1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
82
[
OAR­
2003­
0228,
FRL­
XXXX­
X]

[
RIN
2060­
AG12]

Protection
of
Stratospheric
Ozone;
Listing
of
Substitutes
in
the
Foam
Sector
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
Rule
SUMMARY:
Today
the
Environmental
Protection
Agency
(
EPA)
is
taking
final
action
to
change
the
listing
of
HCFC­
141b
from
acceptable
to
unacceptable
for
use
as
a
foam
blowing
agent
under
the
Significant
New
Alternatives
Policy
(
SNAP)
Program
under
section
612
of
the
Clean
Air
Act.

The
SNAP
program
reviews
alternatives
to
Class
I
and
Class
II
ozone
depleting
substances
and
approves
use
of
alternatives
which
reduce
the
overall
risk
to
public
health
and
the
environment.

On
July
11,
2000
EPA
issued
a
proposed
rule
concerning
the
use
of
several
hydrochlorofluorocarbons
(
HCFCs)
in
foam
blowing
applications.
On
July
22,
2002,
EPA
took
final
action
with
respect
to
a
number
of
the
HCFCs,
but
deferred
its
decision
on
changing
the
list
for
HCFC­
141b
in
foam
blowing
applications
due
to
the
pending
production
and
import
ban
of
HCFC­
141b
(
effective
as
of
January
1,
2003)
and
incomplete
information
regarding
the
technical
viability
of
alternatives.
Since
the
publication
of
that
final
rule,
EPA
received
information
from
outside
parties
through
letters,
meetings,
and
the
HCFC­
141b
Exemption
Allowance
Petition
process
(
68
FR
2819)
that
addresses
the
use
of
HCFC­
141b
in
foam
blowing
applications.
On
March
10,
2004,
EPA
issued
a
Notice
of
Data
Availability
(
NODA)
which
contained
the
new
information
mentioned
above
and
sought
comment
on
its
completeness
and
accuracy.
Today,
2
based
on
the
information
contained
in
the
NODA
and
the
comments
received
on
the
NODA,
EPA
is
making
its
final
decision
to
change
the
listing
for
use
of
HCFC­
141b
as
a
foam
blowing
agent
from
acceptable
to
unacceptable.

DATES:
This
rule
is
effective
on
[
Insert
date
60
days
after
Federal
Register
publication
date].

ADDRESSES:
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OAR­
2003­
0228
(
continuation
of
Docket
A­
2000­
18).
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,

confidential
business
information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute
is
not
publically
available.
Certain
other
material,
such
as
copyrighted
material,
is
also
listed
in
the
index
but
not
placed
on
the
Internet.
This
material
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
electronically
in
EDOCKET.

The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Air
and
Radiation
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
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
Reading
Room
is
(
202)
566­
1742,
and
the
telephone
number
for
the
Air
and
Radiation
Docket
is
(
202)
566­
1742.

FOR
FURTHER
INFORMATION:
Contact:
Suzie
Kocchi,
Stratospheric
Protection
Division,

Office
of
Atmospheric
Programs
(
6205J),
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
(
202)
343­
9387;
fax
number:
(
202)
343­

2363;
e­
mail
address:
kocchi.
suzanne@
epa.
gov.
The
published
versions
of
notices
and
3
rulemakings
under
the
SNAP
program
are
available
on
EPA's
Stratospheric
Ozone
website
at
www.
epa.
gov/
ozone/
snap/
regs.

SUPPLEMENTARY
INFORMATION:

TABLE
OF
CONTENTS:
This
action
is
divided
into
seven
sections:

I.
Regulated
Entities
II.
Section
612
Program
A.
Statutory
Requirements
B.
Regulatory
History
C.
Listing
Decisions
III.
Listing
Decision
on
HCFC­
141b
in
the
Foam
Sector
A.
Background
B.
Decision
IV.
Response
to
Comments
V.
Summary
VI.
Statutory
and
Executive
Order
Reviews
VII.
Additional
Information
I.
Regulated
Entities
Today's
rule
regulates
the
use
of
HCFC­
141b
as
a
foam
blowing
agent
used
in
the
manufacture
of
rigid
polyurethane/
polyisocyanurate
foam
products.
Businesses
that
currently
might
be
using
HCFC­
141b,
or
might
want
to
use
it
in
the
future,
include:

S
Businesses
that
manufacture
polyurethane/
polyisocyanurate
foam
systems
4
S
Businesses
that
use
polyurethane/
polyisocyanurate
systems
to
apply
insulation
to
buildings,
roofs,
pipes,
etc.

Table
1
lists
potentially
regulated
entities:

Table
1
 
Potentially
Regulated
Entities,
by
North
American
Industrial
Classification
System
(
NAICS)
Code
or
Subsector
Category
NAICS
code
or
subsector
Description
of
regulated
entities
Industry
326150
Urethane
and
Other
Foam
Product
(
except
Polystyrene)

Manufacturing
This
table
is
not
intended
to
be
exhaustive,
but
rather
a
guide
regarding
entities
likely
to
be
regulated
by
this
action.
If
you
have
any
questions
about
whether
this
action
applies
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
section,
"
FOR
FURTHER
INFORMATION."

II.
Section
612
Program
A.
Statutory
Requirements
Section
612
of
the
Clean
Air
Act
(
CAA)
requires
EPA
to
develop
a
program
for
evaluating
alternatives
to
ozone
depleting
substances
(
ODS).
EPA
refers
to
this
program
as
the
Significant
New
Alternatives
Policy
(
SNAP)
program.
The
major
provisions
of
section
612
are:


Rulemaking
 
Section
612(
c)
requires
EPA
to
promulgate
rules
making
it
unlawful
to
replace
any
class
I
(
chlorofluorocarbon,
halon,
carbon
tetrachloride,
methyl
chloroform,

methyl
bromide,
and
hydrobromofluorocarbon)
or
class
II
(
hydrochlorofluorocarbon)
5
substance
with
any
substitute
that
the
Administrator
determines
may
present
adverse
effects
to
human
health
or
the
environment
where
the
Administrator
has
identified
an
alternative
that
(
1)
reduces
the
overall
risk
to
human
health
and
the
environment,
and
(
2)

is
currently
or
potentially
available.


Listing
of
Unacceptable/
Acceptable
Substitutes­­
Section
612(
c)
also
requires
EPA
to
publish
a
list
of
the
substitutes
unacceptable
for
specific
uses.
EPA
must
publish
a
corresponding
list
of
acceptable
alternatives
for
specific
uses.


Petition
Process­­
Section
612(
d)
grants
the
right
to
any
person
to
petition
EPA
to
add
a
substitute
to
or
delete
a
substitute
from
the
lists
published
in
accordance
with
section
612(
c).
The
Agency
has
90
days
to
grant
or
deny
a
petition.
When
the
Agency
grants
a
petition,
EPA
must
publish
the
revised
lists
within
an
additional
six
months.


90­
day
Notification­­
Section
612(
e)
directs
EPA
to
require
any
person
who
produces
a
chemical
substitute
for
a
class
I
substance
to
notify
EPA
not
less
than
90
days
before
new
or
existing
chemicals
are
introduced
into
interstate
commerce
for
significant
new
uses
as
substitutes
for
a
class
I
substance.
The
producer
must
also
provide
EPA
with
the
producer's
health
and
safety
studies
on
such
substitutes.


Outreach­­
Section
612(
b)(
1)
states
that
the
Administrator
shall
seek
to
maximize
the
use
of
federal
research
facilities
and
resources
to
assist
users
of
class
I
and
II
substances
in
identifying
and
developing
alternatives
to
the
use
of
such
substances
in
key
commercial
applications.


Clearinghouse­­
Section
612(
b)(
4)
requires
the
Agency
to
set
up
a
public
clearinghouse
of
alternative
chemicals,
product
substitutes,
and
alternative
manufacturing
processes
that
are
6
available
for
products
and
manufacturing
processes
which
use
class
I
and
II
substances.

B.
Regulatory
History
On
March
18,
1994,
EPA
published
a
rule
(
59
FR
13044)
which
described
the
process
for
administering
the
SNAP
program
and
issued
EPA's
first
acceptability
lists
for
substitutes
in
the
major
industrial
use
sectors.
These
sectors
include:
refrigeration
and
air
conditioning,
foam
manufacturing,
solvents
cleaning,
fire
suppression
and
explosion
protection,
sterilants;
aerosols,

adhesives,
coatings
and
inks;
and
tobacco
expansion.
These
sectors
comprise
the
principal
industrial
sectors
that
historically
consumed
large
volumes
of
ozone­
depleting
compounds.

EPA
defines
a
"
substitute"
as
any
chemical,
product
substitute,
or
alternative
manufacturing
process,
whether
existing
or
new,
that
could
replace
a
class
I
or
class
II
substance
(
40
CFR
82.172).
Anyone
who
produces
a
substitute
must
provide
EPA
with
health
and
safety
studies
on
the
substitute
at
least
90
days
before
introducing
it
into
interstate
commerce
for
significant
new
use
as
an
alternative
(
40
CFR
82.174(
a)).
This
requirement
applies
to
chemical
manufacturers,
but
may
include
importers,
formulators,
or
end­
users
when
they
are
responsible
for
introducing
a
substitute
into
commerce.

