phased 
out of production under the Montreal Protocol on Substances that 
Deplete the Ozone Layer and section 605 of the Clean Air Act. The court 
vacated the 2015 Rule ``to the extent it requires manufacturers to 
replace HFCs with a substitute substance'' and remanded the rule to EPA 
for further proceedings. This document provides guidance to 
stakeholders that, based on the court's partial vacatur, in the near-
term EPA will not apply the HFC listings in the 2015 Rule, pending a 
rulemaking. This document also provides the Agency's plan to begin a 
notice-and-comment rulemaking process to address the remand of the 2015 
Rule. The Agency is also providing notice of a stakeholder meeting as 
part of the rulemaking process.

DATES: EPA will hold a stakeholder meeting on May 4, 2018 to enable 
stakeholders to provide input as the Agency prepares to engage in 
rulemaking to address the court's remand of the 2015 Rule. The meeting 
will be held at 9:30 a.m. to 12:30 p.m. ET on Friday, May 4, 2018 at 
EPA, William Jefferson Clinton East Building, Room 1153, 1201 
Constitution Avenue NW, Washington, DC 20004. Information concerning 
this meeting will be available on the EPA website: https://www.epa.gov/snap. Please RSVP for this meeting by contacting Chenise Farquharson at 
[email protected] by April 27, 2018.

FOR FURTHER INFORMATION CONTACT: Chenise Farquharson, Stratospheric 
Protection Division, (6205T), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 
564-7768; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This document provides information related to the EPA's Significant 
New Alternatives Policy (SNAP) program final rule (2015 Rule) issued on 
July 20, 2015 (80 FR 42870), and the decision of the Court of Appeals 
for the District of Columbia Circuit in the case of Mexichem Fluor, 
Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017). The 2015 Rule changed the 
listings for certain hydrofluorocarbons (HFCs) in various end-uses in 
the aerosols, refrigeration and air conditioning, and foam blowing 
sectors. The listings were changed from acceptable, or acceptable 
subject to use conditions, to unacceptable, or acceptable subject to 
narrowed use limits (i.e., acceptable only for limited uses for a 
specified period of time). The 2015 Rule also changed the listings for 
certain hydrochlorofluorocarbons (HCFCs) being phased out of production 
under the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol) and section 605 of the Clean Air Act (CAA). The 
court vacated the 2015 Rule ``to the extent it requires manufacturers 
to replace HFCs with a substitute substance'' and remanded the rule to 
EPA for further proceedings.
    Through this document, EPA is taking three actions in response to 
the court's decision: (1) Providing guidance to stakeholders on how EPA 
will implement the court's partial vacatur of the 2015 Rule in the near 
term, pending a rulemaking; (2) providing information on the Agency's 
plan to address the court's remand of the 2015 Rule through rulemaking; 
and (3) providing notice of a stakeholder meeting to help inform the 
Agency as it begins developing a

[[Page 18432]]

proposed rule in response to the court's remand. EPA is issuing 
guidance to dispel confusion and provide regulatory certainty in the 
near term for users in the refrigeration and air conditioning, foam 
blowing and aerosol end-uses affected by the HFC listing changes in the 
2015 Rule; thus, this document may be of interest to the following:

     TABLE 1--Potentially Regulated Entities by North American Industrial Classification System (NAICS) Code
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                   Category                      NAICS code            Description of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry.....................................          238220  Plumbing, Heating, and Air Conditioning
                                                                Contractors.
Industry.....................................          324191  Petroleum Lubricating Oil and Grease
                                                                Manufacturing.
Industry.....................................          325199  All Other Basic Organic Chemical Manufacturing.
Industry.....................................          325412  Pharmaceutical Preparation Manufacturing.
Industry.....................................          325510  Paint and Coating Manufacturing.
Industry.....................................          325520  Adhesive Manufacturing.
Industry.....................................          325612  Polishes and Other Sanitation Goods.
Industry.....................................          325620  Toilet Preparation Manufacturing.
Industry.....................................          325998  All Other Misscellaneous Chemical Product and
                                                                Preparation Manufacturing.
Industry.....................................          326140  Polystyrene Foam Product Manufacturing.
Industry.....................................          326150  Urethane and Other Foam Product (except
                                                                Polystyrene) Manufacturing.
Industry.....................................          333415  Air Conditioning and Warm Air Heating Equipment
                                                                and Commerial and Industrial Refrigeration
                                                                Equipment Manufacturing.
Industry.....................................          336211  Motor Vehicle Body Manufacturing.
Industry.....................................            3363  Motor Vehicle Parts Manufacturing.
Industry.....................................          336611  Ship Building and Repairing.
Industry.....................................          336612  Boat Building.
Industry.....................................          339113  Surgical Appliance and Supplies Manufacturing.
Retail.......................................          423620  Household Appliances, Electric Housewares, and
                                                                Consumer Electronics Merchant Wholesalers.
Retail.......................................          423740  Refrigeration Equipment and Supplies Merchant
                                                                Wholesalers.
Retail.......................................           44511  Supermarkets and Other Grocery (except
                                                                Convenience) Stores.
Retail.......................................          445110  Supermarkets and Other Grocery (except
                                                                Convenience) Stores.
Retail.......................................          445120  Convenience Stores.
Retail.......................................           44521  Meat Markets.
Retail.......................................           44522  Fish and Seafood Markets.
Retail.......................................           44523  Fruit and Vegetable Markets.
Retail.......................................          445291  Baked Goods Stores.
Retail.......................................          445292  Confectionary and Nut Stores.
Retail.......................................          445299  All Other Specialty Foods Stores.
Retail.......................................            4453  Beer, Wine, and Liqour Stores.
Retail.......................................          446110  Pharmacies and Drug Stores.
Retail.......................................           44711  Gasoline Stations with Convenience Stores.
Retail.......................................          452910  Warehouse Clubs and Supercenters.
Retail.......................................          452990  All Other General Merchandise Stores.
Services.....................................           72111  Hotels (except Casino Hotels) and Motels.
Services.....................................           72112  Casino Hotels.
Retail.......................................           72241  Drinking Places (Alcoholic Beverages).
Retail.......................................          722513  Limited-Service Restaurants.
Retail.......................................          722514  Cafeterias, Grill Buffets, and Buffets.
Retail.......................................          722515  Snack and Nonalcoholic Beverage Bars.
----------------------------------------------------------------------------------------------------------------

    This list is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be interested in this 
document.

B. How can I get copies of this document and other related material?

    1. Docket. EPA has not established a new docket for this document. 
Publicly available information on the related 2015 Rule can be found 
under Docket ID No. EPA-HQ-OAR-2014-0198. Publicly available docket 
materials are available either electronically through https://www.regulations.gov or in hard copy at the Air and Radiation Docket in 
the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution 
Ave. NW, Washington, DC. The EPA Docket Center 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 and Radiation 
Docket is (202) 566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the ``Federal 
Register'' listings at FDSys (https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

II. How is EPA responding to the court's decision on the July 2015 SNAP 
final rule?

    Through this document, EPA is taking three actions in response to 
the court's decision: (1) Providing guidance to stakeholders on how EPA 
will implement the court's partial vacatur of the 2015 Rule in the near 
term, pending a rulemaking; (2) providing information on the Agency's 
plan to address the court's remand of the 2015 Rule through rulemaking; 
and (3) providing notice of a stakeholder meeting to help inform the 
Agency as it begins developing a proposed rule in response to the 
court's remand. As previously mentioned, EPA is issuing this guidance 
to dispel confusion and provide regulatory certainty in the near term 
for users in the refrigeration and air conditioning, foam blowing and 
aerosol end-uses affected by the HFC listing changes in the 2015 Rule. 
Specifically, until EPA completes a rulemaking addressing the remand, 
EPA will not apply the HFC listings in the 2015 Rule. While this 
guidance is intended to provide a clear statement of EPA's 
understanding of the

[[Page 18433]]

court's vacatur in Mexichem, it is not intended to represent a 
definitive or final statement by the Agency on the court's decision as 
a whole. In fact, EPA anticipates that its actions in response to the 
decision will be informed by input from stakeholders and the notice-
and-comment rulemaking process that will address the court's remand.

