[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27532]


[[Page Unknown]]

[Federal Register: November 9, 1994]


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Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 82




Protection of Stratospheric Ozone; Refrigerant Recycling; Final Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5101-8]
RIN 2060-AF05

 
Protection of Stratospheric Ozone; Refrigerant Recycling

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is amending the 
rules on refrigerant recycling promulgated under section 608 of the 
Clean Air Act to clarify the conditions under which technician 
certification programs will be grandfathered, allowing technicians who 
had participated in voluntary technician training and certification 
programs prior to the publication of the rule to receive formal 
certification. EPA is also amending the rule to clarify the scope of 
the technician certification requirement and to provide a limited 
exemption from certification requirements for apprentices.

EFFECTIVE DATE: October 28, 1994.

ADDRESSES: Materials relevant to the rulemaking are contained in Air 
Docket No. A-92-01 at: Environmental Protection Agency, 401 M Street, 
S.W., Washington, D.C. 20460. The Air and Radiation Docket and 
Information Center is located in room M-1500, Waterside Mall (Ground 
Floor) Environmental Protection Agency, 401 M Street, S.W., Washington, 
D.C. 20460. Dockets may be inspected from 8:00 a.m. to 5:30 p.m., 
Monday through Friday. A reasonable fee may be charged for copying 
docket materials.

FOR FURTHER INFORMATION CONTACT: Debbie Ottinger, Program 
Implementation Branch, Stratospheric Protection Division, Office of 
Atmospheric Programs, Office of Air and Radiation (6205-J), 401 M 
Street, S.W., Washington, D.C. 20460 (202-233-9200). The Stratospheric 
Ozone Information Hotline at 1-800-296-1996 can also be contacted for 
further information.

SUPPLEMENTARY INFORMATION:

I. Background

    Final regulations published on May 14, 1993 (58 FR 28660) establish 
a recycling program for ozone-depleting refrigerants recovered during 
the servicing and disposal of air-conditioning and refrigeration 
equipment. The regulations require technicians to observe practices 
that minimize release of refrigerant to the environment. To ensure that 
technicians become knowledgeable of these requirements, Sec. 82.161 of 
the final rule mandates that technicians be certified by passing a 
test. For Type II, Type III, and Universal technicians, the test must 
be a closed-book, proctored examination drawn from a bank of test 
questions kept by the Environmental Protection Agency (EPA) and 
administered in a secure environment by an EPA-approved certifying 
program. For Type I technicians, a mail-in program is permitted. 
Testing and training organizations can apply to EPA to become EPA-
approved technician certifiers under Sec. 82.161(c) by demonstrating 
that they can ensure test security, provide an adequate number of 
proctors during the examination, select questions randomly from the 
appropriate sections of the test bank, and provide proof of 
certification to technicians who pass the exams. Testing and training 
organizations must also demonstrate that they grade objectively and 
keep adequate records. The specific requirements of the program are 
presented in Sec. 82.161 and appendix D of the final rule. To date, EPA 
has authorized over 90 organizations as technician certifying 
organizations.

II. This Action

A. Grandfathering

    Under Sec. 82.161(g), organizations that seek approval as 
certifying organizations can also apply to grandfather technicians who 
received training and testing under programs established prior to 
publication of the final rule in May 1993, which established the 
approval process for certification programs. Specifically, 
Sec. 82.161(g) states:

    Persons seeking approval of a technician certification program 
may also seek approval for technician certifications granted 
previously under the program. Interested persons may submit to the 
Administrator at the address in Sec. 82.160(a) verification that the 
program met all of the standards of Sec. 82.161(c) and appendix D, * 
* * except for some elements of the test subject material, in which 
case the person must submit verification that supplementary 
information on that material will be provided pursuant to appendix 
D, section (j).