C.
Listing
Decisions
Under
section
612,
EPA
has
considerable
discretion
in
the
risk
management
decisions
it
can
make
under
the
SNAP
program.
In
the
SNAP
rule,
the
Agency
identified
four
possible
decision
categories:
acceptable;
acceptable
subject
to
use
conditions;
acceptable
subject
to
narrowed
use
limits;
and
unacceptable
(
40
CFR
82.180(
b)).
Fully
acceptable
substitutes,
i.
e.,

those
with
no
restrictions,
can
be
used
for
all
applications
within
the
relevant
sector
end­
use.

After
reviewing
a
substitute,
EPA
may
make
a
determination
that
a
substitute
is
acceptable
7
only
if
certain
conditions
of
use
are
met
to
minimize
risk
to
human
health
and
the
environment.

Such
substitutes
are
described
as
"
acceptable
subject
to
use
conditions."

Even
though
EPA
can
restrict
the
use
of
a
substitute
based
on
the
potential
for
adverse
effects,
it
may
be
necessary
to
permit
a
narrowed
range
of
use
within
a
sector
end­
use
because
of
the
lack
of
alternatives
for
specialized
applications.
Users
intending
to
adopt
a
substitute
acceptable
with
narrowed
use
limits
must
first
ascertain
that
other
acceptable
alternatives
are
not
technically
feasible.
Companies
must
document
the
results
of
their
evaluation,
and
retain
the
results
on
file
for
the
purpose
of
demonstrating
compliance.
This
documentation
must
include
descriptions
of
substitutes
examined
and
rejected,
processes
or
products
in
which
the
substitute
is
needed,
reason
for
rejection
of
other
alternatives,
e.
g.,
performance,
technical
or
safety
standards,

and
the
anticipated
date
other
substitutes
will
be
available
and
projected
time
for
switching
to
other
available
substitutes.

It
is
a
violation
of
the
CAA
and
EPA's
SNAP
regulations
to
replace
an
ODS
with
a
substitute
listed
as
unacceptable
or
to
use
of
substitute
in
contravention
of
the
limits
set
by
a
use
condition
or
the
narrowed
use
limits
(
40
CFR
82.174).

EPA
does
not
believe
that
notice
and
comment
rulemaking
procedures
are
required
to
list
alternatives
as
acceptable
with
no
restrictions.
Such
listings
do
not
impose
any
sanction,
nor
do
they
remove
any
prior
license
to
use
a
substitute.
Consequently,
EPA
adds
substitutes
to
the
list
of
acceptable
alternatives
without
first
requesting
comment
on
new
listings
(
59
FR
13044).

Updates
to
the
acceptable
lists
are
published
as
separate
Notices
of
Acceptability
in
the
Federal
Register.

As
described
in
the
original
March
18,
1994
rule
for
the
SNAP
program
(
59
FR
13044),
1The
phaseout
schedule
was
established
on
December
10,
1993
(
58
FR
65018)
as
authorized
under
section
606
of
the
Clean
Air
Act.
8
EPA
believes
that
notice­
and­
comment
rulemaking
is
required
to
place
any
alternative
on
the
list
of
prohibited
substitutes,
to
list
a
substitute
as
acceptable
only
under
certain
use
conditions
or
narrowed
use
limits,
or
to
remove
an
alternative
from
either
the
list
of
prohibited
or
acceptable
substitutes.
In
this
final
rule,
EPA
is
revising
its
determination
regarding
the
acceptability
of
HCFC­
141b
as
a
substitute
in
the
foams
blowing
sector.
Today's
rule
finalizes
and
incorporates
decisions
that
were
proposed
on
July
11,
2000
at
65
FR
42653
(
referred
to
hereinafter
as
"
the
proposal").
The
section
below
presents
a
detailed
discussion
of
the
determination
that
is
made
final
in
today's
Final
Rule.

III.
Listing
Decision
on
HCFC­
141b
in
the
Foam
Sector
A.
Background
A
major
goal
of
the
SNAP
program
is
to
facilitate
the
transition
away
from
ODS.
In
1994,
EPA
listed
several
HCFCs
as
acceptable
replacements
for
CFCs
because
the
Agency
believed
that
HCFCs
provided
a
temporary
bridge
to
alternatives
that
do
not
deplete
stratospheric
ozone
("
ozone­
friendly").
At
that
time,
EPA
believed
that
HCFCs
were
necessary
transitional
alternatives
to
CFC
blowing
agents
in
thermal
insulating
foam
(
59
FR
13083).
As
a
result,

HCFC­
141b
became
one
of
the
most
common
foam
blowing
agents
in
place
of
CFC­
11.
Pursuant
to
the
CAA
and
the
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer
HCFC­
141b
was
phased
out
of
production
and
import
on
January
1,
2003.1
Since
the
time
EPA
initially
listed
HCFC­
141b
as
acceptable
in
certain
foam
blowing
uses,
the
Agency
has
listed
several
other
non­

ODS
alternative
blowing
agents,
including
hydrofluorocarbons
(
HFCs),
hydrocarbons,
carbon
2These
listings
are
published
in
the
following
Federal
Register
notices:
61
FR
47012,
62FR
10700,
62
FR
30275,
63
FR
9151,
64
FR
30410,
64
FR
68039,
65
FR
19327,
65
FR
37900,
65
FR
78977
and
68
FR
50533.

3Within
the
context
of
this
rule,
the
word
alternative
refers
to
a
technically
viable
SNAP
approved
alternative
that
presents
a
lower
overall
risk
to
human
health
and
the
environment.
9
dioxide,
and
other
compounds
as
acceptable
substitutes
in
foam
blowing.
2
As
of
2003,
the
vast
majority
of
the
foam
industry
has
implemented
alternatives
other
than
HCFC­
141b.
3
Finished
products
containing
these
alternatives
are
commercially
available
today.
Spray
foam
is
the
only
significant
foam
end
use
that
has
not
completed
the
transition
away
from
ODS.
However,
some
spray
foam
companies
have
implemented
non­
ODS
alternatives
and
are
marketing
foam
systems
containing
non­
ODS
alternatives
today.
Others
have
identified
non­
ODS
alternatives,
overcome
technical
constraints
and
are
working
on
the
final
implementation
of
non­
ODS
alternatives,
such
as
acquiring
final
building
code
approvals
before
offering
foam
systems
in
the
market
by
the
end
of
2004.

The
spray
foam
sector
operates
differently
than
many
other
end
users
regulated
under
SNAP.
Rather
than
the
end
user
directly
buying
and
using
an
alternative,
the
alternative
is
first
processed
by
a
formulator.
The
formulators
purchase
raw
materials,
including
the
blowing
agent
(
e.
g.
HCFC­
141b),
isocyanates,
surfactants,
fire
retardants,
etc.
from
suppliers
and
blend
the
materials
into
a
spray
foam
system.
Because
the
re­
formulating
and
testing
is
done
by
the
formulators,
they
are
relied
upon
for
much
of
the
technical
expertise
and
support
provided
to
the
ultimate
end
user
­
­
on­
site
contractors.
The
contractors
purchase
these
systems
from
the
formulators
in
order
to
produce
the
actual
foam
product
(
e.
g.,
roof
or
wall
insulation).
Thus,
in
the
spray
foam
sector,
the
formulators
are
responsible
for
implementing
alternatives
to
HCFC­

141b
and
providing
the
contractors
with
systems
that
produce
foam
meeting
the
necessary
10
technical
and
code
requirements.
However,
both
the
formulators
and
contractors
are
subject
to
SNAP
regulations
because
both
use
the
blowing
agent
(
e.
g.
HCFC­
141b).
In
the
former
case
this
entails
blending
the
blowing
agent
in
a
foam
formulation
and
in
the
latter
case
this
involves
producing
the
foam
with
aid
of
the
blowing
agent.

On
July
11,
2000,
EPA
published
a
proposal
that
addressed
the
use
of
various
HCFCs
in
foam
end­
uses
(
65
FR
42653).
Part
of
that
proposed
rule
was
a
proposal
to
list
HCFC­
141b
as
unacceptable
in
all
foam
end­
uses
upon
finalization
of
the
rule,
with
existing
users
allowed
to
continue
use
(
i.
e.,
grandfathered)
until
January
1,
2005.
EPA
believed
that
this
time
period
was
sufficient
for
these
end­
users
to
transition
to
alternative
foam
blowing
agents,
considering
the
production
phaseout
of
HCFC­
141b
on
January
1,
2003.
The
Agency
allowed
60
days
for
public
comment
and
received
45
responses
to
the
proposal
by
the
close
of
the
comment
period
(
September
11,
2000).
EPA
received
comments
from
chemical
manufacturers,
appliance
manufacturers,
spray
foam
manufacturers,
associations,
and
others.
Copies
of
the
comments
can
be
obtained
through
the
Air
Docket
by
referencing
A­
2000­
18,
IV­
D­
1
through
45
(
see
Addresses
section
above
for
docket
contact
information).
Specifically,
the
comments
to
the
proposal
on
HCFC­
141b
detailed
issues
surrounding
the
technical
viability
and
availability
of
non­
ODS
alternatives
in
the
spray
foam
sector.
On
July
22,
2002,
EPA
took
final
action
on
other
aspects
of
the
July
11,
2000
proposed
rule.
In
response
to
the
comments
regarding
the
technical
viability
and
availability
of
alternatives
in
the
spray
foam
sector,
EPA
deferred
final
action
on
the
proposal
to
list
HCFC­
141b
as
unacceptable
in
order
to
monitor
the
progress
of
the
spray
foam
sector
in
implementing
technically
viable
alternatives
(
67
FR
47703).

