Phasedown of Hydrofluorocarbons: Adjustment to the Hydrofluorocarbon Production Baseline, 44220-44225 [2023-14189]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 88, Number 132 (Wednesday, July 12, 2023)]
[Rules and Regulations]
[Pages 44220-44225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 84

[EPA-HQ-OAR-2023-0286; FRL-10894-02-OAR]


Phasedown of Hydrofluorocarbons: Adjustment to the 
Hydrofluorocarbon Production Baseline

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency is taking final 
action to correct the production baseline to reflect corrected 
calculations for the phasedown of hydrofluorocarbons pursuant to the 
American Innovation and Manufacturing Act.

DATES: This final rule is effective on September 11, 2023.

ADDRESSES: The U.S. Environmental Protection Agency (EPA) has 
established a docket for this action under Docket ID No. EPA-HQ-OAR-
2023-0286. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard-
copy form. Publicly available docket materials are available 
electronically through https://www.regulations.gov or in hard copy at 
the EPA Docket Center, Room 3334, WJC West Building, 1301 Constitution 
Avenue NW, Washington, DC. The 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 EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: John Feather, U.S. Environmental 
Protection Agency, Stratospheric Protection Division, telephone number: 
202-564-1230; or email address: [email protected]. You may also 
visit EPA's website at https://www.epa.gov/climate-hfcs-reduction for 
further information.

SUPPLEMENTARY INFORMATION: Acronyms that are used in this rulemaking 
that may be helpful include:

AIM Act--American Innovation and Manufacturing Act of 2020
CAA--Clean Air Act
CBI--Confidential Business Information
CFR--Code of Federal Regulations
CRA--Congressional Review Act
e-GGRT--Electronic Greenhouse Gas Reporting Tool
EPA--U.S. Environmental Protection Agency
FR--Federal Register
GHGRP--Greenhouse Gas Reporting Program
GWP--Global Warming Potential
HFC--Hydrofluorocarbon
ICR--Information Collection Request
MTEVe--Metric Tons of Exchange Value Equivalent
NAICS--North American Industry Classification System
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act

[[Page 44221]]

RIA--Regulatory Impact Analysis
SISNOSE--Significant Economic Impact on a Substantial Number of 
Small Entities
UMRA--Unfunded Mandates Reform Act

    Regulated Entities. You may be potentially affected by this action 
if you produce HFCs. Potentially affected categories, North American 
Industry Classification System (NAICS) codes, and examples of 
potentially affected entities are included in Table 1.

     Table 1--NAICS Classification of Potentially Affected Entities
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               NAICS code                   NAICS industry description
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325120.................................  Industrial Gas Manufacturing.
325199.................................  All Other Basic Organic
                                          Chemical Manufacturing.
325998.................................  All Other Miscellaneous
                                          Chemical Product and
                                          Preparation Manufacturing.
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    This table is not intended to be exhaustive, but rather provide a 
guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this section could also 
be affected. If you have any questions regarding the applicability of 
this action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