    When EPA initially drafted the language requiring programs to meet 
``all of the standards of Sec. 82.161(c) and appendix D,'' these 
standards were considerably more general than those that were 
ultimately incorporated into the rule. The proposal had discussed 
possible requirements in broad terms. For instance, although the 
proposal anticipated that tests would be proctored, it did not suggest 
a specific ratio of proctors to examinees, such as the 1:50 ratio that 
appeared in the final rule. Similarly, the proposal did not specify 
whether tests would be open- or closed-book. Instead, the proposal 
included general requirements that tests be proctored, that test 
security measures be in place, and that tests be graded objectively. 
EPA believed that many voluntary programs would meet these general 
requirements.
    In response to comments, the requirements for certifying 
organizations grew more specific. EPA believed that increasing the 
specificity of the standards strengthened the technician certification 
program overall. However, EPA did not thoroughly reevaluate and revise 
its grandfathering provision to reflect the new, detailed requirements. 
Instead, the provision inappropriately continued to allow voluntary 
programs to be grandfathered only if they meet all the requirements of 
Sec. 82.161(c) and appendix D, with a limited exemption concerning test 
subject material.
    The Agency recognizes that if voluntary programs were held to each 
of the detailed standards, no voluntary technician certification 
program could be grandfathered. Appendix D contains the specific 
requirements of the technician certification program. Voluntary 
programs prior to the promulgation of the final rule could not have 
complied with these requirements, as they were not yet in existence. 
Section (a) (Test Preparation) of appendix D requires that ``[e]ach 
certifying program must assemble tests by choosing a prescribed subset 
from the EPA test bank.'' However, the test bank did not become 
available until September 30, 1993. In addition, EPA requires programs 
to certify technicians with Type I, Type II, or Type III 
certifications, depending on the level of the test passed by the 
technician. EPA developed these categories after the close of the 
public comment period to the proposed rule. However, other logical 
categorization systems are possible, and until EPA promulgated the 
final rule, many technician certification organizations categorized 
technician types differently. Furthermore, section (a) requires a 
closed-book test, yet most testing organizations prior to the final 
rule offered only open-book tests. Finally, appendix D defines the 
ratio of technicians to proctors, and establishes recordkeeping and 
reporting requirements, all requirements that organizations certainly 
could not have complied with prior to the promulgation of the final 
rule.
    Nevertheless, many voluntary programs substantially complied with 
most of the standards of appendix D, even though they used alternative 
procedures to those eventually specified in appendix D. Thus, many 
programs did proctor tests (at least the equivalent of Type II, Type 
III, and Universal tests), ensure test security, objectively grade 
tests, and keep records. Several programs also covered most of the 
required subject matter in the core and at least some technical 
sections, even when they did not establish the same categories in their 
testing as were established in the final rule (Type I, II, etc.). Where 
the content of their voluntary testing fell short of that required by 
the final rule, programs expressed their willingness to provide 
additional testing and training as needed, and the final rule provided 
for this remedy.
    EPA has always intended to grandfather these reasonably stringent 
programs. The purposes of the technician certification requirement are 
discussed fully in the preamble to the rule establishing the program 
(58 FR 28660, May 14, 1993). A primary goal of the requirement is to 
guarantee that technicians who handle refrigerants understand and 
practice safe refrigerant recovery and recycling techniques. Proper 
handling will minimize release of refrigerants to the atmosphere and 
the accompanying environmental harm.
    In promulgating the certification provision, EPA determined that 
grandfathering reasonably stringent voluntary certification programs 
would significantly further the goals of the certification requirement 
in a number of ways. By training and testing technicians in recycling 
refrigerants before the rule was promulgated (on May 14, 1993), 
reasonably stringent voluntary programs prepared technicians to comply 
with the prohibition on venting that became effective on July 1, 1992, 
and probably significantly reduced refrigerant emissions. These 
programs also served as an impetus for developing a mandatory program, 
providing a model for that program. Indeed, EPA worked with several 
voluntary programs to develop the requirements of the mandatory 
program. In addition, many voluntary organizations provided questions 
for the test bank, determining the scope of the training and the 
current exam. Finally, EPA does not want to discourage future 
participation in voluntary environmental training. Requiring repeat 
testing for all technicians who voluntarily took adequate testing and 
training could discourage people from participating in future voluntary 
programs.
    Any potential harm from grandfathering would arise from certifying 
some technicians on the basis of their participation in testing 
programs that unavoidably deviated from some of the specific 
requirements in appendix D. However, EPA will only grandfather those 
programs that substantially complied with most of the certification 
standards, and therefore largely achieved the basic goal of the 
certification requirement, to ensure that technicians understand proper 
refrigerant handling practices and the importance of such practices. In 
addition, a program can address any gaps in its coverage by providing 
supplementary information. Given substantial compliance and 
supplementary information, the marginal benefits derived from retesting 
would be relatively small. Moreover, such benefits must be compared to 
the burden of requiring retesting. Over 100,000 technicians 
participated in voluntary programs. Retesting would require almost all 
of these technicians to incur costs for time, travel and test 
administration. In light of the significant benefits and small 
potential harm expected from grandfathering reasonably stringent 
voluntary programs, EPA is modifying the requirements for 
grandfathering to ensure that an Agency drafting error does not 
disqualify these programs outright.
    To carry out this intent, EPA today is amending the grandfathering 
provision of Sec. 82.161(g) as the Agency proposed in the August 15, 
1994 Federal Register notice (59 FR 41968). This paragraph currently 
states that ``[i]nterested persons may submit to the Administrator at 
the address in Sec. 82.160(a) verification that the program met all of 
the standards of Sec. 82.161(c) and appendix D, or verification that 
the program met all of the standards of Sec. 82.161(c) and appendix D, 
except for some elements of the test subject material, in which case 
the person must submit verification that supplementary information will 
be provided pursuant to appendix D, section (j).'' (emphasis added). 
EPA is amending Sec. 82.161(g) to read ``Interested persons must submit 
to the Administrator at the address in Sec. 82.160(a) verification that 
the voluntary certification program substantially complied with most of 
the standards of Sec. 82.161(c) and appendix D of subpart F. (emphasis 
added). If the program did not test or train participants on some 
elements of the test subject material, the person must submit 
verification that supplementary information on the omitted material 
will be provided pursuant to appendix D of subpart F, section (j).''
    In reviewing requests to grandfather technicians, EPA will assess 
the extent to which a program substantially complied with most of the 
requirements in each paragraph of Sec. 82.161(c) and appendix D 
(paragraph (a) of appendix D being test preparation, (b), proctoring, 
(c), test security, etc.) and most of the basic concerns addressed by 
those paragraphs, considering the information that was available to the 
program at the time of its initial development. EPA believes that this 
is reasonable given the limited information available to these programs 
before the final rule was published and the question bank was released. 
For example, the proposed rule published on December 10, 1992, 
discussed the need for organizations to provide proctored tests under 
conditions that ensured test security, but did not specify that one 
proctor be provided for every 50 individuals taking the test as 
specified in the final rule. Under the approach taken in this document, 
voluntary programs that provided proctors, but did not necessarily 
provide exactly one proctor for every 50 individuals taking the test, 
would not be disqualified on that basis alone. EPA believes that the 
modification of the final rule to replace ``met all'' with 
``substantially complied with most'' allows EPA to review these 
programs taking such circumstances into account.
    Almost all commenters supported changing the language of 
Sec. 82.161(g) to permit grandfathering of voluntary programs, although 
one commenter opposed grandfathering. A few commenters only supported 
grandfathering for the Type I level. Commenters who supported 
grandfathering cited EPA's rationale for making the change to permit 
it, stating that technicians and contractors in the air-conditioning 
and refrigeration industry required education on the new recycling 
requirements, and that voluntary programs fulfilled this need, probably 
significantly reducing refrigerant emissions. These commenters stated 
that any shortfalls in early testing and training could (and should) be 
remedied through providing supplemental information. Commenters also 
noted that failure to grandfather voluntary programs could discourage 
future participation in voluntary environmental education programs.
    The commenter who opposed grandfathering argued that the 
certification testing being offered by new programs approved after the 
rule was published is significantly more difficult than that offered by 
one voluntary certification program. As discussed below, EPA plans to 
evaluate voluntary certification programs on a case-by-case basis and 
to consider the content of the programs' testing in its grandfathering 
decisions. As discussed above, EPA will only grandfather voluntary 
programs that substantially complied with most of the certification 
standards and that send out any supplementary information that EPA 
considers necessary. EPA believes that the benefits of grandfathering 
such programs significantly outweigh the costs.
    Three commenters supported grandfathering of voluntary programs 
only to the Type I level. These commenters claimed that none of the 
voluntary programs were as comprehensive or stringently administered as 
new programs approved after the rule was published; therefore, 
grandfathering of technicians who participated in these programs to the 
Type II or Type III level would be dangerous to the environment and 
unfair to technicians who worked hard to successfully complete new 
programs. However, the commenters believed that grandfathering to the 
Type I level was acceptable because of the smaller charge sizes and 
lesser safety concerns associated with small appliances. One of the 
commenters stated that EPA should not grandfather programs simply 
because they offered an appropriate testing environment, but should 
examine content of voluntary exams to ensure that those exams were 
``reasonably similar'' to the exams now being used for certification. 
This commenter argued that, for example, programs that did not test 
participants on the final rule, including all of those offered before 
publication of the final rule, should not be grandfathered even to Type 
I unless participants took and passed a test drawn from the Core 
section of the question bank.
    The commenters also stated that requiring grandfathered technicians 
to take further testing before granting them Type II or Type III 
certification would not represent an undue burden. One of the 
commenters expressed the opinion that the organizations that operated 
voluntary programs should make any retesting an administratively simple 
and accessible option, because they assumed this responsibility when 
they made a conscious decision to offer testing before certification 
requirements were finalized.
    EPA agrees with these commenters that the content of voluntary 
testing and training, along with the administrative criteria listed in 
appendix D, must be considered in any grandfathering decision. EPA does 
not intend to grandfather a voluntary program for a given Type if the 
program did not include any test questions or training for that Type. 
Indeed, voluntary programs differed significantly in their coverage of 
the various Types. Some programs focussed exclusively on Type I, while 
others covered Types I through III. EPA considers it appropriate to 
evaluate these programs individually, rather than adopting an across-
the-board policy to grandfather them all to the same level.
    EPA considers it appropriate to permit voluntary programs to 
address gaps within the Types covered by their original testing and 
training by providing additional materials to past participants. If a 
program has substantially complied with the standards, the voluntary 
certification should have largely met the educational purposes of 
requiring certification. While there may be some areas that a voluntary 
program did not cover, providing additional information should ensure 
that technicians achieve an acceptable level of competency. Moreover, 
requiring voluntary programs to have anticipated all of the topics 
within a Type constitutes just as impossible a hurdle as requiring them 
to have anticipated every administrative requirement in appendix D. 
Even the original final rule published on May 14, 1994, recognized this 
and permitted programs to be grandfathered as long as they ``submit 
verification that supplementary information on that material will be 
provided.''
    Thus, voluntary programs that did not fully cover the requirements 
of the final rule, for instance, will be permitted to address the 
omission by developing supplementary materials on that topic, 
submitting these materials to EPA for review and revision, and then 
sending these materials to past participants. Past participants will be 
required to sign a statement that they have read the new materials and 
to return it to the voluntary program operator before receiving their 
certification cards. EPA believes that this process will ensure that 
supplementary materials are of acceptable quality and that past 
participants read and learn them before being certified.
    EPA disagrees with the assertion that retesting on a Type would not 
represent an undue burden to technicians who participated in a 
voluntary program that covered that Type. Although EPA strongly 
believes that proctored testing in Types II and III is worthwhile for 