Since
EPA's
deferral
on
the
decision
to
find
the
use
HCFC­
141b
in
foam
blowing
11
applications
unacceptable,
the
Agency
has
undertaken
a
number
of
initiatives
to
address
the
concerns
of
spray
foam
formulators
that
non­
ODS
alternatives
were
not
technically
and
economically
viable.
There
are
approximately
15­
20
companies
in
the
U.
S.
that
formulate
spray
foam
for
thousands
of
customers,
including
roofing
contractors
and
others.
Several
of
the
these
formulators
are
larger
businesses,
but
many
are
small
businesses.
In
comments
on
the
SNAP
proposal
and
on
a
separate
but
related
rulemaking
(
the
HCFC
Allowance
Allocation
proposal,

July
20,
2001,
66
FR
38063),
some
small
businesses
that
used
HCFC­
141b
requested
an
industry
wide
exemption
from
the
HCFC­
141b
production
phaseout
of
January
1,
2003
(
the
phaseout
date
established
in
1993).
Based
on
their
view
of
the
technical
viability
and
availability
of
alternatives,

the
formulators
explained
that
access
to
HCFC­
141b
beyond
the
phaseout
would
allow
them
to
complete
all
the
tests
and
qualifications
necessary
to
implement
alternative
blowing
agents
(
see
Air
Docket
A­
98­
33:
IV­
D­
35
to
IV­
D­
66
and
IV­
G­
06
to
IV­
G­
09).
Upon
review
of
these
comments,
EPA
concluded
that
allowing
production
of
HCFC­
141b
for
the
entire
spray
foam
sector
would
unfairly
penalize
companies
who
had
invested
in
the
transition
from
HCFC­
141b.

Additionally,
hundreds
if
not
thousands
of
companies
had
been
relying
on
the
HCFC­
141b
phaseout
for
ten
years
and
had
made
investments
according
to
the
phaseout
date
established
in
1993.
EPA
did
not
believe
an
industry
wide
exemption
from
the
production
ban
would
provide
any
small
businesses
that
were
experiencing
technical
constraints
access
to
HCFC­
141b
produced
after
January
1,
2003,
because
they
would
be
forced
to
compete
with
other
companies
for
a
limited
supply
of
HCFC­
141b
(
68
FR
2827).
Therefore,
in
an
immediate
effort
to
address
the
concerns
of
small
businesses,
EPA
funded
a
three­
year
grant
(
2001­
2004)
to
the
Spray
Polyurethane
Foam
Alliance
(
SPFA).
This
grant
assisted
the
SPFA
to
investigate
and
test
non­
4A
foam
system
typically
consists
of
two
transfer
pumps
that
deliver
ingredients
(
polyisocyanate
from
one
side
and
a
mixture
including
the
blowing
agent
and
stabilizers
from
the
other
side)
to
a
metering/
mixing
device
which
allows
the
components
to
be
delivered
in
the
appropriate
proportions.
The
components
are
then
sent
to
a
mixing
gun
and
dispensed
as
foam
directly
to
a
surface
such
as
a
roof
or
tank.
The
"
blended"
foam
systems
being
imported
to
the
U.
S.
are
complete
systems,
containing
all
the
ingredients
including
the
polyisocyanate
and
the
blowing
agent.
12
ODS
alternatives
as
well
as
provide
guidance
to
the
spray
foam
sector
on
implementation
of
those
alternatives.
EPA
also
provided
outreach
and
assistance
through
various
meetings,
presentations
and
guidance
directed
at
the
spray
foam
sector
from
2001
to
2004
(
Air
Docket
OAR­
2003­
0228­

30
and
31
and
http://
www.
epa.
gov/
ozone/
snap/
foams/
index.
html).

More
importantly,
in
response
to
the
small
businesses'
requests
for
an
extension
of
the
production
phaseout
of
HCFC­
141b,
EPA
created
the
HCFC­
141b
Exemption
Allowance
Petition
process
in
the
final
HCFC
Allowance
Allocation
rule
(
January
21,
2003,
68
FR
2819).
This
process
allowed
formulators
of
HCFC­
141b
to
individually
petition
EPA
(
on
an
annual
basis)
for
new
production
of
HCFC­
141b
beyond
the
phaseout
date.
The
petitions
must
detail
the
technical
viability
of
alternatives,
access
to
stockpiled
HCFC­
141b
and
efforts
to
implement
alternatives
as
well
as
the
other
information
required
under
40
CFR
82.16(
h).
Over
the
past
two
years,
EPA
has
received
approximately
25
petitions
from
formulators
for
a
variety
of
applications,
the
majority
of
which
were
spray
foam
roofing
and
wall
insulation.

The
switch
to
alternatives
has
been
slowed
in
the
spray
foam
market
because
of
the
continued
availability
of
HCFC­
141b.
Although
stockpiled
HCFC­
141b
will
be
depleted
by
the
end
of
2004,
that
is
not
the
only
source
of
HCFC­
141b
being
used
for
spray
foam
applications.

"
Blended"
polyurethane
foam
systems4
containing
HCFC­
141b
as
the
blowing
agent
are
being
imported
to
the
U.
S.
under
this
scenario,
HCFC­
141b
is
newly
produced
and
blended
with
the
13
isocyanates,
surfactants,
fire
retardants,
etc.
into
a
system
in
a
country
that
is
not
subject
to
the
production
phaseout
in
the
Montreal
Protocol.
Then,
that
"
blended"
system
is
imported
into
the
U.
S.
for
use
in
spray
foam
applications.

EPA
has
been
monitoring
this
situation
since
the
production
phaseout
on
January
1,
2003
in
order
to
determine
whether
this
vehicle
for
obtaining
HCFC­
141b
beyond
the
phaseout
date
would
be
exploited.
As
explained
in
the
2002
final
foam
rule,
"...
if
this
activity
becomes
widespread
and
compromises
or
undermines
the
intent
of
the
U.
S.
HCFC­
141b
phaseout,

disadvantages
companies
that
have
made
good
faith
investments
in
developing
and
implementing
non­
ODS
alternative
technologies,
EPA
could
consider
establishing
a
SNAP
use
restriction..."
(
67
FR
47708).
Given
the
information
EPA
has
received
since
HCFC­
141b
production
was
phased
out,
it
is
apparent
that
the
continued
availability
of
HCFC­
141b
through
these
"
blended"
systems
is
not
only
delaying
the
transition
to
alternatives
in
the
spray
foam
sector
but
threatens
to
reverse
the
transition
by
penalizing
companies
that
have
either
transitioned
to
alternatives,
or
are
technically
capable
of
transitioning
to
alternatives
but
choose
not
to
because
of
the
widespread
availability
of
foam
systems
containing
HCFC­
141b.

Based
on
the
information
from
the
HCFC­
141b
Exemption
Allowance
Petitions
and
other
information
provided
by
the
industry,
on
March
10,
2004,
EPA
published
a
NODA
(
69
FR
11358)
pertaining
to
the
availability,
including
the
technical
viability,
of
alternatives,
and
the
import
of
"
blended"
HCFC­
141b
polyurethane
foam
systems.
EPA
allowed
30
days
for
comment
and
received
16
comments
on
the
information
by
the
close
of
the
comment
period
(
April
9,
2004).

The
Agency
received
information
on
the
technical
viability
of
alternatives
from
chemical
manufacturers,
spray
foam
manufacturers,
contractors,
industry
associations,
and
others.
Copies
14
can
be
obtained
through
the
Air
Docket
by
referencing
OAR­
2003­
0228,
Reference
Numbers
14­

29
(
see
Addresses
section
above
for
docket
contact
info).
Of
the
16
comments
received,
5
were
from
small
businesses
raising
some
concerns
about
the
use
of
stockpiled
HCFC­
141b
and
the
ability
for
all
businesses
to
transition
to
alternatives
by
January
1,
2005.
EPA
addressed
these
and
other
issues
the
commenters
raised
below.
In
addition,
EPA
addressed
any
comments
received
to
the
2004
NODA
after
the
comment
period
closed
on
April
9,
2004
in
a
document
titled
"
Response
To
Late
Comments"
found
in
Air
Docket
OAR­
2003­
0228.
Today,
EPA
is
making
its
final
decision
regarding
the
acceptability
of
HCFC­
141b
in
the
foam
sector.
EPA's
decisions
are
based
on
the
technical
viability
of
alternatives,
timing
and
availability
of
alternatives,
the
need
for
products
that
maintain
thermal
efficiency,
structural
integrity,
safety,
and
the
potential
economic
implications
of
this
action.