I. Background

    On December 27, 2020, the AIM Act was enacted as section 103 in 
Division S, Innovation for the Environment, of the Consolidated 
Appropriations Act, 2021 (42 U.S.C. 7675). Subsection (e) of the AIM 
Act gives EPA authority to phase down the production and consumption of 
listed HFCs through an allowance allocation and trading program. 
Subsection (c)(1) of the AIM Act lists 18 saturated HFCs, and by 
reference any of their isomers not so listed, that are covered by the 
statute's provisions, referred to as ``regulated substances'' under the 
Act. Congress also assigned an ``exchange value'' 1 2 to 
each regulated substance (along with other chemicals that are used to 
calculate the baseline). The AIM Act requires EPA to phase down the 
consumption and production of the statutorily listed HFCs on an 
exchange value-weighted basis according to the schedule in subsection 
(e)(2)(C) of the AIM Act. The AIM Act requires that the EPA 
Administrator ensures the annual quantity of all regulated substances 
produced or consumed \3\ in the United States does not exceed the 
applicable percentage listed for the production or consumption 
baseline.
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    \1\ EPA has determined that the exchange values included in 
subsection (c) of the AIM Act are identical to the global warming 
potentials (GWPs) included in the Intergovernmental Panel on Climate 
Change (IPCC) (2007). EPA uses the terms ``global warming 
potential'' and ``exchange value'' interchangeably in this proposal.
    \2\ IPCC (2007): Solomon, S., D. Qin, M. Manning, R.B. Alley, T. 
Berntsen, N.L. Bindoff, Z. Chen, A. Chidthaisong, J.M. Gregory, G.C. 
Hegerl, M. Heimann, B. Hewitson, B.J. Hoskins, F. Joos, J. Jouzel, 
V. Kattsov, U. Lohmann, T. Matsuno, M. Molina, N. Nicholls, J. 
Overpeck, G. Raga, V. Ramaswamy, J. Ren, M. Rusticucci, R. 
Somerville, T.F. Stocker, P. Whetton, R.A. Wood and D. Wratt, 2007: 
Technical Summary. In: Climate Change 2007: The Physical Science 
Basis. Contribution of Working Group I to the Fourth Assessment 
Report of the Intergovernmental Panel on Climate Change [Solomon, 
S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor 
and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, 
United Kingdom and New York, NY, USA https://www.ipcc.ch/report/ar4/wg1.
    \3\ In the context of allocating and expending allowances, EPA 
interprets the word ``consume'' as the verb form of the defined term 
``consumption.'' For example, subsection (e)(2)(A), states the 
phasedown consumption prohibition as ``no person shall . . . consume 
a quantity of a regulated substance without a corresponding quantity 
of consumption allowances.'' While a common usage of the word 
``consume'' means ``use,'' EPA does not believe that Congress 
intended for everyone who, for example, charges an appliance or 
fills an aerosol can with an HFC to expend allowances.
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    To implement the directive that the production and consumption of 
regulated substances in the United States does not exceed the statutory 
targets, the AIM Act in subsection (e)(3) requires EPA to issue 
regulations establishing an allowance allocation and trading program to 
phase down the production and consumption of the listed HFCs. Under the 
terms of subsection (e)(2)(D)(ii), these allowances do not constitute a 
property right, but rather are limited authorizations for the 
production or consumption of regulated substances. Subsection (e)(2) of 
the Act has a general prohibition that no person \4\ shall produce or 
consume a quantity of regulated substances in the United States without 
a corresponding quantity of allowances.
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    \4\ Under the Act's term, this general prohibition applies to 
any ``person.'' Because EPA anticipates that the parties that 
produce or consume HFCs--and that would thus be subject to the Act's 
production and consumption controls--are companies or other 
entities, we frequently use those terms to refer to regulated 
parties in this rule. Using this shorthand, however, does not alter 
the applicability of the Act's or regulation's requirements and 
prohibitions. Similarly, in certain instances EPA may use these 
terms interchangeably in this rule preamble, but such differences in 
terminology should not be viewed to carry a material distinction in 
how EPA interprets or is planning to apply the requirements 
discussed herein.
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    EPA published a final rule on October 5, 2021 (86 FR 55116; 
hereinafter called the Allocation Framework Rule), that, among other 
things, established the HFC production and consumption baselines and 
codified the phasedown schedule at 40 CFR 84.7. Unless otherwise stated 
in the sections included in this notice, EPA's corrections are based on 
the same interpretations of the AIM Act, and the Clean Air Act (CAA) as 
applicable under subsection (k) of the AIM Act, as discussed in the 
Allocation Framework Rule.