technicians who have not already been tested on those Types, the Agency 
believes that the costs of such testing outweigh its benefits for 
technicians who have already been tested in the Types. Those costs 
include time taken to travel to the test site and take the test, travel 
costs, and the cost of the test itself. The differences between the 
Type II and Type III tests being offered by new programs and those 
offered by many voluntary programs are not significant enough to 
warrant these additional investments. However, the Agency again 
emphasizes that if Type II or Type III was not covered by a voluntary 
program, then past participants in that program will have to take 
proctored testing before they can be certified for that Type.
    One commenter argued that EPA should require programs that operated 
after the publication of the final rule (May 14, 1993) to have met 
stricter standards than programs that operated before publication of 
the final rule. This commenter stated that programs operating after 
publication of the final rule, unlike programs operating earlier, knew 
both the administrative and content requirements that would have to be 
met by technician certification programs. The commenter claimed that 
some programs ``enticed technicians to be certified through an 
abridged, open-book testing methodology prior to October 15, 1994, with 
promises of these substandard processes being grandfathered.'' The 
commenter believed that rewarding these programs and the technicians 
who participated in them by grandfathering the programs would be unfair 
to programs and technicians who attempted to meet higher standards.
    Although EPA will consider the efforts of voluntary programs to 
update their testing content and procedures to conform to the 
requirements of the final rule after May 14, 1993, EPA will not require 
voluntary programs to have met all of those requirements to be 
grandfathered. First, grandfathering voluntary programs that 
substantially complied with the standards of Sec. 82.161 and appendix D 
should further the environmental goals of requiring certification, even 
if such programs did not fully update in conformity with the 
requirements of the final rule. If a voluntary program was already 
substantially complying with the requirements of Sec. 82.561 and 
Appendix D before May 14, 1993, then changes to its administrative 
practices after May 14, probably would not have had a significant 
impact on the overall quality of the program. At the same time, 
omissions from a program's training and testing can be addressed by 
supplying past participants with supplementary materials that 
participants must read before they receive their certification cards, 
as discussed above. Omissions can be rectified in this manner 
regardless of when the original training and testing occurred.
    The process of developing and disseminating supplementary materials 
also mitigates the unfairness perceived by the commenter; programs that 
updated their testing and training more swiftly need not develop, and 
their participants need not review, as much supplementary information 
as programs that did not update their testing and training. In 
addition, until September 30, 1993, voluntary programs continued to 
provide the only source of training in refrigerant handling. EPA 
believes that the environmental benefit of timely, reasonably stringent 
training and testing outweighed any costs associated with programs' 
failure to adhere to every requirement in the final rule.
    Second, it was not possible for programs to fully comply with the 
standards of the final rule until September 30, 1993. The bank of test 
questions was not available to programs until EPA approved the first 
set of programs, so programs could not have included these questions in 
their testing before that date. Requiring voluntary programs to have 
included such questions would automatically prevent all voluntary 
programs from being grandfathered.
    Third, programs were understandably reluctant to change their 
procedures and materials given their uncertainty over when EPA would 
announce the approval of the first set of technician certification 
programs and thereby make the bank of test questions available. As 
discussed below, the process of reviewing certification programs can 
vary greatly in length, depending upon the completeness of initial 
submissions and the speed with which programs respond to later 
inquiries. Voluntary programs, therefore, could not be certain whether 
the effort and expense of revising and reprinting old tests would be 
justified, since such revised tests would become obsolete once the 
program operator had access to the bank of test questions. The same 
uncertainty surrounded efforts to develop and disseminate new 
administrative procedures, since such procedures would also probably be 
revised once programs were approved.
    Finally, while EPA did not approve of programs advertising an 
``easy'' alternative to a future, closed-book test, determining whether 
each program that applies for grandfathering did or did not engage in 
such advertising would be very difficult. It would be even harder for 
EPA to determine whether advertising that did occur was a centrally 
organized campaign or an isolated incident. Thus, EPA does not plan to 
use reports of such advertising as a criterion in its grandfathering 
decisions.
    EPA will, however, consider requiring recertification of 
grandfathered technicians after some period, perhaps two years, if 
EPA's experience enforcing the rule indicates that their training was 
not adequate. As noted in the final rule published on May 14, 1993, EPA 
reserves the right to require recertification of any or all 
technicians, if necessary.
    Another commenter argued that EPA should grandfather only programs 
that included a ``live'' instructor and should not grandfather programs 
that offered testing without training. EPA will consider the training 
and testing offered by programs in their entirety rather than requiring 
a specific instruction technique. While a videotape cannot respond to 
questions from technicians as a ``live'' instructor can, a thorough and 
accurate videotape is preferable to an ill-informed instructor. 
Moreover, if technicians have succeeded in passing a comprehensive, 
difficult test without taking a special training course, EPA believes 
that they have demonstrated their knowledge of proper and legal 
techniques for refrigerant handling, which is the goal of technician 
certification.
    EPA is extending the November 14, 1994 deadline until May 15, 1994, 
for those technicians who successfully completed a voluntary program 
that applies for grandfathering no later than December 9, 1994. During 
the extension period, those technicians who successfully completed a 
voluntary program may continue to service, maintain, repair, and 
dispose of appliances and may buy refrigerant using the certificates or 
cards issued by the voluntary program. This additional time will allow 
EPA to consider applications by voluntary programs for grandfathering 
and will enable grandfathered voluntary programs to provide 
supplementary information, if necessary, and proof of EPA-approved 
certification to grandfathered technicians. To make their past 
participants eligible for this extension, programs must apply (or have 
already applied) within 30 days of publication of this amendment (1) to 
be approved as a technician certification program under Sec. 82.161(c), 
and (2) to grandfather technicians. This extension does not apply to 
technicians who did not participate in any voluntary program, or who 
participated in voluntary programs that have not applied and do not 
apply within the set period. These technicians must still be certified 
by November 14, 1994.
    This extension provision is very similar to the one proposed. The 
one difference between the proposed and final provisions is that the 
proposed provision would have made the extension effective until six 
months after publication of the final rule, and the final provision 
makes the extension effective until May 15, 1995, six months after the 
effective date of the technician certification requirement. EPA made 
this change to establish a simple, memorable date for the expiration of 
the extension. Because EPA expects to announce most of its 
grandfathering decisions when the rule becomes effective, and because 
EPA expects the rule to become effective before November 14, 1994, 
technicians who successfully completed voluntary programs will still 
have at least six months to complete any additional training or testing 
necessary to become certified.
    All commenters in favor of grandfathering supported providing an 
extension of the November 14 deadline to past participants in voluntary 
programs. Many commenters cited the reasons in the proposal, noting 
that the November 14 deadline did not anticipate the delay caused by 
this amendment to the regulations. The commenters agreed that it would 
be counter-productive to force technicians who completed a voluntary 
program to take additional testing simply because they do not know 
whether or not their voluntary program will be grandfathered. However, 
some commenters believed that this extension should be linked to the 
date that EPA approves or disapproves grandfathering of the voluntary 
program, rather than the date of publication of the final amendment or 
any other specific date. This would ensure, these commenters argued, 
that participants in these programs had sufficient time to complete 
additional testing and/or training, if necessary. In addition, two 
commenters argued that EPA should be required to complete review of 
grandfathering applications within a specific period (one commenter 
suggested 30 days). Finally, one commenter believed that voluntary 
programs should be required to inform their past participants within a 
specific period both whether or not the programs applied for 
grandfathering and whether EPA approved or disapproved their 
applications.
    EPA agrees with the commenters that voluntary programs and/or their 
past participants should have sufficient time to provide or obtain 
additional training or testing before the certification requirements go 
into effect for all technicians. Consequently, EPA has made a 
considerable effort to review grandfathering applications in a timely 
fashion. The Agency plans to announce the majority of its 
grandfathering decisions when this rule is published or shortly 
thereafter. EPA believes that this will leave voluntary programs and 
their past participants enough time to provide any required 
supplementary information and to complete any needed additional 
training or testing before the general six-month extension expires, 
making it unnecessary to issue separate, six-month extensions to each 
program.
    Moreover, the Agency considers a fixed, uniform deadline for 
certification essential to effective compliance with and enforcement of 
the sales restriction. The sales restriction requires that every 
refrigeration wholesaler in the U.S. understand which certification 
cards issued by approved programs and which credentials issued by 
voluntary programs are valid for refrigerant purchase. If the 
credentials issued by voluntary programs ``expired'' on different 
dates, and if each expiration date were announced individually, 
compliance with the sales restriction would become unacceptably 
complicated for wholesalers.
    EPA does not believe that imposing a deadline for review on itself 
is either necessary or practical. As noted above, the Agency expects to 
announce most, if not all, of its grandfathering decisions when this 
amendment is published. The only voluntary programs on which EPA will 
not have issued decisions will be those that have not yet applied at 
all and those that have not completed the necessary information 
requirements. The review process typically involves multiple contacts 
between EPA and the applying program; the speed with which it is 
completed depends as much upon the time taken by the program to respond 
to inquiries and develop submissions as the time taken by EPA to review 
them. Thus, even if it devotes all of its resources to the review 
process, EPA cannot guarantee that reviews will be completed within a 
given period.
    EPA agrees, however, that voluntary programs should be required to 
inform past participants of EPA's decision and to provide any required 
supplementary information within a set period, so that technicians have 
sufficient time to review the supplementary information or to obtain 
additional training and testing if it is required. EPA is therefore 
modifying the proposed amendment to require that (1) voluntary programs 
that EPA has disapproved inform their past participants of EPA's 
decision within 30 days of their disapproval, and (2) programs that EPA 
has approved inform their past participants of EPA's decision and 
provide any supplementary information within 60 days of their approval. 
EPA believes that 30 days will provide sufficient time for disapproved 
voluntary programs to generate and mail their notifications while 
allowing technicians sufficient time (approximately five months, in 
most cases) to complete a certification program approved after May 14, 
1994.
    EPA is allowing 60 days rather than 30 days for approved programs 
because the Agency recognizes that printing and disseminating 
supplementary information may take longer than printing and mailing 
simple notifications. In addition, technicians who successfully 
completed voluntary programs that are approved for grandfathering will 
need less additional training and testing than technicians who 
participated in voluntary programs that are not approved. Finally, EPA 
is requiring programs approved for grandfathering to issue 
certification cards to technicians within 60 days of the programs' 
receipt of signed statements from the technicians indicating that the 
technicians have read the supplementary information. Based on 
discussions with voluntary programs, EPA believes that this will allow 
sufficient time for voluntary programs to generate and mail the cards, 
while allowing technicians enough time to read the supplementary 
information.
    EPA does not believe that this notification requirement will impose 
an unreasonable burden on the voluntary programs that apply for 
grandfathering. These voluntary programs have undertaken to certify 
technicians in advance of the final regulations and have applied to EPA 
for grandfathering. Given their voluntary assumption of responsibility, 
it is reasonable to place on the voluntary programs the 
responsibilities (1) to inform their participants whether their 
applications for grandfathering were successful and (2) to send their 
participants certification cards in a timely fashion.
    However, EPA is not requiring voluntary programs to notify 
participants whether or not the program has applied for grandfathering. 
EPA believes that it is the responsibility of technicians and/or their 
employers to obtain this information, and this information is (and has 
been) readily available from both EPA and voluntary technician 
certification programs. The Stratospheric Ozone Hotline has been 
distributing a list of programs that have applied for grandfathering 
since March, 1994. The list includes the following programs:

