[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Proposed Rules]
[Pages 21579-21580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06334]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 84

[EPA-HQ-OAR-2021-0289; FRL-10805-01-OAR]


Notification of Determination: Petitions Denied Under Subsection 
(i) of the American Innovation and Manufacturing Act of 2020

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition denials.

-----------------------------------------------------------------------

SUMMARY: The purpose of this notification is to alert the public to and 
provide explanation of the Environmental Protection Agency's (EPA) 
decisions to deny two petitions submitted under the American Innovation 
and Manufacturing Act of 2020. The first petition requests that the 
Environmental Protection Agency provide an exemption for the use of 
certain regulated substances in pain relief sprays and the second 
petition requests that the Agency subject gas canisters of certain 
regulated substances to import restrictions established under the HFC 
Allocation Framework Rule. These petitions were submitted to the Agency 
pursuant to its authority under the Act to promulgate rules that 
restrict, fully, partially, or on a graduated schedule, the use of a 
regulated substance in the sector or subsector in which the regulated 
substance is used.

DATES: EPA denied the two petitions referenced in this notification via 
letters signed on March 21, 2023. Any petitions for review of the final 
letters denying the petitions for rulemaking must be filed in the Court 
of Appeals for the appropriate circuit on or before June 12, 2023.

FOR FURTHER INFORMATION CONTACT: Allison Cain, Stratospheric Protection 
Division, Office of Atmospheric Programs (6205A), Environmental 
Protection Agency, telephone number: 202-564-1566; email address: 
[email protected]. You may also visit EPA's website at https://www.epa.gov/climate-hfcs-reduction for further information.

SUPPLEMENTARY INFORMATION: 

I. Background

    Subsection (i) of the American Innovation and Manufacturing Act of 
2020 (AIM Act or the Act),\1\ entitled ``Technology Transitions,'' 
provides that the Administrator may by rule restrict, fully, partially, 
or on a graduated schedule, the use of a regulated substance in the 
sector or subsector in which the regulated substance is used. Under 
subsection (i)(3) a person may petition the Environmental Protection 
Agency (EPA) to promulgate a rule for the restriction on the use of a 
regulated substance \2\ in a sector or subsector, and the Act states 
that the petition shall include a request that the Administrator 
negotiate with stakeholders in accordance with subsection (i)(2)(A). 
Once EPA receives a petition, the AIM Act directs the Agency to make 
petitions publicly available within 30 days of receipt and to grant or 
deny the petition within 180 days of receipt. If the EPA denies a 
petition, the Agency shall publish in the Federal Register an 
explanation of the denial.
---------------------------------------------------------------------------

    \1\ The AIM Act was enacted as section 103 in Division S, 
Innovation for the Environment, of the Consolidated Appropriations 
Act, 2021 (Pub. L. 116-260), and is codified at 42 U.S.C. 7675.
    \2\ The Act provides that ``regulated substance'' refers to 
those substances included in the list of regulated substances in 
subsection (c)(1) of the Act and those substances that the 
Administrator has designated as a regulated substance under 
subsection (c)(3). Subsection (c)(1) lists 18 saturated 
hydrofluorocarbons (HFCs), and by reference their isomers not so 
listed, as regulated substances. This is the current list of 
regulated substances, as no additional substances have been 
designated as regulated substances under subsection (c)(3).
---------------------------------------------------------------------------

II. Which petitions is EPA denying?

    The Agency received two petitions that were submitted under 
subsection (i) of the AIM Act. The first petition requests that the 
Environmental Protection Agency provide an exemption for the use of 
certain regulated substances in pain relief sprays and the second 
petition requests that the Agency subject gas canisters of certain 
regulated substances to import restrictions established under the HFC 
Allocation Framework Rule.\3\ These petitions were submitted by the 
Gebauer Company (hereby, ``Gebauer'') on September 23, 2022, and A.V.W. 
Inc (hereby, ``AVW'') on December 15, 2022, respectively. After 
reviewing these petitions and considering, to the extent practicable in 
light of the information provided in the submissions, the

[[Page 21580]]

``Factors for Determination'' in subsection (i)(4) of the AIM Act, EPA 
denied the two petitions.\4\
---------------------------------------------------------------------------

    \3\ Links to copies of these petitions and other petitions 
received to date can be found in the table at https://www.epa.gov/climate-hfcs-reduction/petitions-under-aim-act. EPA has a docket 
(Docket ID EPA-HQ-OAR-2021-0289), where all subsection (i) petitions 
are posted, and where the public may submit information related to 
those petitions.
    \4\ The letters denying the two petitions are available in the 
docket for this action.
---------------------------------------------------------------------------