II. How is EPA correcting the production baseline?

    Subsection (e)(1) of the AIM Act directs EPA to establish a 
production baseline and a consumption baseline and provides the 
equations for doing so. In the Allocation Framework Rule, EPA initially 
calculated and codified the production and consumption baselines 
according to the formulas outlined in subsection (e)(1) of the AIM Act. 
The AIM Act instructs EPA to calculate the production and consumption 
baseline by, among other things, using the average annual quantity of 
all regulated substances produced and consumed in the United States 
from January 1, 2011, through December 31, 2013. In subsection 
(e)(2)(C) of the AIM Act, Congress provided the HFC phasedown schedule 
measured as a percentage of the baseline. In the Allocation Framework 
Rule EPA codified the production and consumption baselines at 40 CFR 
84.7(b)(2) and the total allowance quantities that could be allocated 
for each year at 40 CFR 84.7(b)(3). A complete description of EPA's 
process in developing the codified baseline figures can be found in the 
Allocation Framework Rule at 86 FR 55137-55142.
    After EPA finalized the Allocation Framework Rule, one company 
informed EPA that the 2011 and 2012 HFC import data that it had 
reported to the Greenhouse Gas Reporting Program (GHGRP) and certified 
per 40 CFR 98.4(e)(1) as true, accurate, and complete under penalty of 
law, was, in fact, significantly more than its actual import 
quantities. The company submitted and certified revised reports to the 
GHGRP for the relevant years on March 16, 2022. Because EPA used the 
company's 2011 and 2012 HFC import data in the calculation of the 
consumption baseline, the Agency's calculated and codified consumption 
baseline was high. The company then submitted and certified revised 
reports. EPA verified the corrected data by reviewing the importer's 
invoices and comparing the reported data to import data provided by 
CBP. In a separate rulemaking, ``Phasedown of Hydrofluorocarbons: 
Allowance Allocation Methodology for 2024 and Later Years'' (87 FR 
66372, November 3, 2022), the Agency proposed to revise

[[Page 44222]]

the consumption baseline and its associated phasedown schedule to 
account for corrected data. Specifically, EPA proposed to revise the 
consumption baseline from 303,887,017 metric tons of exchange value 
equivalent (MTEVe) to 300,257,386 MTEVe, a decrease of 3,629,631 MTEVe, 
to account for that error. The Agency also stated that it would include 
any additional verified data revisions from the 2011 through 2013 
timeline in the revision to the consumption baseline. Because the 
erroneous data related only to imports, EPA did not propose to reopen 
the production baseline in that rulemaking.
    As described in that proposal, EPA separately requested entities 
verify, and if necessary correct, the data \5\ available to EPA on 
those entities' historic consumption activities from 2011 through 2021 
for purposes of the AIM Act. EPA sent an electronic communication or 
letter to all entities that were known, or likely, to have had 
production or consumption activity of regulated substances from 2011 
through 2021 that they had until September 26, 2022, to verify, and if 
necessary correct, the data available to EPA on those entities' 
historic consumption activities from 2011 through 2021.\6\ EPA provided 
further notice through the aforementioned November 3, 2022 proposal of 
a final opportunity to submit corrected data to the Agency through the 
electronic Greenhouse Gas Reporting Tool (e-GGRT) by the close of the 
comment period on December 19, 2022, in the case that any entity with 
historic activity related to regulated substances from 2011 through 
2021 did not receive a letter or electronic communication from EPA.
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    \5\ These data were certified per 40 CFR 98.4(e)(1) by the 
importer as true and accurate under penalty of the CAA at the time 
of original submission.
    \6\ This request was for purposes of implementing the AIM Act. 
Nothing in this letter or in the complementary process described 
below relieves any entity of obligations under the GHGRP regulations 
codified in 40 CFR part 98. EPA notes that failure to submit a 
report or submitting a fraudulent report may be considered a 
violation of the CAA subject to penalties and fines.
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    As part of EPA's review process of the data corrections and 
submissions while preparing to finalize the revised consumption 
baseline, EPA also identified an additional correction to be made to 
the baseline calculation necessary to maintain accuracy. Specifically, 
EPA reviewed offsite transformation and destruction totals reported by 
companies for the 2011-2013 period and made the following additional 
calculation steps:
    (1) Eliminated redundant totals already reported elsewhere as 
onsite transformation and destruction
    (2) eliminated redundant totals sent to another facility for 
destruction and that are already excluded from reported production 
because the gases are removed from the production process as a 
byproduct or other waste
    (3) took the remaining reported offsite transformation and 
destruction totals and subtracted that from overall production.
    Previously, offsite transformation and destruction totals had not 
been factored into the calculation as EPA did not have sufficient 
verification of this data. However, during this most recent review of 
the baseline calculation and underlying data, EPA was able to conduct 
additional data verification to determine the quantity of material sent 
offsite which was not reported elsewhere and therefore should be 
subtracted from total production. Specifically, for all companies with 
offsite transformation and destruction activity from 2011-2013, EPA 
reviewed reporting forms which identify the facility to which material 
was sent for offsite transformation or destruction. EPA then determined 
whether these recipient facilities separately report activity to 40 CFR 
part 98, subpart OO. If a recipient facility did not separately report 
destruction activity, EPA subtracted totals of material sent offsite 
for destruction from total production.
    This corrected calculation step led to a corrected input that is 
used in both the production and consumption baselines since the same 
calculation step was used to determine both the production and 
consumption baselines in the Allocation Framework Rule. Accordingly, in 
this rulemaking EPA is correcting the codified production baseline and 
the associated phasedown schedule. Specifically, EPA is correcting the 
production baseline to be 382,535,439 MTEVe, down from the originally 
codified figure of 382,554,619 MTEVe. This correction of the production 
baseline amounts to a 0.005 percent change in the baseline. Once EPA 
applies the relevant phasedown step to the baseline and then allocates 
the resulting allowances among eligible recipients, the change in the 
production baseline is expected to have an extremely small effect on 
individual entities' allocations. This corrected production baseline 
starts affecting allowance allocations for calendar year 2024. Because 
of the prior framing of EPA's regulations, specifically the fact that 
there was no prior allocation methodology that would apply to calendar 
year 2024 allowances and beyond, no entities should have had a 
reasonable expectation of allowance allocation levels for any 
individual entity. Therefore, this alteration of the production 
baseline will not affect any reasonable reliance interests of the 
regulated communities.
    Correcting the production baseline changes the total consumption 
cap in MTEVe for regulated substances in the United States in each 
year. Therefore, EPA is correcting the table of production and 
consumption limits at 40 CFR 84.7(b)(3) by replacing the previously 
codified total production values in Table 2, column 2 of this preamble 
with the corrected total production values in column 3.