A. Background

    The SNAP program implements section 612 of the Clean Air Act. 
Several major provisions of section 612 are:
1. Rulemaking
    Section 612(c) requires EPA to promulgate rules making it unlawful 
to replace any class I (chlorofluorocarbon, halon, carbon 
tetrachloride, methyl chloroform, methyl bromide, 
hydrobromofluorocarbon, and chlorobromomethane) or class II (HCFC) 
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.
2. Listing of Unacceptable/Acceptable Substitutes
    Section 612(c) requires EPA to publish a list of the substitutes 
that it finds to be unacceptable for specific uses and to publish a 
corresponding list of acceptable substitutes for specific uses.
3. Petition Process
    Section 612(d) grants the right to any person to petition EPA to 
add a substance to, or delete a substance from, the lists published in 
accordance with section 612(c).
4. 90-Day Notification
    Section 612(e) directs EPA to require any person who produces a 
chemical substitute for a class I substance to notify the Agency 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 the Agency with the 
producer's unpublished health and safety studies on such substitutes.
    In 1994, EPA published a rule setting forth the framework for 
administering the SNAP program (``1994 Framework Rule'') (59 FR 13044; 
March 18, 1994). Among other things, that rule established prohibitions 
on use of substitutes inconsistent with the SNAP listings, including a 
prohibition stating that ``[n]o person may use a substitute after the 
effective date of any rulemaking adding such substitute to the list of 
unacceptable substitutes.'' 40 CFR 82.174. The 1994 Framework Rule 
defined ``use'' broadly as ``any use of a substitute for a Class 1 or 
Class II ozone-depleting compound, including but not limited to use in 
a manufacturing process or product, in consumption by the end-user, or 
in intermediate uses, such as formulation or packaging for other 
subsequent uses.'' 40 CFR 82.172. Thus, for example, use encompasses 
not only the manufacture of equipment with a substitute, such as the 
manufacture of a foam-blowing system; it also includes the use of that 
foam system to blow the foam into another product, such as foam 
cushions, or to blow the foam as insulation in a building. EPA issued 
its initial listing decisions as part of the 1994 Framework Rule and 
has continued to list substitutes. The lists of fully acceptable 
substitutes are not included in the CFR but instead are available at 
https://www.epa.gov/snap/snap-substitutes-sector. All other listing 
decisions (i.e., unacceptable or with restrictions on use) are 
contained in tables provided in appendices to EPA's SNAP regulations 
(40 CFR part 82 subpart G). There are separate tables for each of the 
major industrial use sectors, including adhesives, coatings and inks; 
aerosols; cleaning solvents; fire suppression and explosion protection; 
foam blowing agents; refrigeration and air conditioning; and 
sterilants, as well as separate tables for each type of listing: 
acceptable with use conditions, acceptable subject to narrowed use 
limits or unacceptable.
    The 1994 Framework Rule, as implemented by EPA, has applied to all 
users (e.g., product manufacturers, intermediate users, end-users) 
within a regulated end-use without making distinctions between product 
manufacturers and other users or between those who were using ozone-
depleting substances (ODS) at the time a substitute was listed as 
unacceptable and those who were not. The 2015 Rule, like all other 
actions EPA has taken implementing the 1994 Framework Rule over the 
last quarter-century, also made no such distinctions. It simply changed 
the listings for various previously listed substitutes.

B. How is EPA implementing the court's partial vacatur of the 2015 Rule 
in the near term, pending rulemaking?

    In Mexichem Fluor v. EPA, the court ``vacate[d] the 2015 Rule to 
the extent it requires manufacturers to replace HFCs with a substitute 
substance.'' 866 F.3d at 464. For the reasons explained below, EPA will 
not apply the HFC use restrictions or unacceptability listings in the 
2015 Rule for any purpose prior to completion of rulemaking. EPA's 
implementation of the court's vacatur pending rulemaking is intended to 
dispel confusion and provide regulatory certainty in the near term for 
users in the refrigeration and air conditioning, foam blowing and 
aerosol end-uses affected by the HFC listing changes in the 2015 Rule.
    Two chemical suppliers, Arkema and Mexichem (Petitioners), 
challenged the portion of the 2015 Rule that removed the listings of 
certain HFCs as acceptable, or acceptable subject to use conditions in 
certain end-uses, and listed those HFCs as unacceptable, or acceptable 
subject to narrowed use limits, in the same end-uses. The Petitioners 
raised two central arguments. First, they claimed that EPA did not have 
the authority to require that users of HFCs switch to another 
alternative. Second, they challenged the various listing decisions as 
``arbitrary and capricious.'' The court rejected the Petitioners' 
arbitrary and capricious challenges but ruled that EPA did not have 
authority to ``require manufacturers to replace HFCs with a substitute 
substance.'' Id. at 464. The court determined that the word ``replace'' 
as used in CAA section 612(c) applies only to the immediate replacement 
of an ODS, stating that ``manufacturers `replace' an ozone-depleting 
substance when they transition to making the same product with a 
substitute substance. After that transition has occurred, the 
replacement has been effectuated, and the manufacturer no longer makes 
a product that uses an ozone-depleting substance.'' Id. at 459. 
Although the court's decision mainly discusses manufacturers, footnote 
1 of the court's opinion indicates that ``[the court's] interpretation 
of Section 612 applies to any regulated parties that must replace 
ozone-depleting substances within the timelines specified by Title 
VI.'' \1\ Id. at 457.
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    \1\ Section 612(c) provides that ``the Administrator shall 
promulgate rules under this section providing that it shall be 
unlawful to replace any class I or class II substance with any 
substitute substance'' where the Administrator determines that a 
safer alternative is available.
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    The language of the vacatur refers to ``manufacturers'' and to the 
replacement of HFCs. The opinion appears to use the term 
``manufacturers'' in the sense of ``product manufacturers.'' See Id. at 
460.\2\ However, nothing in the