B.
Decision
Based
on
the
comments
received
on
the
proposal
and
NODA,
EPA
is
taking
the
following
final
actions:
(
1)
changing
the
listing
decision
for
HCFC­
141b
so
that
it
is
unacceptable
for
all
foam
blowing
end
uses
(
other
than
those
applications
specifically
exempted)
as
of
January
1,

2005,
(
2)
exempting
the
use
of
HCFC­
141b
for
space
vehicle,
nuclear
and
defense
foam
applications
from
the
unacceptability
determination,
(
3)
exempting
the
use
of
HCFC­
141b
for
laboratory
research
and
development
applications
from
the
unacceptability
determination
and
(
4)

allowing
the
use
of
fully
formulated
HCFC­
141b
foam
systems
in
inventory
before
January
1,

2005
until
April
1,
2005.

The
majority
of
the
HCFC­
141b
users
in
the
foam
industry
transitioned
to
alternatives
on
or
before
January
1,
2003.
The
remaining
portion
of
the
industry,
specifically
the
spray
foam
15
sector,
required
additional
time
to
implement
alternatives
to
HCFC­
141b.
This
sector
includes
small
businesses
at
both
the
formulator
level
and
the
contractor
level.
Of
the
15­
20
formulators
in
the
U.
S.
some
are
small
businesses.
Equally,
of
the
thousands
of
contractors
many
are
small
businesses.
Both
the
formulators
and
contractors
use
the
blowing
agent
(
e.
g.
HCFC­
141b)
in
the
manufacture
of
foam.
The
formulators
use
the
blowing
agent
by
blending
it
into
the
foam
formulations
found
in
the
spray
foam
systems.
The
contractors
use
the
blowing
agent
by
spraying
the
foam
system
containing
the
blowing
agent
to
create
the
actual
foam
product
(
e.
g.
roof,
wall,

pipe
insulation).
Over
the
past
three
years,
EPA
has
been
working
extensively
with
this
sector
in
order
to
ensure
a
safe
and
timely
transition
to
less
harmful
alternatives,
through
the
SPFA
grant,

the
HCFC­
141b
Exemption
Allowance
Petition
process
and
through
the
outreach
efforts
cited
above.

In
2000,
before
the
phaseout
of
HCFC­
141b,
small
business
formulators
requested
an
extension
of
the
HCFC­
141b
phaseout
date
in
order
to
complete
testing,
qualification
and
code
approvals
of
their
alternative
systems.
EPA's
technical
expert,
Caleb
Management
Services,

surveyed
the
foam
industry
through
a
review
of
technical
data
and
industry
interviews
and
concluded
that
due
to
the
field
testing
and
approval
process
necessary
for
spray
foam,
commercial
products
containing
alternatives
would
not
be
widely
available
until
the
beginning
of
2005
(
Air
Docket
A­
2000­
18,
IV­
D­
78).
The
formulators
supported
this
assessment
and
urged
EPA
to
take
action
consistent
with
the
Caleb
Report.
EPA
agreed
with
the
formulators
and
Caleb's
assessment
and
established
the
HCFC­
141b
Exemption
Allowance
Petition
process
to
provide
relief
to
any
business
that
did
not
have
access
to
HCFC­
141b
while
they
were
developing
alternatives.
16
Suppliers
of
HCFC­
141b
and
the
majority
of
spray
foam
formulators
(
which
hold
the
stockpiled
HCFC­
141b)
provided
key
information
to
EPA
through
the
two
years
of
the
HCFC­

141b
Exemption
Allowance
Petition
process.
This
information
included
the
quantity
of
stockpiled
HCFC­
141b
available
to
the
industry
and
the
progress
of
formulators
in
implementing
alternatives
across
the
industry.
EPA's
analysis
of
that
information
determined
that
stockpiled
HCFC­
141b
will
be
depleted
by
the
end
of
2004,
the
majority
of
technical
constraints
limiting
the
use
of
other
acceptable
alternatives
have
been
overcome
and
alternatives
will
be
implemented
by
the
end
of
2004
(
Air
Docket
OAR­
2003­
0228­
0009).

In
the
second
half
of
2002
the
suppliers
produced
a
large
quantity
of
stockpiled
HCFC­

141b,
including
approximately
6.5
million
pounds
of
uncommitted
HCFC­
141b.
As
a
result,
the
majority
of
formulators
purchased
stockpiled
HCFC­
141b
to
meet
their
needs
as
they
transitioned
to
non­
ODS
alternatives.
Those
formulators
that
did
not
purchase
stockpiled
HCFC­
141b
in
2002
before
the
phaseout,
did
so
in
both
2003
and
2004.
As
a
result,
the
spray
foam
sector
primarily
relied
on
stockpiled
HCFC­
141b.
During
this
period,
EPA
did
not
authorize
new
production
of
HCFC­
141b
through
the
HCFC­
141b
Exemption
Allowance
Petition
process,
with
the
exception
of
small
quantities
for
specialized
space
vehicle
applications
(
Air
Docket
A­
98­
33,

IV­
G­
26­
30).

Some
formulators
have
made
significant
progress
to
transition
away
from
HCFC­
141b
since
their
2000
extension
request.
These
firms
now
offer
on
the
market
foam
systems
containing
non­
ODS
alternatives
and
others
will
be
doing
the
same
throughout
2004
(
Air
Docket
OAR­

2003­
0228­
0009).
As
EPA
stated
when
establishing
the
HCFC­
141b
Exemption
Allowance
Petition
process
in
January
2003,
"
EPA
believes
all
or
almost
all
formulators
can
have
fully­
5Although
raw
material
suppliers
are
currently
relying
on
stockpiled
HCFC­
141b
for
their
research
and
development
needs
they
may
require
additional
production
or
import
of
de
minimis
quantities
of
HCFC­
141b
in
the
future.
In
a
2002
final
rule,
EPA
defined
de
minimis
quantities
of
class
I
controlled
substances
as
5
pounds
or
less
(
December
31,
2002,
67
FR
79861).
EPA
regulations
exempt
import
and
production
of
de
minimis
quantities
of
class
I
(
CFCs)
controlled
substances
for
laboratory
use
from
the
phaseout
of
those
substances
with
specific
restrictions
17
approved
commercially
available
foam
systems
using
alternatives
by
the
end
of
2004."
(
68
FR
2828).
The
information
gathered
through
the
HCFC­
141b
Exemption
Allowance
Petition
process
supports
EPA's
belief
that
alternatives
to
HCFC­
141b
are
technically
and
economically
viable
for
foam
applications.

Although
alternatives
are
technically
and
economically
viable
for
the
majority
of
end
uses
in
the
foam
industry,
a
few
exceptions
exist
for
space,
nuclear
and
defense
applications.
EPA
received
information
from
the
National
Aeronautics
and
Space
Administration
(
NASA),
the
National
Nuclear
Security
Administration
(
NNSA)
of
the
U.
S.
Department
of
Energy
(
DOE)
and
their
contractors
about
specific
foam
applications
that
require
continued
use
of
HCFC­
141b.

These
applications
which
include
the
use
of
HCFC­
141b
to
insulate
the
external
tank
of
the
space
shuttle
and
space
launch
vehicles
in
order
to
meet
rigorous
technical
and
human
health
and
safety
requirements.
Alternatives
to
these
uses
have
not
proved
technically
viable
to
date
(
Air
Docket
OAR­
2003­
18,
20,
14
and
33).
Those
entities
project
their
use
of
HCFC­
141b
will
continue
to
at
least
2010
when
either
the
projects
will
be
complete
or
alternatives
will
be
qualified.
Based
on
the
highly
specialized
safety
and
technical
requirements,
EPA
is
allowing
the
continued
use
of
HCFC­

141b
in
space
vehicle,
nuclear
and
defense
foam
applications
beyond
January
1,
2005.

Additionally,
suppliers
of
blowing
agents,
isocyanates,
surfactants,
fire
retardants,
etc.
in
the
foam
industry
use
small
quantities
of
stockpiled
HCFC­
141b
in
laboratory­
scale
research
and
development
for
users
outside
the
US.
5
This
use
includes
various
research
and
development
outlined
in
Appendix
G
in
accordance
with
the
Montreal
Protocol
(
66
FR
14760).
The
issue
of
an
HCFC­
141b
laboratory
exemption
including
commercial
research
and
development
will
be
addressed
in
a
separate
rulemaking
at
a
later
date.

6These
actions
are
as
follows:
°
SNAP
Foam
NPRM,
July
11,
2000,
65
FR
42653,
°
SNAP
Foam
NODA,
May
23,
2001,
66
FR
28408,
°
SNAP
Foam
Final
rule,
July
22,
2002,
67
FR
47703,
°
HCFC
Allowance
Allocation
Final
rule,
January
21,
2003,
68
FR
2819,
°
SNAP
Foam
NODA,
March
10,
2004,
69
FR
11385.

18
activities
such
as
preparing
control
samples,
blending
formulations,
analyzing
samples,
etc.
Given
the
fact
that
this
is
a
small
use
that
does
not
develop
HCFC­
141b
foam
products
for
the
U.
S.,

EPA
is
allowing
the
continued
use
of
HCFC­
141b
in
laboratory
research
and
development
applications
beyond
January
1,
2005.