         Table 2--Corrected Limit of Total Production Allowances
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                                        Previously
                                      codified total    Corrected total
               Year                     production         production
                                         (MTEVe)            (MTEVe)
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2024-2028.........................        229,532,771        229,521,264
2029-2033.........................        114,766,386        114,760,632
2034-2035.........................         76,510,924         76,507,088
2036 and thereafter...............         57,383,193         57,380,316
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III. Good Cause Findings

    EPA is promulgating this rule as a final action without prior 
notice or opportunity for public comment because the good cause 
exception under APA section 553(b)(B), 5 U.S.C. 553(b)(B), applies 
here. If APA section 553(b)(B) did not apply, this rule would be 
subject to the rulemaking procedures

[[Page 44223]]

in CAA section 307(d).\7\ However, CAA section 307(d) does not apply 
``in the case of any rule or circumstance referred to in [APA section 
553(b)(B)]'' \8\--i.e., the good cause exception noted above--making 
this rule subject to the rulemaking procedures in APA section 553 
instead, other than subsection 553(b).\9\ APA section 553(b)(B) allows 
an agency to promulgate a rule without providing prior notice and 
opportunity for public comment ``when the agency for good cause finds 
(and incorporates the finding and a brief statement of reasons therefor 
in the rule issued) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.''
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    \7\ The AIM Act provides that the Clean Air Act's Sec.  307 
``shall apply to'' actions under the AIM Act ``as though [Section 
7675] were expressly included in title VI'' of the Clean Air Act. 42 
U.S.C. 7675(k)(1)(C). Clean Air Act Section 307(d) applies to 
``promulgation or revision of regulations under subchapter VI of 
[the CAA].'' 307(d)(1)(I). See also CAA section 307(d)(3); 42 U.S.C. 
7607(d)(3) (requiring publication of a proposed rule with an 
opportunity for public comment).
    \8\ See CAA section 307(d)(1); 42 U.S.C. 7607(d)(1).
    \9\ APA section 553(b) generally requires notice-and-comment 
rulemaking procedures unless, as here, an exception applies under 
section 553(b)(A) or (B). 5 U.S.C. 553(b).
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    EPA finds that there is good cause for promulgating this final rule 
without providing prior notice and an opportunity for public comment 
because providing such notice and opportunity for comment, with respect 
to the amendments promulgated in this action, is impracticable, 
unnecessary, and contrary to the public interest. The correction made 
through this rulemaking is necessary to maintain accuracy of EPA's 
internal processing of data used to calculate the AIM Act production 
baseline. The overall formula used to calculate the production baseline 
was defined by Congress in the statute, and therefore EPA has no 
discretion in the formula used to calculate the production baseline. 
Accordingly, there would be no purpose in seeking public comment on a 
formula prescribed by statute to calculate the production baseline.
    The data that is input into this formula is based on individual 
company reports on historic production of HFCs. This is relevant to 
EPA's good cause finding for several reasons. First, company-level 
production data has been regulatorily determined to be CBI. As a 
result, company-specific data, including production data, used to 
establish the baselines are confidential and cannot be publicly 
released. As discussed in the Allocation Framework Rule (86 FR 55192), 
many of the data elements reported to 40 CFR part 98, subpart OO were 
determined to be, and are treated as, confidential by EPA (see, e.g., 
76 FR 30782, May 26, 2011; 76 FR 73886, November 29, 2011; 77 FR 48072, 
August 13, 2012, 78 FR 71904, November 29, 2013; and, 81 FR 89188, 
December 9, 2016).\10\ Given the confidentiality of most data involved 
in the Agency's baseline calculation, EPA cannot release detailed 
demonstrations of the baseline calculation. This has limited the 
information provided in prior notices on EPA's baseline calculations 
such that under any rulemaking scenario, the public does not have full 
access to view the Agency's baseline calculations given the need to 
respect existing confidentiality determinations and governing 
regulations.