[[Page 18434]]

regulatory language promulgated as part of the challenged 2015 Rule 
draws a distinction between product manufacturers and other users of 
substitutes.\3\ Nor does the 2015 Rule draw a distinction between 
persons using HFCs and those using an ODS. The regulatory text included 
in the 2015 Rule is comprised solely of tables listing EPA's decision 
on certain substitutes for specific end-uses. Similarly, the 1994 
Framework Rule distinguishes neither between product manufacturers and 
other users nor between someone using an HFC and someone using an ODS. 
For each specified end-use, the 2015 Rule, as issued, in conjunction 
with the 1994 Framework Rule, would prohibit any user from using a 
substitute listed as unacceptable--or from using, without adhering to 
narrowed use limits, a substitute listed as acceptable subject to such 
limits--after the relevant date. Thus, the SNAP regulations as 
currently written do not provide the distinctions that would be 
necessary to accommodate the letter of the court's vacatur. The 
narrower language used by the court does not exist in either the 2015 
Rule or the 1994 Framework Rule; nor do the distinctions discussed 
above emerge when those two rules are read together.
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    \2\ While ``product'' is not defined in the SNAP regulations, 
other portions of EPA's stratospheric protection regulations 
distinguish between ``products'' and ``substances.'' See, e.g, the 
definition of ``controlled substance'' at 40 CFR 82.3; the 
definitions of ``product containing'' and ``manufactured with a 
controlled substance'' at 40 CFR 82.106,
    \3\ Under the 1994 Framework Rule, EPA defined manufacturer as 
``any person engaged in the direct manufacture of a substitute.'' 40 
CFR 82.172. SNAP listing decisions, such as those at issue in the 
2015 Rule, do not apply to manufacturers of the substitute but 
rather to the subsequent use of that substitute in a product or 
process or other use.
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    The regulatory tables, which are the only regulatory text 
promulgated in the 2015 Rule, are comprised of individual listing 
decisions. Each listing of a substitute is comprised of at least four 
columns of information. The first column lists the regulated end-use, 
such as ``Retail food refrigeration (supermarket systems) (new)'' or 
``Rigid Polyurethane [Foam]: Appliance.'' The second column lists the 
substitute or substitutes to which the listing decision applies. The 
third column identifies the ``decision'' (``Unacceptable'' or 
``Acceptable subject to narrowed use limits'') and also identifies the 
date on which the listing decision will apply. The final column 
provides ``Further information.'' Each listing of a substitute as 
acceptable subject to narrowed use limits contains an additional column 
identifying the ``Narrowed use limits.'' This column identifies the 
limited uses for which the substitute remains acceptable for use (e.g., 
``military or space- and aeronautics-related applications'' and the 
time period for which use remains acceptable (e.g., ``Acceptable from 
January 1, 2017, until January 1, 2022''). Thus, for each listing 
decision there is no language that could be understood as being removed 
or struck out by the court so that some portion of the listing decision 
would remain in effect pending EPA's action on remand.
    While EPA could, on remand, rewrite the individual listings to 
create sub-listings for different types of users--e.g., separating out 
manufacturers, or separating out those still using ODS--such additions 
to the 2015 Rule would require notice-and-comment rulemaking. This 
situation contrasts with those where a court decision affects specific 
regulatory language, striking some of that language while leaving the 
remainder untouched. Here, there is simply no regulatory language that 
can be parsed in that manner. Nor is waiting to address the court's 
vacatur until the agency can complete notice-and-comment rulemaking a 