    The petition submitted by Gebauer sought an ``Acceptable Use 
Exemption'' for HFC-245fa and HFC-134a for use as a ``pain relief 
spray.'' The petition noted these HFCs are currently used by Gebauer to 
formulate its FDA-cleared medical devices, which provide temporary pain 
relief or pain prevention by cooling tissue surfaces. EPA explained in 
its denial that after Gebauer's submitted its petition, the Agency 
issued a proposed rule titled, ``Phasedown of Hydrofluorocarbons: 
Restrictions on the Use of Certain Hydrofluorocarbons Under Subsection 
(i) of the American Innovation and Manufacturing Act of 2020'' (87 FR 
76738, December 15, 2022). This rule proposed restrictions on the use 
of HFCs in aerosol products, among others, and specifically addressed 
the need for an exemption for HFC use in ``pain relief sprays.'' 
Because EPA has already initiated a rulemaking that addresses the HFC 
use covered in this petition, EPA denied the petition as moot. Granting 
a petition initiates a rulemaking where the Agency will examine 
restrictions on the use of HFCs covered by the petition. EPA is in the 
process of assessing whether to allow for continued use of HFCs in 
``pain relief sprays,'' factoring in, to the extent practicable, the 
considerations provided in AIM Act subsection (i)(4), in the current 
rulemaking. Initiating a new rulemaking on this question while the 
current rulemaking is ongoing is therefore unnecessary. This denial 
does not address the merits of the request submitted by Gebauer.\5\
---------------------------------------------------------------------------

    \5\ EPA notes the petition failed to satisfy the statutory 
requirement to address negotiated rulemaking. See AIM Act subsection 
(i)(3)(A).
---------------------------------------------------------------------------

    The petition submitted by AVW requested that EPA ``subject the 
importation of small gas canisters containing 100% HFC-152a to the same 
import regulations that govern bulk shipments of HFC-152a.'' As 
explained in its denial, EPA already considered and decided the issue 
of whether aerosol cans should be treated as bulk in the HFC Allocation 
Framework Rule.\6\ Therefore, to the extent that this petition was a 
request to alter how allowances are expended under that program, EPA 
denied the petition on the basis that the request was not properly made 
under subsection (i) of the AIM Act. Subsection (i) authorizes the EPA 
to promulgate restrictions specific to uses of HFCs in particular 
sectors and subsectors. The AVW petition referenced ``packaged 
dusters'' as one use for EPA to restrict under subsection (i). The 
December 15, 2022 proposed rule (87 FR 76738) proposed restrictions on 
the use of HFCs in aerosol products, among others, and specifically 
proposed restrictions on the use of dusters. Because EPA had already 
initiated a rulemaking that addressed the use and sector requested by 
the petition, EPA therefore also denied this aspect of the petition as 
moot.\7\
---------------------------------------------------------------------------

    \6\ The HFC Allocation Framework Rule, also referred to as the 
``Phasedown of Hydrofluorocarbons: Establishing the Allowance 
Allocation and Trading Program Under the American Innovation and 
Manufacturing Act,'' can be found in the Federal Register (86 FR 
55116).
    \7\ EPA notes the petition failed to satisfy the statutory 
requirement to address negotiated rulemaking. See AIM Act subsection 
(i)(3)(A).
---------------------------------------------------------------------------

III. What happens after EPA denies a petition?

    Where the Agency denies a petition submitted under subsection (i) 
of the AIM Act, the statute requires that the Administrator shall 
publish in the Federal Register an explanation of the denial per 
subsection (i)(3)(C), which the Agency is doing through this 
notification.

Judicial Review

    The AIM Act provides that certain sections of the Clean Air Act 
(CAA) ``shall apply to'' the AIM Act and actions ``promulgated by the 
Administrator of [EPA] pursuant to [the AIM Act] as though [the AIM 
Act] were expressly included in title VI of [the CAA].'' 42 U.S.C. 
7675(k)(1)(C). Among the applicable sections of the CAA is section 307, 
which includes provisions on judicial review. Under section 307(b)(1) 
any petitions for review of these actions denying the petitions must be 
filed in the United States Court of Appeals for the appropriate circuit 
within 60 days from the date this notification is published in the 
Federal Register.

Cynthia A. Newberg,
Director, Stratospheric Protection Division.
[FR Doc. 2023-06334 Filed 4-10-23; 8:45 am]
BILLING CODE 6560-50-P