Amtrak Technical Training Center
Air Conditioning Contractors of America
CFC Reclamation and Recycling
Climate Control Institute, Inc.
Delaware County Community College
Environmental Training Group
Hartsog Trade School
Johnson Controls, Inc.
National Apartment Association
National Association of Power Engineers
People's Natural Gas
Refrigeration Environmental Protection Association
Refrigeration School, Inc.
Refrigeration Service Engineers Society
Rock Valley College
State of Alaska
State of Wisconsin, Department of Industry, Labor and Human Relations
Sears Product Services
Sequoia Institute
Tennessee Valley Technical Program
Texas Engineering Extension Service
United Association of Journeymen and Apprentices of the Plumbers and 
Pipe Fitting Industry of the United States and Canada
VGI Training Division, Video General Inc.
York International

    Since they first appeared on this list, six of the programs, 
including Delaware County Community College, National Apartment 
Association, People's Natural Gas, Rock Valley College, Sequoia 
Institute, and Tennessee Valley Technical Program, have withdrawn their 
applications for grandfathering. However, because these programs 
appeared on the list, and because some of these programs withdrew 
relatively recently, EPA will grant past participants in these programs 
the six-month extension. These programs must inform their past 
participants that they have withdrawn their request for grandfathering 
by December 9, 1994, if they have not done so already, so that past 
participants can obtain certification through a program approved after 
May 14, 1993.
    Additional programs may apply for grandfathering until December 9, 
1994. EPA will provide wholesalers and other interested parties with a 
revised list at that time, if necessary.
    One commenter believed that the amendment should allow technicians 
to continue to service equipment for six months from the promulgation 
date, as long as the equipment owner or operator could demonstrate that 
its technicians attended a voluntary certification program. This 
commenter believed that the extension should apply even if the 
voluntary program does not apply for grandfathering. EPA believes that 
only technicians who participated in voluntary programs that apply for 
grandfathering should be granted the six-month extension. Without an 
application for grandfathering, EPA has no reason to assume that the 
training might have been adequate to significantly meet the goals of 
the technician certification program. The extension is premised on the 
assumption that in many cases the voluntary programs have ensured 
technician training adequate to meet the certification program goals, 
as would be shown by substantial compliance with most of the standards 
in Sec. 82.161 and appendix D. In such cases, EPA expects to approve 
the grandfathering applications, and thus the extension will have 
avoided the need to recertify technicians who eventually would be 
grandfathered. Where the program has not applied for grandfathering, 
however, EPA has no basis for believing either that there was a 
reasonable possibility that the program significantly met the goals of 
certification, or that the technician would not have to recertify at 
the expiration of the extension period. EPA believes that bona fide 
voluntary certification programs will make the effort to apply for 
grandfathering, and that, in fact, most of those programs have applied 
already.
    In addition to the changes outlined above, in this amendment EPA is 
clarifying how it will determine whether programs and individual 
technicians will be grandfathered for a given Type. Whether a voluntary 
certification program will be grandfathered for a Type will depend upon 
the coverage by the program of the material in that Type. Whether an 
individual technician will be grandfathered for a given Type will 
depend upon (1) whether the technician successfully completed a 
voluntary program that has been grandfathered for that Type, (2) 
whether the technician successfully completed the portions of the 
voluntary certification program that correspond to that Type, and (3) 
whether the technician reads any supplementary information required by 
the Administrator pursuant to Sec. 82.161(g)(1) and returns a signed 
statement to that effect to the program. For clarity, EPA is also 
adding a definition of ``voluntary certification program.'' EPA had 
also proposed adding a definition of ``to be grandfathered'' but the 
Agency has determined that this definition is unnecessary. The 
regulations will simply refer to the ``approval'' of a voluntary 
program or the ``certification'' of a technician under a voluntary 
program.
    To maintain consistency, EPA is also modifying appendix D, section 
j. The revised section reads:
    EPA will grandfather technicians who successfully completed 
voluntary programs whose operators seek and receive EPA approval to 
grandfather these technicians, in accordance with Sec. 82.161(g). As 
part of this process, these certifying programs may be required to send 
EPA-approved supplementary information to ensure the level of the 
technicians' knowledge. Technicians will be required to read this 
supplementary information as a condition of certification. The 
certifying programs will also issue new identification cards meeting 
the requirements specified above.