Finally,
EPA
received
comments
from
spray
foam
formulators
and
contractors
requesting
the
use
of
inventoried
HCFC­
141b
spray
foam
systems
beyond
January
1,
2005.
Since
2000,

EPA
has
provided
continual
updates
on
the
status
of
the
proposal
through
regulatory
actions
every
year.
6
EPA
believes
that
the
spray
foam
sector
has
had
sufficient
notice
to
prepare
and
plan
for
the
use
restriction.
This
includes
the
prudent
management
of
their
inventories
of
stockpiled
HCFC­
141b
and
fully
formulated
systems
containing
HCFC­
141b.

On
the
other
hand,
EPA
recognizes
that
the
actual
application
of
spray
foam
is
weather
dependent,
especially
in
the
winter
months
where
spray
foam
jobs
are
scheduled
and
delayed
because
of
uncontrollable
weather
events.
The
total
inventory
of
fully
formulated
spray
foam
systems
is
low
in
the
winter
because
it
is
historically
the
slowest
time
of
the
year
with
relatively
few
spray
foam
applications
scheduled.
Thus,
EPA
is
allowing
the
application
of
existing
stock
of
fully
formulated
systems
containing
HCFC­
141b
until
April
1,
2005.
19
In
order
to
accommodate
users
who
may
have
some
remaining
systems
in
inventory
at
the
end
of
2004,
EPA
is
granting
a
one­
time
exception.
Any
fully
formulated
spray
foam
system
containing
HCFC­
141b
that
is
on­
site
and
in
the
company's
physical
inventory,
as
of
December
31,
2004
may
receive
this
one­
time
exception
and
can
use
these
foam
systems
through
March
31,

2005.
However,
effective
April
1,
2005,
it
will
be
illegal
to
use
an
inventoried
fully
formulated
system
containing
HCFC­
141b
for
the
purpose
of
foam
application.
Incidentally,
a
fully
formulated
spray
foam
system
typically
has
a
finite
shelf
life
of
approximately
three
to
four
months
before
the
reactivity
of
the
system
slows
down
and
it
will
not
perform
to
specification.
Therefore,

once
blended
the
fully
formulated
spray
foam
systems
needs
to
be
applied
within
that
limited
period.

In
order
to
comply
with
this
exception,
the
spray
foam
systems
containing
HCFC­
141b
must
be
fully
formulated
and
in
existing
stock
with
the
formulator
or
contractor
before
January
1,

2005.
Existing
stock
is
defined
as
the
total
number
of
fully
formulated
systems
containing
HCFC­

141b
physically
on­
site
at
the
company's
facility
on
December
31,
2004
and
listed
on
the
inventory
list.
An
inventory
list
must
be
created
reflecting
the
total
number
of
fully
formulated
systems
containing
HCFC­
141b,
on­
site,
at
the
facility.
The
inventory
list
must
identify
the
name,

address
­
no
Post
Office
Box,
city,
state,
zip
code,
of
the
facility
where
the
fully
formulated
systems
are
stored,
and
a
signature
attesting
that
the
total
number
of
fully
formulated
systems
is
true
and
accurate
as
of
December
31,
2004.
The
facility
must
keep
a
copy
of
the
inventory
list
at
the
facility
site
which
stores
the
fully
formulated
systems
list
for
three
years.

Fully
formulated
systems
that
meet
these
conditions
must
be
applied
before
April
1,
2005.

Any
user
who
knowingly
formulates
a
fully
formulated
spray
foam
system
containing
HCFC­
141b
20
on
or
after
January
1,
2005,
or
any
user
who
knowingly
applies
an
inventoried
fully
formulated
system
containing
HCFC­
141b
on
or
after
April
1,
2005
may
be
fined
up
to
$
27,500
per
kilogram
of
HCFC­
141b.

IV.
Response
to
Comments
EPA
received
45
comments
during
the
comment
period
to
the
2000
proposal.
Those
comments
referred
to
all
provisions
in
the
proposal,
including
those
related
to
the
use
of
HCFC­

22
and
HCFC­
142b,
and
were
addressed
in
the
2002
final
foam
rule
(
67
FR
477703).
The
comments
received
on
the
2000
proposal
and
the
2001
NODA
regarding
HCFC­
141b
were
responded
to
in
the
final
HCFC
Allowance
Allocation
rule
(
28
FR
6819)
which
created
the
HCFC­
141b
Exemption
Allowance
Petition
process.
In
addition,
EPA
received
16
comments
during
the
comment
period
on
the
2004
NODA.
EPA
addressed
any
late
comments
received
to
the
2004
NODA
after
the
comment
period
closed
on
April
9,
2004
in
a
document
titled
"
Response
To
Late
Comments"
found
in
Air
Docket
OAR­
2003­
0228.
The
comments
EPA
received
within
the
comment
period
related
to
the
use
of
HCFC­
141b
are
summarized
in
the
following
6
topics
which
are
addressed
in
detail
below:

1.
Technical
Availability
of
Alternatives
2.
Quantity
of
Stockpiled
HCFC­
141b
3.
Import
into
the
U.
S.
of
"
Blended"
Polyurethane
Foam
Systems
4.
Clean
Air
Act
5.
North
American
Free
Trade
Agreement
6.
De­
listing
HCFC­
141b
and
Grandfathering
under
SNAP
21
Technical
Viability
of
Alternatives
Some
commenters
said
that
not
all
spray
foam
formulators
will
have
qualified
non­
ODS
alternatives
available
to
them
at
the
end
of
2004.
EPA's
decision
to
list
HCFC­
141b
as
unacceptable
in
foam
blowing
is
based
on
the
fact
that
alternatives
that
provide
a
lower
risk
to
human
health
and
the
environment
are
technically
viable
and
commercially
available.
The
commenters
did
not
suggest
or
provide
evidence
why
alternatives
are
not
available
to
spray
foam
formulators.
EPA's
analysis
of
the
information
gathered
from
the
HCFC­
141b
Exemption
Allowance
Petitions
indicates
that
some
formulators
are
already
offering
commercial
products
using
non­
ODS
alternative
blowing
agents
and
the
majority
of
formulators
will
be
able
to
offer
such
products
by
the
end
of
2004
(
Air
Docket
OAR­
2003­
0228­
0009).
As
EPA
stated
when
establishing
the
HCFC­
141b
Exemption
Allowance
Petition
process,
"
EPA
believes
the
spray
and
pour
foam
industries
have
had
access
to
sufficient
quantities
of
HFC­
245fa
[
the
alternative
of
choice
for
most
formulators]
for
research,
development
and
testing
purposes
since
early
2001
and
in
many
cases
before.
Therefore,
by
2004,
EPA
believes
that
most,
if
not
all,
formulators
in
this
sector
will
have
had
sufficient
time
to
test
and
implement
alternatives."
(
68
FR
2828).

Moreover,
the
formulators
that
petitioned
EPA
for
newly
produced
HCFC­
141b
had
to
provide
detailed
information
about
the
status
of
their
implementation
of
alternatives.
That
information
demonstrated
that,
overall,
any
remaining
technical
constraints
were
being
addressed
and
alternatives
would
be
implemented
by
the
end
of
2004
(
Air
Docket
OAR­
2003­
0228­
0009).

It
is
important
to
note
that
these
findings
correspond
and
are
consistent
with
the
assessment
in
the
Caleb
Report
of
the
spray
foam
sector
and
the
formulators'
support
of
that
assessment.
The
Caleb
Report
stated
that
after
completing
field
testing
and
achieving
code
approvals,
the
spray
22
foam
sector
would
be
able
to
offer
commercial
products
containing
alternatives
by
2005.
Due
to
the
progress
in
development,
field
testing
and
qualification
in
the
sector,
EPA
believes
by
the
beginning
of
2005,
the
spray
foam
demand
can
be
met
with
non­
ODS
alternatives.
HCFC­
141b
will
not
be
required
to
maintain
technical
requirements,
such
as
structural
integrity
or
thermal
efficiency,
in
foam
applications.
However,
as
discussed
in
the
previous
section
there
are
certain
specialized
space
vehicle,
nuclear
and
defense
applications
that
do
require
HCFC­
141b
to
meet
rigorous
technical,
human
health
and
safety
requirements
(
i.
e.
space
shuttle
flight
safety).
For
those
limited
applications,
EPA
is
allowing
the
continued
use
of
HCFC­
141b.

Quantity
of
Stockpiled
HCFC­
141b
Some
commenters
recommended
that
EPA
allow
the
use
of
any
remaining
stockpiled
HCFC­
141b
in
2005.
Before
the
phaseout
of
HCFC­
141b,
EPA
encouraged
stockpiling
HCFC­

141b
for
use
during
the
transition
to
alternatives,
especially
for
formulators
that
were
experiencing
technical
constraints.
According
to
EPA's
analysis
of
data
received
from
formulators
and
HCFC­
141b
suppliers,
the
remaining
stockpiled
HCFC­
141b
will
be
depleted
by
the
end
of
2004.
In
fact,
petitioners
in
the
HCFC­
141b
Exemption
Allowance
Petition
process
provided
EPA
with
the
quantity
of
stockpiled
HCFC­
141b
they
currently
held
and
then
demonstrated
they
did
not
have
access
to
additional
stockpiled
HCFC­
141b.
Morever,
the
foam
industry
has
been
aware
of
the
need
to
plan
for
its
transition
from
HCFC­
141b
since
1993,
which
includes
the
use
and
management
of
a
finite
quantity
of
HCFC­
141b.
It
is
unlikely
any
company
would
be
holding
a
large
stockpile
of
HCFC­
141b
two
years
beyond
the
phaseout
date.
EPA
is
confident
its
analysis
accurately
reflects
the
quantity
of
stockpiled
HCFC­
141b
available
for
use
in
the
foam
industry
because
it
is
based
on
data
from
the
same
industry
that
has
requested
to
use
23
stockpiles
in
2005.
EPA
has
been
provided
with
no
evidence
that
large
stockpiles
of
HCFC­
141b
will
exist
in
the
spray
foam
sector
beyond
January
1,
2005.
Therefore,
EPA
has
determined
that
it
is
not
necessary
to
allow
stockpiled
HCFC­
141b
to
be
used
in
2005.