satisfactory solution. The court clearly intended to vacate the 2015 
Rule to some ``extent.'' The mandate has issued; accordingly, the 
court's decision is now in effect.
    In addition, EPA is aware that regulated entities are experiencing 
substantial confusion and uncertainty regarding the meaning of the 
vacatur in a variety of specific situations. Since the court mandate 
issued, EPA has received a significant number of inquiries from 
equipment manufacturers, refrigerant producers, and various other 
users. Some have asked general questions regarding the effect of the 
partial vacatur of the 2015 Rule, while others have asked more specific 
questions about compliance both for those end-uses for which the 
compliance dates have passed and for those for which there is a future 
compliance date. For those end-uses with future compliance dates, these 
users are seeking guidance to help them make plans for future 
operations; if these users of HFCs would not be able to continue such 
use, they may need to take steps well in advance of the compliance 
date, such as researching and developing revised foam formulations; 
retooling manufacturing facilities; testing updated equipment or 
products to be certified to industry standards; and achieving 
compliance with fire codes. Other stakeholders have expressed confusion 
in understanding how the partial vacatur affects particular types of 
equipment that might fall under multiple end-uses, such as a stand-
alone commercial refrigerator with foam insulation. Deferring answers 
to stakeholder questions until the completion of rulemaking would 
ignore the practical realities faced by the business community.
    In addition, attempting to draw the distinctions made by the court 
would present practical difficulties for implementation in advance of 
rulemaking. First, the SNAP regulations do not address what constitutes 
product manufacture. EPA went through a full notice-and-comment 
rulemaking to address that issue with respect to appliances for the 
purpose of regulations implementing the HCFC phaseout under section 605 
of the Clean Air Act. See, e.g., ``Protection of Stratospheric Ozone: 
Adjustments to the Allowance System for Controlling HCFC Production, 
Import, and Export,'' 74 FR 66439-66441 (Dec. 15, 2009). In that 
rulemaking, EPA recognized that while some appliances are shipped fully 
assembled and charged, others are assembled or charged in the field. 
With respect to the latter, there was ambiguity as to the point of 
manufacture and the identity of the manufacturer. EPA provided a 
definition to resolve that ambiguity in the context of those 
regulations. Without a clear definition of product manufacture in the 
SNAP context, there may be considerable ambiguity about who is the 
``manufacturer'' for certain products--for example, supermarket 
refrigeration systems--and resulting confusion about the impacts of the 
court's decision.
    Moreover, in footnote 1 of the decision, the court indicates that 
the interpretation it adopts in the decision ``applies to any regulated 
parties that must replace ozone-depleting substances.'' This appears to 
extend the court's holding to apply to any user subject to the HFC 
listing changes, and not simply manufacturers. 866 F.3d at 457 
(emphasis added). Implementing the vacatur more narrowly in the near 
term would not only raise practical implementation difficulties but 
likely would be inconsistent with the court's language in footnote 1.
    Second, neither the 1994 Framework Rule nor the 2015 Rule addresses 
the date by which a manufacturer must have switched to an HFC in order 
to avoid being subject to the 2015 Rule listing decisions. Possible 
dates could include the effective date of the 2015 Rule; the 
applicability date of the specific listing change; or the date on which 
the court's mandate issued. This lack of clarity could result in 
confusion about whether or not the listings in the 2015 Rule apply to 
individual manufacturers. Even if there were a clear date that would 
govern, there are currently no requirements for manufacturers to 
document the date of