EPA is deleting the second paragraph of appendix (D)(j). The deleted 
material reads:
    Persons who are currently technicians must be certified by November 
14, 1994. Technicians that participated in certification programs which 
do not become EPA-approved certifying programs must either receive EPA-
approved supplemental information from the original testing 
organization or be certified by taking a test given by an EPA-approved 
certification organization by November 14, 1994.

This provision has been rendered redundant by the more specific 
requirements in Sec. 82.161 (a) and (g). Also, technicians who 
participated in programs that are not approved for grandfathering do 
not have the option of becoming certified through receipt of EPA-
approved supplemental information.

B. Clarification of the Scope of the Technician Certification 
Requirement

    EPA is making several changes to clarify the scope of the 
technician certification requirement. Four provisions related to the 
scope of this requirement were somewhat inconsistent: the definitions 
of ``technician,'' and ``opening,'' the provision at Sec. 82.154(l) 
that prohibits anyone but certified technicians from opening or 
disposing of appliances, and the technician certification requirements 
at Sec. 82.161(a). In the August 15, 1994 notice, EPA proposed changes 
intended to eliminate the inconsistencies. First, EPA proposed to 
modify the definition of ``opening'' in order to distinguish it more 
clearly from the definition of ``technician.'' In the proposed change, 
``opening'' would have been defined as any service, maintenance, or 
repair on an appliance that would (instead of ``could'') be reasonably 
expected to release refrigerant from the appliance to the atmosphere 
unless the refrigerant were previously recovered from the appliance. 
Second, EPA proposed to modify the disposal provision of the definition 
of ``technician'' to include only those parts of the disposal process 
(e.g., evacuation of the equipment) that have the potential to release 
refrigerant. Third, the proposal linked the definition of technician to 
the certification requirement at Sec. 82.161 by replacing the term 
``person'' in that requirement with the term ``technician.'' Fourth, 
EPA proposed to eliminate the prohibition requiring technician 
certification for ``opening'' appliances.
    Commenters supported EPA's efforts to clarify the scope of the 
technician certification requirement. In particular, commenters 
supported EPA's efforts to exclude persons from the requirement who 
performed activities that have very little chance of releasing 
refrigerant, such as painting appliances or repairing empty appliances. 
However, some commenters disagreed with the proposed scope, and others 
believed that the proposed clarification either failed to remove all of 
the ambiguities or introduced new ones.
    The proposed clarifications are necessary to accomplish the 
intended purposes of the provisions being revised. One important goal 
of the refrigerant recycling provisions is to clearly identify those 
conditions that will require evacuation of an appliance. Another 
critical element of the provisions is to state the kinds of activities 
that may be performed only by a certified technician. In addition, EPA 
intends the regulations to clearly indicate the types of situations 
that do not require evacuation and those activities that need not be 
performed by a certified technician.
    In their current form, the provisions do not clearly distinguish 
maintenance, service, repair and disposal that should require 
technician certification from maintenance, service, repair and disposal 
that should require evacuation of the appliance or component to be 
serviced. EPA believes that technician certification requirements 
should be triggered by activities that carry a reasonable risk or 
probability of refrigerant release. Where there is a reasonable risk of 
release, certification ensures among other things that the technician 
knows how to minimize that risk and understands the environmental 
importance of avoiding a release. However, EPA believes that evacuation 
requirements should be triggered by activities that would release 
refrigerant unless the refrigerant were recovered previously. 
Evacuation avoids such an otherwise inevitable release by emptying the 
appliance of refrigerant prior to the contemplated activity. (While 
some refrigerant will remain in an appliance even after the appliance 
has been evacuated pursuant to Sec. 82.156, the Agency does not intend 
to require evacuation to levels below those specified in Sec. 82.156.)
    In the rule published May 14, 1993, EPA had linked both the 
technician certification and evacuation requirements to the definition 
of ``opening.'' Thus, ``technician'' was defined as ``any person who 
performs maintenance, service, or repair that could reasonably be 
expected to release'' refrigerant, and ``opening'' was defined as ``any 
service, maintenance, or repair * * * that could reasonably be expected 
to release refrigerant.'' Evacuation was required prior to opening, and 
only technicians were allowed to open appliances. EPA had linked these 
requirements believing that the same group of people who performed 
service that required evacuation would be those who engaged in 
activities that carry significant risk of refrigerant release.
    In the proposed amendment, EPA recognized that there are some types 
of service, such as charging appliances, that should not trigger 
evacuation requirements but that carry a significant risk of 
refrigerant release. On the other hand, there are other types of 
service, such as replacement of compressors, that should trigger 
evacuation requirements but that, once evacuation is complete, carry no 
risk of refrigerant release. Moreover, there are some people who engage 
only in one or the other of these types of maintenance, service, 
repair, and disposal.
    Accordingly, EPA proposed to detach the certification requirement 
from ``opening'' appliances by deleting prohibition Sec. 82.154(l), 
which had required certification for persons who open appliances. In 
addition, EPA proposed to sharpen the distinction between the 
definitions of ``opening'' and ``technician.'' Whereas both definitions 
had referred to maintenance, service, or repair, ``that could'' 
[emphasis added] reasonably be ``expected to release refrigerant to the 
atmosphere,'' the proposed definition of ``opening'' was changed to 
``service, maintenance, or repair * * * that would [emphasis added] be 
reasonably expected to release refrigerant to the atmosphere.'' The 
evacuation requirements remained triggered by ``opening'' of 
appliances. Finally, EPA tied the certification requirements at 
Sec. 82.161 to the definition of technician, clarifying that 
maintenance, service, repair, and disposal that has no reasonable 
chance of releasing refrigerant would not require certification. In 
this fashion, EPA attempted to convey that while technician 
certification requirements would be triggered by activities carrying a 
reasonable risk or probability of refrigerant release, evacuation 
requirements would be triggered by activities that certainly would 
release significant quantities of refrigerant unless the refrigerant 
were recovered previously.
    Commenters have stated, however, that changing the ``could'' in the 
definition of ``opening'' to ``would'' does not sufficiently define the 
types of maintenance, service, repair, and disposal that require 
evacuation of the appliance or component to be serviced. In addition, 
commenters asserted that, due to the ambiguity of the term ``could,'' 
the proposed definition of technician fails to sufficiently define the 
types of maintenance, service, repair, and disposal that should require 
technician certification. Commenters noted that there are a variety of 
types of activities that might still be included in the certification 
requirement although EPA did not intend certification to cover these 
activities. Procedures such as painting appliances, tightening nuts and 
bolts on fully charged appliances, and disposing evacuated appliances 
``could'' release refrigerant. As commenters pointed out, a dropped 
paint brush or wrench has a minute chance of rupturing a refrigerant 
line, while tightening nuts and bolts could release refrigerant in the 
unlikely event of bolt shearing or failure. In addition, commenters 
noted that under the current definition, certification might be 
required for maintenance, service, repair, and disposal of evacuated 
appliances because small amounts of refrigerant would be released even 
from evacuated appliances.
    Commenters suggested a variety of alternative methods for 
clarifying the scope of the evacuation and technician certification 
requirements. Many commenters suggested that EPA explicitly list in the 
definitions of ``opening'' and ``technician'' the activities that it 
intended to include in or exclude from those definitions. For instance, 
one commenter proposed explicitly excluding disposal of empty 
appliances from the definition of ``technician.'' Another commenter 
recommended adding a statement to the definition of ``opening'' that 
read, ``opening does not include any activity intended by design to 
close or tighten the system, including but not limited to tightening 
nuts and bolts to reduce refrigerant leaks.'' A third commenter 
suggested including ``adding or removing class I or class II 
refrigerant from an appliance'' in the definition of ``opening.''
    Commenters also suggested explicitly listing included or excluded 
activities in other provisions of the regulation, such as the 
evacuation requirements at Sec. 82.156(a) and the prohibition at 
Sec. 82.154(l). (Some commenters did not appear to realize that EPA was 
proposing to delete this prohibition.) One commenter suggested that EPA 
add language to Sec. 82.156(a) clarifying that ``[a]dding refrigerant 
does not, in itself, require evacuation.'' A second commenter proposed 
excluding from Sec. 82.154(l) ``persons who repair, service, or 
maintain appliances that do not contain refrigerant at the time work is 
performed.'' A third commenter suggested adding a provision that would 
prohibit anyone but certified technicians from adding or removing 
refrigerant from appliances.
    In addition, commenters recommended other changes to the definition 
of ``opening.'' These commenters focussed on the phrase, ``would be 
reasonably expected to release refrigerant,'' which they found 
subjective and unclear. One commenter suggested substituting ``would 
create a reasonable probability'' for ``would be reasonably expected.'' 
Two commenters recommended eliminating the concept of refrigerant 
release from the definition altogether and defining ``opening'' as 
``entry into the refrigeration circuit of an appliance.'' One of these 
defined ``entry'' as ``any action that is intended by design to violate 
the integrity of an enclosure that contains or would contain the 
refrigerant.''
    There are clearly a number of ways in which the scopes of the 
certification and evacuation requirements could be clarified. To keep 
the rule as straightforward as possible, EPA has chosen to place the 
conditions that trigger these requirements in the definitions of 
``technician'' and ``opening'' respectively and to use the definitions 
alone to delineate the scopes. In addition, as proposed, EPA is 
eliminating the prohibition at Sec. 82.154(l), which introduced 
confusion by linking technician certification requirements to the 
definition of ``opening.''
    As discussed above, EPA believes that evacuation requirements 
should be triggered by activities that would release refrigerant unless 
the refrigerant were recovered previously. This includes any 
maintenance, service, or repair that leaves the appliance open to the 
atmosphere for more than an instant. It does not include connecting and 
disconnecting hoses and gauges to and from the appliance to measure 
pressures within the appliance and to charge refrigerant into or 
recover refrigerant from the appliance. While these procedures may 
release refrigerant, the releases are small and unavoidable. Moreover, 
most of the procedures are fundamentally inconsistent with refrigerant 
recovery; their purpose would be defeated by it.
    In view of these considerations, EPA is establishing the following 
definition of ``opening:''
    Opening an appliance means any service, maintenance, or repair on 
an appliance that would release class I or class II refrigerant from 
the appliance to the atmosphere unless the refrigerant were recovered 
previously from the appliance. Connecting and disconnecting hoses and 
gauges to and from the appliance to measure pressures within the 
appliance and to add refrigerant to or recover refrigerant from the 
appliance shall not be considered ``opening.''
    EPA believes that the revised definition of ``opening'' responds to 
the concerns raised about the proposed definition and clarifies the 
scope of activities subject to evacuation requirements. By replacing 
``would be reasonably expected'' with ``would,'' the revision minimizes 
any subjectivity that may have been in the proposed definition and 
clarifies that the activities covered are those that would release, not 
just could release, refrigerant if the refrigerant were not recovered 
first. The revised definition also recognizes that there are some types 
of maintenance, repair, and disposal whose purpose is not consistent 
with refrigerant recovery and that therefore should not trigger 
evacuation requirements.
    EPA does not believe that ``entry into the refrigerant circuit'' is 
sufficiently clear, in itself, to serve as the definition of 
``opening.'' Even combined with the suggested definition for ``entry,'' 
the suggested definition of ``opening'' may be interpreted to include 
more than the commenters evidently intended. One could argue, for 
instance, that attaching hoses and gauges to an appliance could be 
construed as an ``action that is intended by design to violate the 
integrity of an enclosure that contains or would contain the 
refrigerant.'' When the hose is attached, the previously self-contained 
appliance has an opening in it, even if this opening leads only to a 
charging cylinder or gauge instead of to the atmosphere. In fact, EPA 
believes that the language in the proposed definition of ``entry'' is 
more useful in the definition of ``technician'' than in the definition 
of ``opening,'' and as discussed below, the Agency is using this 
language in the former.
    Some of the commenters suggested defining ``opening'' in a way that 
would prevent ``opening'' from ever occurring if the evacuation 
requirements of Sec. 82.156(a) were observed. One commenter, for 
example, suggested that EPA revise the definition to read, ``Opening an 
appliance means entry into the refrigerant circuit of an appliance 
containing a class I or class II refrigerant, unless the refrigerant 
were previously recovered from the appliance.'' Another commenter 
recommended that EPA change the definition to read, ``Any repair, 
service, or maintenance on an appliance that would create a reasonable 
probability that the physical integrity of the refrigeration circuit 
would be compromised and allow a release of refrigerant from the 
appliance to the atmosphere. Recovery of the refrigerant from the 
refrigeration circuit by a certified technician before beginning such 
repairs, service, or maintenance shall create a rebuttable presumption 
that there is no reasonable probability that a release of refrigerant 
from the appliance would be allowed as a result thereof.''
    EPA developed the term ``opening'' to describe the activities 
before which refrigerant should be recovered. Neither the existing nor 
the proposed definition of ``opening'' requires actual refrigerant 
release; instead, the definitions refer to activities that would 
(``could'' in the existing definition) release refrigerant if the 
refrigerant were not previously recovered. The activities can take 
place either while the appliance is fully charged or after it is 
evacuated; they are considered ``opening'' either way. In this way, EPA 
established a simple trigger that can be invoked in the evacuation 
requirements at Sec. 82.156(a) as follows: ``all persons opening 
appliances * * * must evacuate * * *.'' If ``opening'' never occurs, 
then the evacuation requirements are never triggered. Alternative ways 
of triggering evacuation requirements, such as stating that recovering 
refrigerant establishes a rebuttable presumption that opening does not 
occur, add unnecessary complication and confusion to the regulatory 
structure.
    As stated above, EPA believes that technician certification 
requirements should be triggered by activities that carry a reasonable 
risk or probability of refrigerant release. The Agency believes that 
activities that carry a reasonable risk of refrigerant release are 
those that are intended to move across the boundary of the refrigerant 
circuit, or ``violate the integrity of the refrigerant circuit,'' as 
one commenter put it, while refrigerant remains in the appliance. These 
conclusions flow directly from the physical structure of refrigeration 
systems, including enclosed refrigerant circuits. As long as the 
refrigerant circuit is not violated, there is no risk of release 
expected. However, the risk of release increases dramatically 
immediately upon violation of the refrigerant circuit.
    Violation of the refrigerant circuit includes attaching hoses and 
gauges to add or remove refrigerant and to measure pressures within the 
appliance. It also includes field assembly of pre-charged split 
systems, which involves establishing a new connection between 
previously separate refrigerant enclosures. It does not include 
activities such as painting the appliance, re-wiring an external 
electrical circuit, replacing insulation on a length of pipe, or 
tightening nuts and bolts on the appliance (unless the nut or bolt is 
obviously weakened and may be reasonably expected to shear and result 
in refrigerant release). EPA agrees with commenters that the chances of 
release during these activities are remote. EPA intended the phrase 
``could be reasonably expected to release'' to prevent these remote 
possibilities from triggering the certification requirements, 