In
a
related
issue,
EPA
acknowledges
that
some
formulators
and
contractors
could
have
HCFC­
141b
systems
formulated
and
purchased
in
2004
held
in
inventory
at
the
beginning
of
2005
due
to
weather
delays.
Given
the
fact
that
the
production
of
HCFC­
141b
has
been
phased
out
since
January
1,
2003
and
that
the
use
restriction
was
proposed
in
2000,
the
foam
industry
has
been
on
notice
and
should
be
making
every
effort
to
use
HCFC­
141b
systems
and
transition
to
alternative
based
systems
as
soon
as
possible.
However,
as
discussed
in
the
previous
section,
in
order
to
allow
for
the
uncertainty
of
the
winter
months,
EPA
is
allowing
the
use
of
fully
formulated
HCFC­
141b
foam
systems
that
are
in
inventory
before
January
1,
2005
until
April
1,

2005.
This
allowance
will
accommodate
any
formulators
and
contractors
holding
fully
formulated
HCFC­
141b
systems
at
the
end
of
2004
and
ensure
that
HCFC­
141b
produced
before
the
phaseout
is
consumed
without
a
loss
to
the
purchaser.

Import
into
the
U.
S.
of
"
Blended"
Polyurethane
Foam
Systems
EPA
received
comments
suggesting
that
restricting
the
use
HCFC­
141b
would
unfairly
impact
Mexico
because
such
a
restriction
would
preclude
the
use
of
"
blended"
foam
systems
containing
HCFC­
141b
that
are
manufactured
in
and
imported
from
Mexico.
Restricting
the
use
of
HCFC­
141b
in
foam
applications
in
the
U.
S.
does
not
restrict
Mexico's
ability
to
obtain
HCFCs
or
use
HCFCs.
Under
the
Montreal
Protocol,
as
an
Article
5
country
(
a
developing
country),
Mexico
is
allowed
to
produce
and
import
HCFCs
until
2040
in
accordance
with
their
baseline
(
which
will
be
established
in
2015).
Equally,
this
use
restriction
does
not
prevent
the
use
24
of
or
import
into
the
U.
S.
of
refrigerators
or
metal
panels,
for
example,
that
contain
HCFC­
141b.

Those
products
can
continue
to
be
manufactured
in
Mexico
(
or
any
other
country)
and
imported
into
the
U.
S.

The
commenters
did
not
provide
the
quantity
of
HCFC­
141b
they
were
importing
into
the
U.
S.
via
these
"
blended"
foam
systems
but
another
commenter
stated
that
as
much
as
8­
9
million
pounds
of
HCFC­
141b
could
be
imported
into
the
U.
S.
in
this
manner
(
Air
Docket
OAR­
2003­

0019).

Some
of
the
commenters
contend
that
they
are
relying
on
the
revenue
from
the
sale
of
these
"
blended"
foam
systems
for
use
in
the
U.
S.
to
fund
their
research
and
development
into
alternatives
in
Mexico.
This
issue
is
beyond
scope
of
this
rulemaking
because
the
SNAP
program
focuses
on
the
transition
to
alternatives
in
the
U.
S.
rather
than
other
countries.

Clean
Air
Act
Another
commenter
stated
that
Section
610
of
the
CAA
prevents
EPA
from
restricting
the
use
of
HCFC­
141b
in
foam
applications.
Under
Section
610,
EPA
promulgated
regulations
prohibiting
the
sale
and
distribution
and
the
offer
for
sale
and
distribution
of
nonessential
products
containing
Class
I
and
Class
II
controlled
substances
as
of
January
1994
(
58
FR
4768
and
58
FR
69638).
In
Section
610,
Congress
provided
a
list
of
products
manufactured
with
those
controlled
substances
that
it
considered
nonessential
and
that
should
be
banned
from
sale
and
distribution
in
the
U.
S.
However,
in
the
language
of
CAA
Section
610(
d)
­­
the
Class
II
Nonessential
Ban,

Congress
did
not
provide
a
list
of
products
it
considered
essential.
It
listed
exceptions
to
the
selfeffectuating
ban
for
certain
products
(
including
"
foam
insulation
products"
containing
Class
II
controlled
substances),
stating
that
those
products
should
not
be
banned
from
sale
and
distribution
7
Foam
insulation
products
are
defined
as
a
product
containing
or
consisting
of
the
following
foam
types:

closed
cell
rigid
polyurethane
foam;

closed
cell
rigid
polystyrene
boardstock
foam;

closed
cell
rigid
phenolic
foam;
and
closed
cell
rigid
polyethylene
foam
when
such
foam
is
suitable
in
shape,
thickness
and
design
to
be
used
as
a
product
that
provides
thermal
insulation
around
pipes
used
in
heating,
plumbing,
refrigeration,
or
industrial
process
systems
(
40
CFR
82.62).
Any
use
of
acceptable
HCFC
substitutes
listed
under
the
Section
612
SNAP
program
must
comply
with
these
restrictions.

25
in
the
U.
S.
at
that
time.
Additionally,
Section
610(
d)
provides
the
criteria
that
EPA
should
use
to
determine
if
additional
products
should
be
exempted
from
the
ban.
During
the
initial
rulemaking
to
implement
the
Class
II
Nonessential
Ban,
EPA
promulgated
a
definition
for
"
foam
insulation
products"
because
the
Agency
determined
that
the
use
of
the
term
"
insulation"
in
the
statute
was
ambiguous.
7
EPA
used
its
authority
to
reach
a
reasonable
interpretation
in
developing
a
definition
of
foam
insulation.

Specifically,
the
commenter
stated
because
Section
610
identifies
foam
insulation
products
as
excluded
from
the
nonessential
product
ban,
EPA
"
has
no
authority
to
restrict
HCFC
use
in
foam
insulation
products
based
on
the
availability
of
substitutes."
EPA
agrees
that
under
Section
610
it
cannot
ban
the
sale
of
foam
insulation
products
made
with
ODS.
However,
the
regulatory
authority
under
Section
610
does
not
address
EPA's
ability
to
regulate
the
transition
from
the
use
of
ODS
to
alternatives
in
the
manufacturing
of
products
such
as
foam.
EPA
has
consistently
interpreted
the
relationship
between
Section
610
and
612
as
being
independent,
in
that,
Section
612
can
restrict
the
use
of
a
substitute
in
a
product
regardless
of
whether
or
not
that
product
is
considered
nonessential
under
Section
610
(
58
FR
69646).

Additionally,
that
same
commenter
states
that
EPA
cannot
prevent
the
use
of
"
blended"
26
foam
systems
containing
HCFC­
141b
because
Sections
604,
605
and
606
of
the
CAA
are
limited
to
controlled
substances
rather
than
products.
Sections
604
and
605
mandate
EPA
to
phaseout
consumption
(
production
+
import
­
export)
of
Class
I
and
Class
II
controlled
substances.

Section
606
gives
EPA
the
power
to
accelerate
the
phaseout
schedule
of
Class
I
and
Class
II
controlled
substances
based
on
new
scientific
or
technological
information
or
in
accordance
with
changes
in
the
Montreal
Protocol.
In
1993,
EPA
promulgated
a
regulation
phasing
out
the
production
and
import
of
Class
I
and
Class
II
controlled
substances
(
58
FR
65018).
As
with
Section
610,
regulations
promulgated
under
Sections
604,
605
and
606
do
not
limit
the
ability
of
EPA
to
address
the
transition
from
ODS
to
alternatives
under
Section
612,
in
particular
whether
an
ODS
is
an
acceptable
substitute
for
another
ODS
in
light
of
the
availability
of
less
harmful
substitutes.
While
Sections
604,
605,
and
606
regulate
the
production
of
HCFC­
141b,
this
rule
under
Section
612
only
restricts
the
use
of
HCFC­
141b
as
a
foam
blowing
agent
substitute.
The
rule
does
not
prohibit
the
production
and
import
of
HCFC­
141b
or
products
containing
HCFC­

141b
(
both
of
these
issues
are
addressed
in
the
separate
EPA
rulemakings
discussed
above).