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    \10\ For a summary, see https://www.epa.gov/sites/production/files/2020-09/documents/ghgrp_cbi_tables_for_suppliers_8-28-20_clean_v3_508c.pdf.
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    Second, EPA has already gone through significant effort to ensure 
that this historic production data is as accurate as possible. EPA 
published a notice of data availability concerning this specific data 
on February 11, 2021 (86 FR 9059). EPA also requested, and received, 
new and revised versions of the data at issue in this rulemaking in 
response to the notice of proposed rulemaking for the Allocation 
Framework Rule. As described earlier in this notice, EPA requested that 
entities verify, and if necessary correct, the data \11\ available to 
EPA on those entities' historic production activities from 2011 through 
2021 for purposes of the AIM Act. EPA sent an electronic communication 
or letter to all entities that were known, or likely, to have had 
production activity of regulated substances from 2011 through 2021 that 
they had until September 26, 2022, to verify, and if necessary correct, 
the data available to EPA on those entities' historic consumption 
activities from 2011 through 2021.\12\ Therefore, there is no 
reasonable basis to expect correction to the baseline calculation 
inputs if EPA were to provide for notice and comment of this action.
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    \11\ These data were certified per 40 CFR 98.4(e)(1) by the 
producer as true and accurate under penalty of the CAA at the time 
of original submission.
    \12\ This request was for purposes of implementing the AIM Act. 
Nothing in this letter or in the complementary process described 
below relieves any entity of obligations under the GHGRP regulations 
codified in 40 CFR part 98. EPA notes that failure to submit a 
report or reporting a fraudulent report may be considered a 
violation of the CAA subject to penalties and fines.
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    Third, when EPA initially established the production baseline for 
the phasedown of HFCs, the Agency did so through a notice and comment 
rulemaking process. Accordingly, the public has already had an 
opportunity to review and comment on EPA's general approach to 
establishing the production baseline. This rulemaking simply corrects 
the baseline calculation to maintain accuracy.
    EPA has also determined that it is in the public interest to 
correct the production baseline such that the change can take effect 
ahead of EPA's allocation of production allowances on or before October 
1, 2023. Under the AIM Act, by October 1 of each calendar year EPA must 
calculate and determine the quantity of production and consumption 
allowances for the following year. The quantity of production 
allowances available each year is based on taking a percentage of the 
calculated baseline. The Agency intends to issue allowances for the 
2024 calendar year no later than October 1, 2023. As noted in the 
Allocation Framework Rule, while the Kigali Amendment adopted under the 
Montreal Protocol has certain marked differences from the AIM Act, the 
two documents have a nearly identical list of HFCs to be phased down 
following the same schedule. The United States ratified the Kigali 
Amendment on October 31, 2022, and according to obligations pursuant to 
that ratification, provided the Secretariat to the Montreal Protocol 
with the country's calculated consumption and production baselines on 
April 28, 2023. The production baseline provided to the Secretariat 
matches the production baseline being finalized in this rulemaking. 
There are important policy reasons to align the operative production 
baselines for domestic and international purposes. If the production 
baseline correction is not effective by October 1, 2023, EPA would 
allocate 229,532,771 MTEVe production allowances. However, the United 
States would have an international obligation under the Kigali 
Amendment to not produce more than 229,521,264 MTEVe of HFCs. Unaligned 
production baselines would mean that the United States domestic system 
would allow for production of 11,507 MTEVe of HFCs beyond the 
international obligation. There would not be sufficient time to allow 
for public notice and comment on the correction to the production 
baseline made through this rulemaking for AIM Act purposes and still 
have the baseline correction effective in time for allocation of 
calendar year 2024 allowances. Therefore, EPA has determined it is 
contrary to public interest to provide an opportunity for comment in 
this instance.
    Finally, as noted earlier in this notice, the alteration made to 
the production baseline is very small. Specifically, the