particularly since certification would not reduce the likelihood of 
such accidents occurring.
    Activities that carry a reasonable risk of refrigerant release also 
exclude maintenance, service, repair, or disposal of appliances that 
have already been evacuated pursuant to Sec. 82.156, unless the service 
consists of recharging the appliance. As stated in the proposal, EPA 
does not believe that individuals who service, maintain, repair, or 
dispose of only empty appliances need to be certified, since releases 
have already been minimized to the extent possible through evacuation. 
While maintenance, service, or repair on the empty appliance could 
conceivably have an impact on future releases, particularly if 
performed incorrectly, technician certification does not, and cannot, 
address every aspect of repair that could lead to such releases. Thus, 
requiring persons who repair empty appliances to be certified would not 
significantly reduce the likelihood of such releases. However, 
requiring certification for the individual who recharges the appliances 
probably will significantly reduce the likelihood of such releases, 
because EPA's bank of test questions emphasizes the need to test 
appliances for leaks before recharging them. By performing such 
testing, the individual who recharges the appliance will be able to 
detect and rectify many of the problems that would lead to subsequent 
emissions from the appliance.
    Just as EPA considers certification important for persons 
recharging appliances, the Agency considers certification important for 
persons who determine whether or not appliances have been evacuated 
adequately to be opened. However, the revised definition of technician, 
without changes elsewhere in the rule, might permit uncertified persons 
to make this determination in one instance. Specifically, the revised 
definition excludes individuals who move refrigerant within an 
appliance (e.g., into a receiver) and who thereby evacuate a component 
to be serviced. The revised definition also excludes individuals who 
open evacuated appliances or components. While EPA does not believe 
that either of these activities requires certification in itself, EPA 
recognizes that when they are performed in sequence by uncertified 
technicians, there is a risk that the appliance will be opened before 
it has been properly evacuated pursuant to Sec. 82.154(a). Thus, EPA is 
inserting a sentence into Sec. 82.154(a) that will require verification 
of evacuation by certified technicians. Sec. 82.156(a) is amended to 
read:
    (a) Effective July 13, 1993, all persons opening appliances except 
for MVACs for maintenance, service, or repair must evacuate the 
refrigerant in either the entire unit or the part to be serviced (if 
the latter can be isolated) to a system receiver or a recovery or 
recycling machine certified pursuant to Sec. 82.158. All persons 
disposing of appliances, except for small appliances, MVACs, and MVAC-
like appliances must evacuate the refrigerant in the entire unit to a 
recovery or recycling machine certified pursuant to Sec. 82.158. 
Effective December 9, 1994, certified technicians must verify that the 
applicable level of evacuation has been reached in the appliance or the 
part before it is opened.
    To make the definition of technician as clear as possible, EPA is 
explicitly listing activities that do or do not have a reasonable 
probability of releasing refrigerant in the definition of technician. 
The revised definition reads as follows:
    Technician means any person who performs maintenance, service, or 
repair that could be reasonably expected to release class I or class II 
refrigerants from appliances, except for MVACs, into the atmosphere. 
Technician also means any person who performs disposal of appliances, 
except for small appliances, MVACs, and MVAC-like appliances, that 
could be reasonably expected to release class I or class II 
refrigerants from the appliances into the atmosphere. Performing 
maintenance, service, repair, or disposal could be reasonably expected 
to release refrigerants only if the activity is reasonably expected to 
violate the integrity of the refrigerant circuit. Activities reasonably 
expected to violate the integrity of the refrigerant circuit include 
activities such as attaching and detaching hoses and gauges to and from 
the appliance to add or remove refrigerant or measure pressure and 
adding refrigerant to and removing refrigerant from the appliance. 
Activities such as painting the appliance, re-wiring an external 
electrical circuit, replacing insulation on a length of pipe, or 
tightening nuts and bolts on the appliance are not reasonably expected 
to violate the integrity of the refrigerant circuit. Performing 
maintenance, service, repair, or disposal of appliances that have been 
evacuated pursuant to Sec. 82.156 could not be reasonably expected to 
release refrigerants from the appliance unless the maintenance, 
service, or repair consists of adding refrigerant to the appliance. 
Technician includes but is not limited to installers, contractor 
employees, in-house service personnel, and in some cases, owners.
    EPA is also adding the following definition of ``refrigerant 
circuit:''
    Refrigerant circuit means the parts of an appliance that are 
normally connected to each other (or are separated only by internal 
valves) and are designed to contain refrigerant.
    There was some disagreement among the commenters regarding the 
kinds of maintenance, service, repair, and disposal that should require 
technician certification. Two commenters supported requiring 
certification of individuals who add refrigerant to appliances; 
however, one commenter opposed this requirement. This commenter argued 
that requiring certification for persons who add refrigerant to 
industrial process refrigeration was ``extremely burdensome,'' since 
even transferring refrigerant from one portion of an industrial process 
refrigeration appliance to another (such as an internal receiver) could 
be construed as ``adding refrigerant.'' In addition, the commenter 
stated that ``the regulated community was lead (sic) to believe that 
the simple addition of refrigerant to a system * * * did not have to be 
certified.'' The commenter also stated that EPA staff told him in March 
of 1994 that persons who charge equipment do not need to be certified. 
Finally, the commenter stated that if EPA intended to require 
certification of persons who add refrigerant to industrial process 
refrigeration systems, EPA should establish a new certification 
category for such persons and should permit such persons an additional 
six months to become certified, since EPA was reversing its earlier 
position regarding the need for such persons to be certified.
    EPA does not believe that requiring certification for persons who 
add refrigerant to industrial process refrigeration systems is unduly 
burdensome. First, transferring refrigerant from one part of a 
refrigeration circuit to another (including receivers that are 
separated from the operating circuit only by internal valves) will not 
require certification under the new definition of technician. The 
definition excludes activities that do not ``violate the integrity of 
the refrigerant circuit.'' Thus, technicians who only transfer 
refrigerant within industrial process units will not have to be 
certified. Second, at least three other users of industrial process 
refrigeration commented on the rule, and none of them expressed concern 
that certification of persons adding refrigerant to industrial process 
refrigeration systems would be ``burdensome.'' In fact, one of these 
commenters recommended that EPA add a provision to the regulation to 
specifically prohibit anyone but certified technicians from adding or 
removing refrigerant from appliances. Third, EPA believes that 
certification of persons adding refrigerant to industrial process 
systems (as opposed to transferring refrigerant within such systems) is 
justified because any disturbance of a refrigeration circuit has the 
potential to release significant quantities of refrigerant, for 
instance if a charging hose is not properly attached to a servicing 
aperture or if a valve is not resealed after charging.
    To support the position that persons charging appliances should not 
be certified, the commenter also cited language from the preamble to 
the May 14, 1993 rule. This stated that persons who charge appliances 
during manufacture and transfer refrigerant from container to container 
did not have to be certified. The commenter implied that these 
activities were equivalent to charging appliances during servicing. 
However, in the same discussion cited by the commenter, EPA repeatedly 
distinguished between these activities and servicing of appliances. EPA 
believes that transferring refrigerant between containers and charging 
during manufacture are in general less complex, more routinized, and in 
the case of charging during manufacture, more automated than charging 
appliances in the field. Thus, while EPA did not include appliance 
manufacturing personnel in its definition of ``technician,'' it did 
include appliance ``installers,'' whose only contact with refrigerant 
may be during the charging process.
    EPA recognizes that there was some confusion within the regulated 
community regarding the scope of the certification requirement. In 
fact, EPA undertook this rulemaking in part to eliminate such 
confusion. However, EPA does not believe that the confusion justifies 
granting persons charging appliances their own category of 
certification or an additional six months to meet certification 
requirements. As noted above, only one commenter objected to the 
clarification that persons adding refrigerant must be certified; other 
commenters from the same sector supported this requirement.
    One commenter supported EPA's clarification that installers of 
appliances must be certified. This commenter stated that the 
applicability of the certification requirement to installers had not 
been clear in the final rule published on May 14, 1993, but that the 
proposed definition corrected this problem. The commenter requested 
that EPA ``continue to be consistent on this matter by prohibiting the 
sale of pre-charged split systems and components to `do-it-yourself' 
installers such as homeowners.''
    Precharged components are parts of appliances that are sold with 
refrigerant already contained in them. Pre-charged split systems are 
air conditioners that are typically sold as two parts, one of which 
contains the evaporator, the other, the condenser. Both parts also 
contain refrigerant and must be joined at the installation site for the 
air conditioner to function.
    As noted above, EPA agrees with the commenter that installers of 
pre-charged split systems and components should be certified, because 
joining the two halves of a split system during installation involves 
violation of the refrigerant circuit. Moreover, EPA agrees that sales 
of pre-charged split systems and other pre-charged appliance components 
should be limited to certified technicians to ensure that only 
certified technicians install them. The sales restriction provision 
(Sec. 82.154(n) in the rule published on May 14, 1994) contains an 
exception permitting the sale to uncertified persons of refrigerant 
contained in an appliance. While individual pre-charged components are 
clearly not ``appliances,'' pre-charged split systems, although not 
fully assembled, arguably could be considered ``appliances.'' Thus, the 
exception might be interpreted to permit the sale of pre-charged split 
systems to uncertified persons. EPA is revising this exception to 
remove this ambiguity and clarify that it allows the sale to 
uncertified persons of refrigerant contained in appliances only with 
fully assembled refrigerant circuits. This will prohibit the sale of 
split systems to anyone but certified technicians.
    While this clarification of the sales restriction follows logically 
from the clarifications to the scope of the technician certification 
requirement that were proposed, the regulated community should have a 
reasonable period of time to conform to the revised sales restriction. 
The old exception to the sales restriction for refrigerant contained in 
appliances will therefore remain in effect until 60 days after 
publication of this final rule.
    Another commenter argued that persons performing maintenance, 
service, or repair that are required during emergencies or that release 
only ``de minimis'' quantities of refrigerant should not need to be 
certified. This commenter stated that in an emergency, prompt action is 
often necessary in order to protect lives, property, and the 
environment. If a system were to develop a large leak during the night 
shift, for example, the entire refrigerant charge could be lost, 
necessitating shutdown of the process, before a certified technician 
was able to respond to a special call. All that might be required to 
repair the leak is tightening the nuts holding a flange together, an 
operation that would not be performed any better by a certified 
technician than by other plant personnel. The commenter stated that if 
EPA did not allow an exception to the certification requirements for 
emergencies, the commenter's staff may have no option but to ``sit idly 
as entire charges of refrigerant escape.'' The commenter recommended 
that EPA establish the following exception to the certification 
requirements:
    Nothing in this subpart is intended to prohibit servicing or 
maintenance activities performed by a person not certified as a 
technician pursuant to Sec. 82.161, if the person is qualified by 
training and/or experience to perform the task safely and effectively, 
where: * * * (2) The servicing or maintenance activity is necessary due 
to an emergency; no technician certified for that type of appliance 
pursuant to Sec. 82.161 is available; and postponing the activity is 
likely to result in significant releases of refrigerant, significant 
hazards to health, safety or the environment, or substantial property 
damage.
    EPA recognizes that emergency situations may arise where a 
certified technician is not immediately available to perform needed 
repairs. However, EPA is reluctant to establish a special exception for 
emergencies for a number of reasons. First, EPA has clarified above 
that many procedures that would reduce leakage, such as tightening the 
nuts on the flange in the commenter's example, do not require 
certification because they are not expected to violate the integrity of 
the refrigeration circuit. Second, EPA does not consider the 
certification requirement overly burdensome. If operators of air-
conditioning and refrigeration equipment believe that there is a 
significant chance that an emergency leak may occur, they can ensure 
that a certified technician is available on-site or on-call during 
every shift. This certainly provides a credible alternative to sitting 
``idly as entire charges of refrigerant escape.'' Third, the language 
suggested by the commenter for the exception includes several 
undefined, subjective terms, including ``qualified,'' ``emergency,'' 
``available,'' ``significant'' (applied both to ``releases'' and 
``hazards''), and ``substantial.'' Even if EPA considered the exception 
necessary, defining these terms would be very difficult. Consequently, 
the exception would be difficult to apply and enforce, and absent a 
clearly demonstrated need for such a provision, EPA is reluctant to 
adopt this exception.
    The commenter also requested an exception from certification 
requirements for persons performing maintenance, service, or repair 
that release only ``de minimis'' quantities of refrigerant and that do 
not require the use of recycling or recovery equipment. The commenter 
argued that plant operators would be fully qualified to perform minor 
repairs such as changing a gauge, if the maintenance does not involve 
evacuating the appliance and any resulting losses of refrigerant are de 
minimis. According to the commenter, such operators are already 
familiar with procedures such as closing valves to isolate high-
pressure materials and removing and installing gauges; these procedures 
apply to much of the equipment in industrial facilities in addition to 
refrigeration equipment. Thus, workers who are not refrigeration 
technicians would be able to perform these tasks with no greater loss 
of refrigerant than a certified technician would experience. The 
commenter claimed that if technicians were required to be certified to 
perform these procedures, the commenter's training costs would rise by 
a factor of ten, based on the need to have at least two certified 
technicians on-site (in case one went on vacation) for four or five 
shifts per day. The commenter recommended that EPA adopt an exemption 
for activities releasing ``de minimis'' quantities of refrigerant very 
similar to the exemption recommended for emergencies.
    Again, EPA is reluctant to establish an exemption based upon 
subjective terms such as ``qualified'' and ``de minimis,'' absent a 
clearly demonstrated need for such a provision. EPA is especially 
reluctant to adopt a provision that might invite uncertified 
technicians to speculate whether releases would or would not be ``de 
minimis.'' While uncertified technicians may be sufficiently 
``qualified by training or experience'' to make an appropriate 
determination of a repair that would produce only de minimis releases 
and to complete the repair with minimal release, EPA has no assurance 
that this will be the case. The purpose of technician certification is 
to provide this assurance. If technicians are indeed ``qualified by 
training or experience'' to violate the integrity of a refrigerant 
circuit, then they should be able to pass the certification test 
without extensive or expensive additional training.
    Moreover, EPA believes that the commenter's method for estimating 
increased training expenditures exaggerates these expenditures. For 
instance, rather than certifying nine additional persons per plant, the 
commenter could defer certain types of maintenance for less than 24 
hours until a certified technician was on shift, or could arrange to 
have a certified technician on-call during night shifts or during 
vacations of a shift's usual certified technician.