North
American
Free
Trade
Agreement
(
NAFTA)

The
commenter
also
states
that
if
EPA
prevents
the
use
of
HCFC­
141b
in
foam
applications
the
Agency
would
violate
NAFTA
because
EPA's
action
would
exempt
grandfathered
domestic
use
of
HCFC­
141b
while
restricting
the
import
of
similar
products
from
Mexico.
EPA
has
considered
this
argument
and
does
not
believe
that
the
final
rule
is
inconsistent
with
U.
S.
obligations
under
the
NAFTA
(
or
any
other
international
trade
agreement
to
which
the
United
States
is
a
signatory),
including
Article
301
(
national
treatment)
or
Chapter
11.
This
rule
27
does
not
regulate
trade
in
HCFC­
141b.
In
terms
of
the
use
restriction
on
HCFC­
141b,
this
rule
does
not
distinguish
where
the
HCFC­
141b
or
the
foam
system
containing
HCFC­
141b
comes
from.
Rather,
the
use
restriction
applies
to
the
use
of
HCFC­
141b
in
certain
foam
blowing
applications
regardless
of
the
point
of
origin
(
domestic
or
foreign)
of
the
HCFC­
141b
or
how
it
is
packaged.

De­
listing
HCFC­
141b
and
Grandfathering
under
SNAP
The
same
commenter
argues
that
EPA
does
not
have
the
authority
to
"
de­
list"
HCFC­

141b
once
it
has
found
it
unacceptable
unless
petitioned
to
do
so
under
Section
612(
d).
EPA
found
HCFC­
141b
acceptable
in
foam
applications
in
1994,
but
stated
it
was
doing
so
as
an
interim
measure
(
59
FR
13044).
In
the
proposal,
EPA
was
following
its
mandate
to
review
ODS
alternatives
and
make
determinations
on
their
acceptability
in
order
to
ensure
that
substitutes
for
ODSs
that
are
determined
acceptable
present
a
lower
risk
to
human
health
and
the
environment
than
the
ODS
they
replace
and
as
compared
with
other
potential
substitutes.
EPA
disagrees,
and
as
the
Agency
explained
in
the
2000
proposal,
it
has
the
authority
to
amend
its
regulations
and
change
SNAP
determinations
independent
of
any
petitions
(
65
FR
42659).
Nothing
in
the
statute
bans
such
action
and
EPA
believes
that
inherent
in
our
authority
to
promulgate
regulations
initially
is
the
authority
to
review
and
revise
those
regulations
as
the
state
of
science
advances.

Because
one
goal
of
the
SNAP
program
is
to
expedite
the
transition
from
ODS
to
alternatives,
the
basis
for
EPA's
proposal
in
2000
was
that
the
Agency
believed
alternatives
were
technically
and
economically
viable
in
all
foam
applications.
EPA
deferred
final
action
in
2002
because
of
insufficient
information
regarding
the
availability
substitutes
that
presented
a
lower
risk
to
human
health
and
the
environment.
Because
of
concerns
that
the
spray
foam
sector
was
28
experiencing
technical
constraints
in
implementing
alternatives,
in
a
separate
rulemaking
under
Sections
605
and
606,
EPA
established
the
HCFC­
141b
Exemption
Allowance
Petition
process
as
a
mechanism
to
ensure
formulators
had
access
to
HCFC­
141b
after
the
phaseout
date.
EPA
also
funded
a
three
year
grant
to
assist
SPFA
to
develop
and
test
alternatives.
Today,
considering
the
information
generated
by
the
above
efforts,
EPA
believes
alternatives
are
technically
and
economically
viable
and
that
the
continued
use
of
HCFC­
141b
contravenes
the
purpose
and
goal
of
Section
612,
which
is
to
ensure
the
use
of
alternatives
that
pose
a
lower
risk
to
human
health
and
the
environment
when
such
alternatives
are
technically
and
economically
viable.

The
commenter
also
claims
that
restricting
the
use
of
HCFC­
141b
would
violate
EPA's
grandfathering
practice.
As
explained
in
the
proposal,
"
in
the
original
SNAP
rulemaking,
EPA
recognized
that,
where
appropriate,
EPA
can
grandfather
the
use
of
a
substitute
by
setting
the
effective
date
of
its
unacceptability
listing
for
one
or
more
specific
parties
in
the
future."
(
65
FR
42658).
In
addition,
the
U.
S.
District
Court
for
the
District
of
Columbia
established
a
four
part
test
to
judge
the
appropriateness
of
grandfathering
which
includes:
(
1)
is
the
new
rule
an
abrupt
departure
from
Agency
practice,
(
2)
what
is
the
extent
the
interested
parties
relied
on
the
previous
rule,
(
3)
what
is
the
burden
of
the
new
rule
on
the
interested
parties
and
(
4)
what
is
the
statutory
interest
in
making
the
new
rule
effective
immediately,
as
opposed
to
grandfathering
interested
parties
(
59
FR
13057).
EPA
disagrees
with
the
commenter
that
grandfathering
is
appropriate
here.

Grandfathering
is
designed
to
avoid
penalizing
users
who
have
made
good
faith
investments
in
alternatives.
The
foam
industry
has
been
on
notice
since
1993
(
when
the
production
phaseout
date
for
HCFC­
141b
was
published)
about
the
need
to
find
alternatives
to
29
HCFC­
141b.
Furthermore,
in
1994
in
the
initial
SNAP
rulemaking,
EPA
stated
that
the
Agency
was
finding
HCFC­
141b
acceptable
as
a
substitute
for
CFC­
11
in
foam
blowing
as
an
interim
measure
(
59
FR
13083).
Additionally,
in
2000,
EPA
proposed
to
change
the
listing
for
HCFC­

141b
from
acceptable
to
unacceptable
effective
January
1,
2005.
Therefore,
listing
HCFC­
141b
as
unacceptable
is
not
an
"
abrupt
departure"
of
EPA
policy.
Acknowledging
the
production
phaseout
of
HCFC­
141b,
the
majority
of
the
foam
industry
made
considerable
investments
and
successfully
transitioned
to
a
variety
of
alternatives
for
a
broad
set
of
applications.
The
spray
foam
sector
used
stockpiled
HCFC­
141b
for
the
remaining
applications
for
an
additional
two
years
beyond
the
phaseout
date
in
order
to
overcome
any
technical
issues
and
qualify
alternatives.

That
stockpile
is
expected
to
be
depleted
by
the
end
of
2004
and
the
spray
foam
sector
now
has
technically
and
economically
viable
alternatives
to
HCFC­
141b
(
Air
Docket
OAR­
2003­
0228­

0009)
.

However,
despite
the
technical
and
commercial
availability
of
alternatives,
the
transition
from
HCFC­
141b
in
the
spray
foam
applications
is
delayed
by
the
continued
availability
of
HCFC­

141b
in
the
U.
S.
The
alternatives
which
are
technically
and
economically
available
pose
a
lower
overall
risk
to
human
health
and
the
environment.
There
is
no
technical
reason
why
the
transition
to
alternatives
should
not
be
completed
in
the
foam
industry.
Thus,
EPA
is
finding
HCFC­
141b
unacceptable
in
foam
applications
as
of
January
1,
2005.

V.
Summary
A
major
objective
of
the
SNAP
program
is
to
facilitate
the
transition
from
ozone­
depleting
chemicals
by
promoting
the
use
of
substitutes
which
present
a
lower
risk
to
human
health
and
the
30
environment
(
40
CFR
82.170(
a)).
In
this
light,
a
key
policy
interest
of
the
SNAP
program
is
promoting
the
shift
from
ODSs
to
alternatives
posing
lower
overall
risk
and
that
are
currently
or
potentially
available
(
59
FR
13044).
Today's
decision
to
list
HCFC­
141b
as
unacceptable
in
foam
applications
is
based
on
EPA's
finding
that
the
continued
use
of
HCFC­
141b
in
applications
where
non­
ozone
depleting
alternatives
are
technically
and
economically
available,
would
contribute
to
the
continued
depletion
of
the
ozone
layer,
and
will
perpetually
delay
the
transition
to
alternatives
that
pose
lower
overall
risk
to
the
health
and
the
environment.

VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735;
October
4,
1993)
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
the
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
materially
alter
the
budgetary
impact
of
entitlement,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
OMB
has
notified
EPA
that
it
considers
31
this
a
"
significant
regulatory
action"
within
the
meaning
of
the
Executive
Order.
EPA
has
submitted
this
action
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
Paperwork
Reduction
Act
The
Office
of
Management
and
Budget
(
OMB)
has
approved
the
information
collection
requirements
contained
in
this
rule
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
and
has
assigned
OMB
control
number
2060­
0226.

This
action
does
not
impose
any
new
information
collection
burden.
Today's
final
rule
is
an
Agency
determination.
OMB
has
previously
approved
the
information
collection
requirements
contained
in
the
existing
regulations
in
subpart
G
of
40
CFR
part
82
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
and
has
assigned
OMB
control
number
2060­
0226
(
EPA
ICR
No.
1596.05).
This
Information
Collection
Request
(
ICR)
included
five
types
of
respondent
reporting
and
record­
keeping
activities
pursuant
to
SNAP
regulations:

submission
of
a
SNAP
petition,
filing
a
SNAP/
Toxic
Substances
Control
Act
(
TSCA)
Addendum,

notification
for
test
marketing
activity,
record­
keeping
for
substitutes
acceptable
subject
to
use
restrictions,
and
record­
keeping
for
small
volume
uses.