[[Page 44224]]

change is a 0.005 percent reduction in the production baseline. EPA 
does not anticipate that any stakeholder would be meaningfully affected 
by this baseline correction and therefore EPA has determined that 
providing notice and an opportunity for comment is unnecessary.
    Thus, EPA finds good cause under APA section 553(b)(B) to take this 
final action without prior notice or opportunity for comment because 
providing notice and an opportunity for comment would be unnecessary, 
impracticable, and contrary to the public interest.

IV. Judicial Review

    The AIM Act provides that certain sections of the 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. Section 307(b)(1) provides, in part, 
that petitions for review must only be filed in the United States Court 
of Appeals for the District of Columbia Circuit: (i) when the agency 
action consists of ``nationally applicable regulations promulgated, or 
final actions taken, by the Administrator,'' or (ii) when such action 
is locally or regionally applicable, but ``such action is based on a 
determination of nationwide scope or effect and if in taking such 
action the Administrator finds and publishes that such action is based 
on such a determination.'' For locally or regionally applicable final 
actions, the CAA reserves to the EPA complete discretion whether to 
invoke the exception in (ii).
    The final action herein noticed is ``nationally applicable'' within 
the meaning of CAA section 307(b)(1). The AIM Act imposes a national 
cap on the total number of allowances available for each year for all 
entities nationwide. 42 U.S.C. 7675(e)(2)(B)-(D). In this rulemaking, 
EPA is adjusting the production baseline from which the total number of 
production allowances is derived. In the alternative, to the extent a 
court finds the final action to be locally or regionally applicable, 
the Administrator is exercising the complete discretion afforded to him 
under the CAA to make and publish a finding that the action is based on 
a determination of ``nationwide scope or effect'' within the meaning of 
CAA section 307(b)(1).\13\ In deciding to invoke this exception, the 
Administrator has taken into account a number of policy considerations, 
including his judgment regarding the benefit of obtaining the D.C. 
Circuit's authoritative centralized review, rather than allowing 
development of the issue in other contexts, in order to ensure 
consistency in the Agency's approach to allocation of production 
allowances in accordance with EPA's national regulations in 40 CFR part 
84. The final action treats all affected entities consistently in how 
the 40 CFR part 84 regulations are applied. The Administrator finds 
that this is a matter on which national uniformity is desirable to take 
advantage of the D.C. Circuit's administrative law expertise and 
facilitate the orderly development of the basic law under the AIM Act 
and EPA's implementing regulations. The Administrator also finds that 
consolidated review of the action in the D.C. Circuit will avoid 
piecemeal litigation in the regional circuits, further judicial 
economy, and eliminate the risk of inconsistent results for different 
regulated entities. The Administrator also finds that a nationally 
consistent approach in this rulemaking constitutes the best use of 
agency resources. The Administrator is publishing his finding that the 
action is based on a determination of nationwide scope or effect in the 
Federal Register as part of this notice. For these reasons, this final 
action is nationally applicable or, alternatively, the Administrator is 
exercising the complete discretion afforded to him by the CAA and finds 
that the final action is based on a determination of nationwide scope 
or effect for purposes of CAA section 307(b)(1) and is hereby 
publishing that finding in the Federal Register. Under section 
307(b)(1) of the CAA, petitions for judicial review of this action must 
be filed in the United States Court of Appeals for the District of 
Columbia Circuit by September 11, 2023.
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    \13\ In the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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V. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined under 
section 3(f) of Executive Order 12866, as amended by Executive Order 
14094, and was therefore not subject to a requirement for Executive 
Order 12866 review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2060-0734. There are no additional or revisions to 
existing reporting or recordkeeping requirements associated with this 
rule, which simply corrects the production baseline.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities (SISNOSE) under the 
RFA. This action will not impose any requirements on small entities 
because there are no small entities subject to this rule.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments.