C. Limited Exemption From Certification Requirements for Apprentices

    As was proposed, EPA is amending the rule to clarify that 
apprentices who meet certain requirements are exempt from the 
certification requirement for two years. A person would be considered 
an apprentice if he or she (1) were currently registered as an 
apprentice in service, maintenance, repair, or disposal of appliances 
with the U.S. Department of Labor's Bureau of Apprenticeship and 
Training (or a State Apprenticeship Council recognized by the Bureau), 
and (2) had been registered as an apprentice for less than two years. 
An apprentice would not need to be certified as long as he or she were 
closely and continuously supervised by a certified technician while 
performing any maintenance, service, repair, or disposal that could 
reasonably be expected to release refrigerant from appliances into the 
atmosphere. However, uncertified apprentices would not be able to 
purchase refrigerant after November 14, 1994. This provision clearly 
would not permit uncertified technicians who were not in a training 
program to perform, under a certified supervisor, service, maintenance, 
repair, or disposal that could reasonably be expected to release 
refrigerant from appliances into the atmosphere.
    EPA believes the apprenticeship exemption conforms with the goals 
of requiring certification. In establishing this exemption, EPA 
recognizes that field training programs in air conditioning and 
refrigeration provide a legitimate and valuable alternative or addition 
to classroom training. This exemption will allow bona fide trainees to 
gain field experience that will help them to obtain certification. 
Apprentices with such experience should better understand and apply the 
information on which certification tests them.
    Limiting this exemption to registered apprentices under direct 
supervision and with no more than two years experience ensures that the 
exemption does not undercut the environmental protection goals of 
certification. Limiting the exemption to apprentice programs helps to 
ensure that supervision by certified technicians is available. In 
addition, the provision specifically requires close and continual 
supervision for the exemption to apply. Supervision should ensure that 
the apprentice follows environmentally safe practices. Moreover, the 
two-year time limit provides adequate time for the apprentice to gain 
useful field experience and seek certification, but narrowly bounds the 
period of any remaining environmental risk.
    Most commenters supported an exemption from certification 
requirements for apprentices. However, many commenters believed that 
the exemption should be expanded to include persons who were not 
registered as apprentices with the Bureau of Apprenticeship and 
Training. Some commenters also believed that the exemption should be 
lengthened beyond two years. One commenter opposed the exemption.
    Some commenters arguing for expansion of the exemption believed 
that it should also apply to students in classrooms. EPA wishes to 
clarify that the current rule already exempts students in vocational 
schools, community colleges, and university engineering programs from 
technician certification requirements, because work that is performed 
on appliances in classrooms or teaching laboratories strictly for 
educational purposes is not considered maintenance, service, or repair. 
EPA issued an applicability determination containing this conclusion on 
March 18, 1994 (Number 20). To the extent that prison training programs 
involve work that is strictly educational, students in those programs 
are also exempt from certification requirements.
    Other commenters arguing for expansion of the exemption believed 
that it should also apply to trainees who work in the field but who are 
not registered with the Bureau of Apprenticeship and Training. One of 
these commenters noted that DOL-registered apprenticeship programs tend 
to be concentrated in the northeast and in heavily unionized areas, and 
that trainees in other areas may not use such programs as a means to 
learn the trade. This commenter believed that trainees should be 
permitted to submit an application to EPA to defer certification for up 
to two years, during which period a ``learner's permit'' could be 
issued to the trainee. Another commenter stated that many private 
sector contractors are discouraged from committing to formal, four-year 
apprenticeship programs by the Bureau's recordkeeping requirements and 
approval process. According to this commenter, prospective trainees 
often share contractors' reluctance to commit to a four-year program, 
preferring to be paid by competency level instead of by years in the 
program. The commenter believed that the requirement that trainees be 
supervised by certified technicians would prevent journeymen from 
masquerading as trainees, since it is expensive to send two workers to 
a site when one is sufficient. Both commenters believed that trainees 
should be supervised by certified technicians.
    EPA recognizes that some trainees in air-conditioning and 
refrigeration maintenance, service, and repair are not currently 
registered with the Bureau of Apprenticeship and Training (or a 
recognized State Apprenticeship Council). However, EPA believes that 
third-party registration of apprentices and apprenticeship programs is 
critical to ensuring that only bona fide apprentices take advantage of 
the apprenticeship exemption. The requirement that apprentices be 
supervised by certified technicians may discourage some technicians 
from misrepresenting themselves as apprentices, but does not replace 
the requirement that the apprentice be registered with the Bureau of 
Apprenticeship and Training. This is because the supervision 
requirement is more difficult to enforce than a requirement that 
uncertified apprentices be registered with the Bureau. The suggested 
approach that EPA register apprentices and issue two-year learner's 
permits would demand more resources to implement and enforce than are 
justified by the exemption.
    The apprenticeship exemption is practicable from an enforcement and 
administration perspective only if it can be linked to an existing 
registration system, and the only existing, nation-wide registration 
system that EPA is aware of (or that commenters mentioned) is that 
operated by the Bureau of Apprenticeship and Training. In discussions 
with EPA, the Department of Labor has emphasized that the Bureau 
registers any program that meets its requirements, including both union 
and non-union programs throughout the U.S. EPA considers compliance 
with these requirements a reasonable condition for granting field 
training programs the privilege of exempting their participants from 
the technician certification requirements.
    Two commenters believed that EPA should extend the apprenticeship 
exemption from two years to three to five years to better match the 
length of typical apprenticeships. These commenters stated that 
extending the exemption would permit apprentices to thoroughly learn 
proper and legal refrigerant handling techniques. However, other 
commenters believed that the two-year term was appropriate or 
acceptable. One trainer noted that the end of the second year of 
training was the logical point at which a trainee would be prepared for 
certification. EPA agrees that a two-year exemption provides sufficient 
opportunity for trainees to become ready to pass the certification 
test. While beneficial, further training is not essential to 
certification. Also, as noted above, strictly limiting the time period 
for the apprenticeship exemption constrains the period of any possible 
heightened environmental risk.
    One commenter believed that there should be no exemption for 
apprentices. This commenter argued that delaying the certification 
requirement could lead to ``a nonchalant attitude to safe refrigerant 
handling'' among apprentices. In addition, the commenter claimed that 
close supervision of apprentices by certified technicians is not always 
feasible, because a single journeyman may supervise several apprentices 
at once, at different locations. Another commenter argued that 
apprentices should be required to be certified in the Core Type, which 
focuses on environmental and safety issues, because passage of this 
section of the test does not require a working knowledge of the trade.
    EPA does not believe that establishing the two-year apprenticeship 
exemption from the certification requirement would lead apprentices to 
develop a cavalier attitude toward safety. Safety and environmental 
training can and should begin as soon as an apprentice begins his or 
her training in air conditioning and refrigeration. Also, one commenter 
noted that their program provides classroom training for certification, 
but they believe on-the-job training is necessary to teach the proper 
procedures; this emphasizes the importance of allowing safety and 
environmental procedures to be taught in a hands-on setting. In 
addition, after the certification requirement goes into effect, 
technicians learning proper refrigerant handling will have the 
additional incentive of realizing that they must take and pass a test 
on this topic after two years. For the above reasons, EPA does not 
believe that certification in Core Type would provide sufficient 
environmental benefits to justify the burden of requiring apprentices 
to undergo the certification process in two separate steps.
    Regarding the ability of journeymen to closely supervise 
apprentices, EPA emphasizes that if close supervision is not possible, 
then unsupervised apprentices must not be permitted to perform 
maintenance, service, repair, or disposal that could release 
refrigerant from the appliance to the environment. However, 
unsupervised apprentices may perform maintenance, service, repair, or 
disposal that could not be reasonably expected to release refrigerant, 
such as repair of evacuated appliances or electrical work.\1\
---------------------------------------------------------------------------

    \1\EPA is aware that there are other federal and state 
requirements for proper supervision, as one commenter noted, and the 
Agency does not intend to provide any kind of exemption from such 
requirements.
---------------------------------------------------------------------------