Copies
of
the
ICR
document(
s)
may
be
obtained
from
Susan
Auby,
by
mail
at
the
Office
of
Environmental
Information,
Office
of
Information
Collection,
Collection
Strategies
Division;

U.
S.
Environmental
Protection
Agency
(
2822T);
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460,
by
email
at
auby.
susan@
epa.
gov,
or
by
calling
(
202)
566­
1672.
A
copy
may
also
be
downloaded
off
the
internet
at
http://
www.
epa.
gov/
icr.
Include
the
ICR
and
/
or
OMB
number
in
any
correspondence.
32
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to,
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
Part
9
and
48
CFR
Chapter
15.

C.
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et.
seq.

The
RFA
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
(
APA)
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,

small
organizations,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
that
has
fewer
than
500
employees;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,

school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
33
is
not
dominant
in
its
field.

Types
of
businesses
that
are
subject
to
today's
final
rule
include:

°
Businesses
that
manufacture
polyurethane/
polyisocyanurate
foam
systems
(
NAICS
326150).

°
Businesses
that
use
polyurethane/
polyisocyanurate
systems
to
apply
insulation
to
buildings,
roofs,
pipes,
etc.
(
NAICS
326150).

The
proposal
preceding
this
final
rule
contained
provisions
related
to
HCFC­
141b,
HCFC­

22
and
HCFC­
142b.
As
explained
in
the
2001
NODA
and
the
2002
final
rule
(
66
FR
28408,
67
FR
47703),
there
were
many
small
users
of
HCFC­
22
and
HCFC­
142b
that
EPA
was
unaware
of
at
the
time
of
the
proposal.
The
Agency
hired
a
technical
expert
to
investigate
the
concerns
of
the
small
businesses
using
HCFC­
22
and
HCFC­
142b
and
published
the
findings
in
the
2001
NODA
mentioned
above.
Subsequently,
EPA
addressed
those
concerns
in
the
2002
final
rule
mentioned
above.

Furthermore,
as
described
in
the
preamble
to
this
rule,
EPA
deferred
its
decision
on
the
use
of
HCFC­
141b
in
the
2002
final
rule
in
order
to
address
the
concerns
of
the
small
businesses
using
HCFC­
141b.
Through
a
separate
process,
those
small
businesses
in
the
spray
foam
sector
requested
an
extension
of
the
January
1,
2003
production
phaseout
of
HCFC­
141b
in
order
to
complete
the
field
testing
and
approvals
necessary
to
transition
to
other
alternatives.
In
response
to
the
request,
EPA
established
the
HCFC­
141b
Exemption
Allowance
Petition
process
in
the
HCFC
Allowance
Allocation
final
rule
(
January
21,
2003,
68
FR
2819).
This
process
allows
formulators
to
petition
EPA
for
new
production
of
HCFC­
141b
if
they
do
not
have
access
to
stockpiled
HCFC­
141b
and
meet
the
other
criteria
in
40
CFR
82.16(
h).
34
After
two
years
of
development
and
field
testing
in
the
spray
foam
sector,
alternatives
are
technically
and
economically
viable
and
products
containing
those
alternatives
are
commercially
available.
The
majority
of
the
spray
foam
sector
has
overcome
the
technical
constraints
and
will
be
able
to
meet
the
demand
in
2005
with
alternatives.
EPA's
analysis,
found
at
Air
Docket
OAR­

2003­
0228,
demonstrates
that
due
to
the
availability
of
multiple
alternatives
and
the
depletion
of
stockpiled
HCFC­
141b,
the
impact
on
the
formulators
and
contractors
in
the
spray
foam
sector
is
negligible.
Spray
foam
is
the
largest
remaining
application
within
the
foam
industry
that
has
not
completely
transitioned
to
alternatives.
The
majority
of
the
foam
industry
transitioned
according
to
the
production
phaseout
of
HCFC­
141b
on
January
1,
2003.

There
are
numerous
alternatives
available
and
some
users
have
independently
transitioned
away
from
the
substances
listed
as
unacceptable.
The
actions
herein
may
well
provide
benefits
to
small
businesses
who
have
transitioned
to
alternatives
and
made
good
faith
efforts
and
investments
in
the
transition.
After
considering
the
economic
impacts
of
today's
rule
on
small
entities,
EPA
has
concluded
that
this
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104­
4,

establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,

EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
35
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
State,
local,
and
tribal
governments,
in
the
aggregate,
or
the
private
sector
in
any
one
year.
Today's
final
rule
does
not
affect
State,

local,
or
tribal
governments.
The
enforceable
requirements
of
the
rule
for
the
private
sector
affect
only
a
small
number
of
foam
manufacturers
using
HCFC­
141b
in
the
United
States,
and
there
are
technically
viable
alternatives
for
those
manufacturers.
The
impact
of
this
rule
on
the
private
sector
is
less
than
$
100
million
per
year.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
This
regulation
36
applies
directly
to
facilities
that
use
these
substances
and
not
to
governmental
entities.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
final
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
This
regulation
applies
directly
to
facilities
that
use
these
substances
and
not
to
governmental
entities.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
6,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
"
Policies
that
have
tribal
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
government
and
the
Indian
tribes,
or
on
the
37
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes."

This
final
rule
does
not
have
tribal
implications.
It
will
not
have
substantial
direct
effects
on
tribal
governments,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.

Today's
final
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments,
because
this
regulation
applies
directly
to
facilities
that
use
these
substances
and
not
to
governmental
entities.
Thus,
Executive
Order
13175
does
not
apply
to
this
proposed
rule.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

This
final
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866,
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.
The
use
of
HCFC­
141b
in
foam
manufacture
occurs
in
the
workplace
where
we
38
expect
adults
are
more
likely
to
be
present
than
children,
and
thus,
the
agents
do
not
put
children
at
risk
disproportionately.

This
final
rule
is
not
subject
to
Executive
Order
13045
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"

(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
This
action
would
impact
the
manufacture
of
foam
using
HCFC­
141b.
Further,
we
have
concluded
that
this
rule
is
not
likely
to
have
any
adverse
energy
effects.

I.
National
Technology
Transfer
and
Advancement
Act
As
noted
in
the
proposed
rule,
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Pub
L.
No.
104­
113,
§
12(
d)
(
15
U.
S.
C.
272
note)

directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
39
use
available
and
applicable
voluntary
consensus
standards.
This
action
does
not
involved
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.

J.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
§
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
Major
rule
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.

§
804(
2).
This
rule
will
be
effective
[
insert
date
60
days
after
publication].

VII.
Additional
Information
For
more
information
on
EPA's
process
for
administering
the
SNAP
program
or
criteria
for
evaluation
of
substitutes,
refer
to
the
SNAP
final
rulemaking
published
in
the
Federal
Register
on
March
18,
1994
(
59
FR
13044).
Notices
and
rulemakings
under
the
SNAP
program,
as
well
as
EPA
publications
on
protection
of
stratospheric
ozone,
are
available
from
EPA's
Ozone
Depletion
website
at
"
http://
www.
epa.
gov/
ozone/"
and
from
the
Stratospheric
Protection
Hotline
number
at
(
800)
296­
1996.
40
List
of
Subjects
in
40
CFR
Part
82
Environmental
protection,
Administrative
practice
and
procedure,
Air
pollution
control,

Reporting
and
recordkeeping
requirements.

Protection
of
Stratospheric
Ozone;
Listing
of
Substitutes
in
the
Foam
Sector
Page
41
of
42
pages
41
Dated:
______________________

________________________________________

Michael
O.
Leavitt,
Administrator
For
the
reasons
set
out
in
the
preamble,
40
CFR
part
82
is
amended
as
follows:

PART
82
­
PROTECTION
OF
STRATOSPHERIC
OZONE
1.
The
authority
citation
for
Part
82
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
Sec.
7414,
7601,
7671
­
7671q.

2.
Subpart
G
is
amended
by
adding
Appendix
K
to
read
as
follows:

Subpart
G
­
Significant
New
Alternatives
Policy
Program
*****

Appendix
K
to
Subpart
G
­
Substitutes
Subject
to
Use
Restrictions
and
Unacceptable
Substitutes
Listed
in
the
final
rule,
effective
[
insert
date
60
days
after
Federal
Register
publication
date].

FOAM
BLOWING
UNACCEPTABLE
SUBSTITUTES
End­
use
Substitute
Decision
Comments
1exemptions
for
specific
applications
are
identified
in
the
list
of
acceptable
substitutes
42
All
foam
end­
uses:
­
rigid
polyurethane
and
polyisocyanurate
laminated
boardstock
­
rigid
polyurethane
appliance
­
rigid
polyurethane
spray
and
commercial
refrigeration,
and
sandwich
panels
­
rigid
polyurethane
slabstock
and
other
foams
­
polystyrene
extruded
insulation
boardstock
and
billet
­
phenolic
insulation
board
and
bunstock
­
flexible
polyurethane
­
polystyrene
extruded
sheet
Except
for1:
­
space
vehicle
­
nuclear
­
defense
­
research
and
development
for
foreign
customers
HCFC­
141b
Unacceptable
Alternatives
exist
with
lower
or
zero­
ODP.