E. Executive Order 13132: Federalism

    This action 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. EPA is not aware of tribal businesses engaged in 
activities that would be directly affected by this action. Based on the 
Agency's assessments, the Agency also does not believe that potential 
effects, even if direct, would be substantial. Accordingly, this action 
will not have substantial direct effects on tribes, 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. 
Thus, Executive Order 13175 does not apply to this action. EPA 
periodically updates tribal officials on air regulations through the 
monthly meetings of the

[[Page 44225]]

National Tribal Air Association and has shared information on this 
rulemaking through this and other fora.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) directs Federal 
agencies to include an evaluation of the health and safety effects of 
the planned regulation on children in federal health and safety 
standards and explain why the regulation is preferable to potentially 
effective and reasonably feasible alternatives. This action is not 
subject to Executive Order 13045 because it is not economically 
significant as defined in Executive Order 12866, and because the EPA 
does not believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. As noted, the 
production baseline correction is only 0.005 percent so is not 
anticipated to have meaningful impact on children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action applies to certain 
regulated substances and certain applications containing regulated 
substances, none of which are used to supply or distribute energy.

I. National Technology Transfer and Advancement Act and Incorporation 
by Reference

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or Indigenous 
peoples) and low-income populations.
    EPA believes that the human health or environmental conditions that 
exist prior to this action result in or have the potential to result in 
disproportionate and adverse human health or environmental effects on 
people of color, low-income populations and/or Indigenous peoples. EPA 
did extensive environmental justice analysis as part of the Allocation 
Framework Rule, which is documented in the preamble to that rulemaking 
and in the associated RIA.
    This action is not likely to result in new disproportionate and 
adverse effects on people of color, low-income populations and/or 
Indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 84

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Climate Change, Emissions, Imports, 
Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, EPA is amending 40 CFR 
part 84 as follows:

PART 84--PHASEDOWN OF HYDROFLUOROCARBONS

0
1. The authority citation for part 84 continues to read as follows:

    Authority: Pub. L. 116-260, Division S, Sec. 103.

Subpart A [Amended]

0
2. Amend Sec.  84.7 by:
0
a. In paragraph (b)(1), removing the language ``382,554,619'' and 
adding in its place ``382,535,439'';
0
b. Revising the table in paragraph (b)(3) to read as follows:


Sec.  84.7  Phasedown schedule.

* * * * *
    (b) * * *
    (3) * * *

                       Table 2 to Paragraph (b)(3)
------------------------------------------------------------------------
                                     Total production  Total consumption
               Year                      (MTEVe)            (MTEVe)
------------------------------------------------------------------------
(i) 2022-2023.....................        344,299,157        273,498,315
(ii) 2024-2028....................        229,521,263        182,332,210
(iii) 2029-2033...................        114,760,632         91,166,105
(iv) 2034-2035....................         76,507,088         60,777,403
(v) 2036 and thereafter...........         57,380,316         45,583,053
------------------------------------------------------------------------

[FR Doc. 2023-14189 Filed 7-11-23; 8:45 am]
BILLING CODE 6560-50-P