[[Page 18435]]

a change to an HFC; this lack of documentation would hinder the 
agency's ability to implement the rule as envisioned in the court's 
opinion, because it would not know whether or on what date 
manufacturers had made the switch.
    Third, because neither the 1994 Framework Rule nor the 2015 Rule 
creates a distinction between users using ODS and those using 
substitutes, neither rule addresses more complex situations in which 
both types of substances may be in use. Specifically, many 
manufacturers own multiple facilities, have multiple production lines 
at a single facility, make multiple different products or product 
models, or make products that can operate with either an ODS or a 
substitute. For example, a manufacturer of supermarket refrigeration 
equipment currently produces new equipment designed to operate with HFC 
blends or other non-ODS refrigerants and may assist its customers with 
retrofitting or replacing parts of existing supermarket systems using 
HCFC-22 or HCFC blends. Future rulemaking could address the numerous 
questions raised by these more complex situations--e.g., has a 
manufacturer switched to an HFC if one of multiple facilities is using 
an HFC or if one of multiple product lines is using an HFC? 
Alternatively, can the same manufacturer be considered to not yet have 
switched to HFCs if it still uses ODS in some of its facilities or 
product lines? Because the rules as written do not resolve these 
issues, there is no practical way to address these questions at this 
time.
    EPA recognizes that the court vacated the 2015 Rule ``to the extent 
that'' it requires manufacturers to replace HFCs. Based on its 
expertise in administering the SNAP regulations, and its understanding 
of the 2015 Rule, EPA concludes that the vacatur cannot be implemented 
by treating specific language in the HFC listings as struck by the 
court. Rather, the listing of HFC's as unacceptable, or acceptable 
subject to use restrictions, is the means by which the 2015 Rule 
``require[d] manufacturers to replace HFCs with a substitute 
substance.'' Vacating the 2015 Rule ``to the extent'' that it imposed 
that requirement means vacating the listings. To apply the court's 
holding otherwise would be to drastically rewrite the 2015 Rule, and 
EPA believes that it would not be appropriate to undertake such a 
rewrite without undergoing notice and comment rulemaking. As explained 
above, those entities that have historically been regulated under the 
SNAP program are uncertain about what the court's decision means and 
which actions remain subject to regulation and which do not; the agency 
cannot remain silent on the implications of the court's vacatur until 
such time as the agency can complete a notice-and-comment rulemaking 
because of the considerable confusion and need for certainty that 
currently exist. Each HFC listing, as a unit, ``requires manufacturers 
to replace HFCs with a substitute substance.'' EPA therefore will 
implement the vacatur as affecting each HFC listing change in its 
entirety pending rulemaking to address the remand. Thus, EPA will not 
apply the HFC use restrictions or unacceptability listings in the 2015 
Rule for any purpose prior to completion of rulemaking. Although EPA 
will implement the court's vacatur by treating it as striking the HFC 
listing changes in the 2015 Rule in their entirety, EPA recognizes that 
the court rejected the arbitrary and capricious challenges to the HFC 
listing changes. On remand, EPA intends to consider the appropriate way 
to address HFC listings under the SNAP program in light of the court's 
opinion.
    The 2015 Rule also contains HCFC listings that were not challenged 
by the Petitioners and that were not addressed by the court in 
Mexichem. Because those provisions were not challenged and were not 
addressed by the court, and because those listing decisions are 
severable from the HFC listings, we are choosing in the near term to 
continue upholding these provisions as remaining in effect. Each of the 
HCFC listings is a distinct unit, just as each of the HFC listings is a 
distinct unit. Indeed, the severability of the specific listings from 
each other contrasts with the non-severability of the particular 
effects of the rule on manufacturers singled out by the court in the 
narrower phrasing of its holding--another reason why EPA believes that 
footnote 1 of the opinion extends that holding to all users, in keeping 
with the structure of the regulations.

C. What are EPA's plans for a rulemaking to address the court's remand?

    In Mexichem Fluor v. EPA, the court remanded the 2015 Rule to the 
Agency for further proceedings. While in this document EPA provides 
guidance on the effect of the vacatur on the 2015 Rule to address the 
immediate uncertainty, the larger implications of the court's opinion 
remanding the rule to the agency require further consideration. To 
address the court's remand, EPA will move forward with a notice-and-
comment rulemaking and will seek input from interested stakeholders 
prior to developing a proposed rule.
    The court's interpretation of CAA section 612 raises potentially 
complex and difficult implementation questions for the SNAP program. 
EPA may consider the following as it prepares to undertake notice-and-
comment rulemaking:
     On remand, whether EPA should revisit specific provisions 
of the 1994 Framework Rule, such as those noted below, to establish 
distinctions between users still using ODS and those who have already 
replaced ODS:
    [cir] The regulatory prohibitions (40 CFR 82.174) on use and 
introduction into interstate commerce
    [cir] the notification requirements in the applicability section 
(40 CFR 82.176)
    [cir] specific definitions, for example, the definitions of 
``substitute'' and ``use'' (40 CFR 82.172). The current definition of 
``substitute'' is ``. . . any chemical, product substitute, or 
alternative manufacturing process, whether existing or new, intended 
for use as a replacement for a class I or II compound.'' The current 
definition of ``use'' is ``. . . any use of a substitute for a Class I 
or Class II ozone-depleting compound, including but not limited to use 
in a manufacturing process or product, in consumption by the end-user, 
or in intermediate uses, such as formulation or packaging for other 
subsequent uses.''
     Whether EPA should revisit its practice of listing 
substitutes as acceptable subject to use conditions. Such listings 
allow the substitutes to be used only if certain conditions are met to 
ensure risks to human health and the environment are not significantly 
greater than for other available substitutes. For example, EPA has 
established use conditions for certain refrigerants to address 
flammability concerns across the same refrigeration end-uses. If use 
conditions would only apply to users switching from an ODS, EPA may 
consider whether to continue to list substitutes as acceptable subject 
to use conditions, given that some users would not be required to abide 
by the use conditions.
     Whether EPA should distinguish between product 
manufacturers and other users, and if so, how EPA should address 
ambiguity about who is the manufacturer of certain products, such as 
those that are field-assembled or field-charged.
     Whether EPA should revisit the regulations' applicability 
to certain end users. Historically, the SNAP program has applied to all 
users within an end-use, whether a product manufacturer, a servicing 
technician, or an end user of

[[Page 18436]]

a substitute. For many end-uses, the end users have been able to rely 
on product manufacturers' compliance with the SNAP listings. EPA may 
consider how it should address the heavier burden that might fall on 
end users, who in some cases may be less familiar with EPA's 
regulations, in cases where product manufacturers may be making some 
products that an end user still using an ODS may not be able to 
purchase and use. EPA may also consider whether that heavier burden 
means that EPA should not apply the regulations to those end users.
     Whether EPA should clarify when the replacement of an ODS 
occurs: e.g., on a facility-by-facility basis, or on a product-by-
product basis. EPA may also consider whether to propose recordkeeping 
and reporting requirements to document when a user has transitioned to 
using a non-ODS.
    This list of considerations is not intended to be exhaustive, but 
rather provides an indication of the areas of initial thinking. The 
court also mentioned other possible approaches to regulation that the 
Agency could consider on remand. These include whether EPA may be able 
to use ``retroactive disapproval'' to revise an earlier determination 
where faced with new developments or in light of reconsideration of the 
relevant facts. In addition, the court mentioned other authorities EPA 
could consider to regulate substitutes for class I and class II ODS, 
such as the Toxic Substances Control Act (TSCA) and a number of CAA 
authorities, including the National Ambient Air Quality Standards 
(NAAQS) program, the Hazardous Air Pollutants (HAP) program, the 
Prevention of Significant Deterioration (PSD) program, and emission 
standards for motor vehicles. EPA would be interested in any thoughts 
stakeholders may have on the viability and desirability of these 
approaches.
    EPA appreciates there is interest from a wide variety of 
stakeholders in the development of a rule to address the court's 
decision on remand. Therefore, as an initial step, and as provided in 
more detail in the section below, EPA is providing notice of a 
stakeholder meeting. The purpose of sharing the Agency's preliminary 
considerations at this time is to provide a more specific roadmap to 
facilitate and focus the further input of our individual stakeholders. 
By laying out considerations raised by the court remand and its near-
term plans, EPA seeks to work with stakeholders to continue to gather 
and exchange information that can assist the Agency as it begins to 
develop a proposed rule to address the court's remand of the 2015 Rule.

D. What are EPA's plans for a stakeholder meeting?

    As indicated in the above DATES section, EPA will hold a 
stakeholder meeting on Friday, May 4, 2018, in Washington, DC from 9:30 
a.m. to 12:30 p.m. to allow interested parties to provide input on what 
the Agency should consider as it begins developing a proposed rule in 
response to the court's remand of the 2015 Rule. Please follow the 
instructions provided to RSVP for this meeting as specified above in 
the DATES section of this document. Additional information concerning 
this stakeholder meeting will be available on the EPA website: https://www.epa.gov/snap.

    Dated: April 13, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-08310 Filed 4-26-18; 8:45 am]
 BILLING CODE 6560-50-P