D. Miscellaneous Corrections and Response to Comments

1. Correction to Definition of ``Recover''
    EPA is correcting a typographical error in the definition of 
``recover.'' As discussed in the preamble to the May 14, 1993, final 
rule (58 FR 28671), EPA had intended to adopt the definition of 
``recover'' developed by the American Society of Heating, 
Refrigeration, and Air-Conditioning Engineers (ASHRAE). The ASHRAE 
definition reads, ``to remove refrigerant in any condition from a 
system and store it in an external container without necessarily 
testing or processing it in any way'' (ASHRAE Guideline 3-1990). 
However, EPA inadvertently omitted the phrase ``and store it in an 
external container'' from the definition adopted in the final rule. EPA 
is therefore revising and clarifying the definition by restoring this 
phrase to it.
2. Correction to Prohibition Sec. 82.154(g)
    EPA is also correcting a typographical error in prohibition 
Sec. 82.154(g). In the direct final regulation published on August 19, 
1994, this prohibition incorrectly cited the definition of 
``reclaimed'' at Sec. 82.152(q). The prohibition indicated that the 
definition was found at Sec. 82.152(g). With the addition of the 
definition of ``apprentice,'' the definition of ``reclaim'' will now 
found be at Sec. 82.152(r), and EPA is revising prohibition 
Sec. 82.154(g) to reflect this change.
3. Correction to Required Practice Sec. 82.156(e)
    EPA is also restoring a phrase that was inadvertently omitted from 
Sec. 82.156(e). This provision states, ``Refrigerant may be returned to 
the appliance from which it is recovered or to another appliance owned 
by the same person without being recycled or reclaimed, unless the 
appliance is an MVAC-like appliance.'' EPA intended to except MVACs as 
well as MVAC-like appliances from this provision, which might otherwise 
be interpreted to supersede the recycling requirements of the section 
609 refrigerant recycling rule published on July 14, 1992. EPA has 
always intended the section 609 regulation to govern the servicing of 
MVACs. Thus, EPA is revising the provision to read, ``Refrigerant may 
be returned to the appliance from which it is recovered or to another 
appliance owned by the same person without being recycled or reclaimed, 
unless the appliance is an MVAC or MVAC-like appliance.''
4. Correction to Reclaimer Certification Provisions
    In the direct final rule published on August 19, 1994, EPA revised 
the reclaimer certification provisions at Sec. 82.164 to reflect EPA's 
adoption of the updated ARI 700-1993 industry standard for reclaimed 
refrigerant. As discussed in the preamble to the direct final rule (59 
FR 42951), the revised standard differs from its predecessor, ARI 700-
1988, in three main respects: (1) ARI 700-1993 includes eleven 
additional refrigerants, (2) ARI 700-1993 doubles the permissible water 
levels in liquid phase R-11 and R-113, and (3) where ARI 700-1988 
allowed 0.5 as the maximum percentage by weight of ``other 
refrigerants,'' ARI 700-1993 allows 0.50 as the maximum percentage by 
weight of ``all other organic impurities, including other 
refrigerants.''
    Also as noted in the direct final rule, EPA made the change to the 
reclaimer certification provisions to maintain consistency between 
these provisions and the definition of reclaim. The revised provisions 
were intended to apply to reclaimers who became certified for the first 
time after October 18, 1994, the effective date of the direct final 
rule. EPA did not intend to require refrigerant reclaimers who had 
already been certified to become certified again. However, certified 
reclaimers have pointed out that the revised provisions could be 
interpreted to require recertification.
    EPA considers such recertification unnecessary. As stated in the 
preamble to the final rule, the goal of reclaimer certification is to 
ensure that reclaimers are ``fully aware of the regulations regarding 
reclaimed refrigerant'' (58 FR 28700). Certified reclaimers have 
already demonstrated, through their original certifications, that they 
are aware of most of the regulations regarding reclaimed refrigerant, 
including the basic requirements to purify and analyze the refrigerant, 
to limit emissions to 1.5 percent of the refrigerant reclaimed, and to 
dispose of wastes from the reclamation process in accordance with all 
applicable laws and regulations. The only requirements of which they 
may not be aware are the changes to the ARI 700 standard enumerated 
above. Any failure to accommodate these changes, while undesirable, is 
not likely to have a significant adverse environmental or economic 
impact.\2\ In fact, one of the changes represents a relaxation of the 
ARI 700-1988 standard.
---------------------------------------------------------------------------

    \2\The one possible exception to this generalization is the 
broadening of the scope of the standard to include 11 additional 
refrigerants. If a new refrigerant was not reclaimed because the 
reclaimer did not know the purity standards for that refrigerant, 
the dirty refrigerant could harm air-conditioning and refrigeration 
equipment in which it was subsequently used. However, the 11 
refrigerants added to the standard currently make up only a small 
fraction of the refrigerant that is reclaimed. Moreover, EPA 
believes that most certified reclaimers, when faced with a 
refrigerant whose purity standards they do not know, are likely to 
make an effort to discover these purity standards in order to retain 
their customers.
---------------------------------------------------------------------------

    Moreover, based on information submitted by certified reclaimers 
and the Air-Conditioning and Refrigeration Institute (the industry 
standard-setting group that developed ARI 700-1988 and -1993), EPA 
believes that most certified reclaimers either are aware or can be made 
aware of the new standard without recertifying. For instance, many 
reclaimers either participated in the development of ARI 700-1993 
standard themselves or work with analytical laboratories that 
participated in the development of the standard. In addition, EPA plans 
to distribute copies of the direct final regulation, which includes the 
updated standard, to all certified reclaimers.
    Finally, EPA will be undertaking a rulemaking in the near future to 
address refrigerant purity and transfer issues generally. EPA will be 
considering changes to the reclaimer certification provisions at that 
time. This will give the Agency an opportunity to revisit the 
recertification issue, if necessary.
    Thus, in order to clarify that certified refrigerant reclaimers 
need not recertify, EPA is adding a sentence to the reclaimer 
certification provisions that states ``Persons who certified under 
Sec. 82.164 before October 18, 1994, need not recertify under this 
section.''
5. Comments Outside the Scope of This Rulemaking
    EPA received some comments that related to issues outside the scope 
of this rulemaking. One commenter advocated requiring certification of 
persons who dispose of small appliances. This commenter argued that 
disposers might not only release refrigerants, violating Clean Air Act 
requirements, but could be ``liable as cogenerators'' under other 
environmental statutes. EPA did not intend to request comment on 
whether disposers should be certified in the proposed rule published 
August 15, 1994; the part of the proposed definition of technician that 
excluded disposers of small appliances was identical to that in the 
final rule published May 14, 1993. The rationale for this exclusion may 
be found at 58 FR 28705.
    The same commenter recommended that all certification programs that 
conform to Sec. 82.161 be eligible for state required continuing 
education credits for licensing. Although EPA believes that this may be 
a good idea, eligibility for state continuing education credits is 
determined by the states, not EPA.
    One commenter stated that EPA should amend the rule to permit 
transfers of used, unreclaimed refrigerant among subsidiaries of the 
same company. This issue is outside the scope of this rulemaking. 
However, EPA plans to undertake a rulemaking in the near future that 
will address refrigerant purity and transfer issues. EPA will take the 
comment into consideration at that time.

III. Summary of Supporting Analysis

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to 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 entitlements, 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 
this Executive Order.
    It has been determined by OMB and EPA that this amendment to the 
final rule is not a ``significant regulatory action'' under the terms 
of Executive Order 12866 and is therefore not subject to OMB review 
under the Executive Order.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that 
Federal agencies examine the impacts of their regulations on small 
entities. Under 5 U.S.C. 604(a), whenever an agency is required to 
publish a general notice of proposed rulemaking, it must prepare and 
make available for public comment an initial regulatory flexibility 
analysis (RFA). Such an analysis is not required if the head of an 
agency certifies that a rule will not have a significant economic 
impact on a substantial number of small entities, pursuant to 5 U.S.C. 
605(b).
    EPA believes that any impact that this amendment will have on the 
regulated community will serve only to provide relief from otherwise 
applicable regulations, and will therefore limit the negative economic 
impact associated with the regulations previously promulgated under 
Section 608. An examination of the impacts on small entities was 
discussed in the final rule (58 FR 28660). That final rule assessed the 
impact the rule may have on small entities. A separate regulatory 
impact analysis accompanied the final rule and is contained in Docket 
A-92-01. I certify that this amendment to the refrigerant recycling 
rule will not have any additional negative economic impacts on any 
small entities.

C. Paperwork Reduction Act

    Any information collection requirements in a rule must be submitted 
for approval to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no additional 
informational collection requirements are required by this amendment, 
EPA has determined that the Paperwork Reduction Act does not apply to 
this rulemaking and no new Information Collection Request document has 
been prepared.

IV. Effective Date and Public Participation

    This amendment is effective upon signature by the Administrator. 
This expedited effective date is necessary to effectuate the provision 
of the amendment extending the November 14, 1994 deadline for 
certification of technicians that successfully completed voluntary 
certification programs. The provisions regarding grandfathering do not 
place any significant burdens on affected parties prior to thirty days 
after publication, although programs that are disapproved for 
grandfathering will have to notify their participants within thirty 
days of EPA's disapproval of their application. The provision acts to 
allow grandfathering of voluntary certification programs previously 
barred under the regulations. The clarification of the scope of the 
technician requirements also should not place any burden on affected 
parties. The provision clarifies the scope of the activities covered by 
the certification and evacuation requirements. This relieves persons 
performing activities that might have been previously covered by the 
requirements from complying with the requirements. The apprenticeship 
exemption is similar. Given the lack of burden upon affected parties 
and the need to grant an immediate exemption from the November 14, 1994 
deadline, the Agency finds good cause for expediting the effective date 
of the rule. EPA believes that this is consistent with 5 U.S.C. 
553(d)(1) and (3).
    Three provisions of this rule are being issued without notice and 
comment. The first provision corrects the typographical error in 
Sec. 82.154(g) mistakenly citing the definition of ``reclaimed'' as 
Sec. 82.152(g) instead of Sec. 82.152(q). The error was introduced in 
the direct final rule of August 19, 1994 (59 FR 42950). The context of 
the citation makes it clear that this is an erroneous citation, thus 
raising no need for public notice of its correction. The Agency 
believes that this circumstance provides good cause to find public 
notice of this amendment unnecessary under sections 307(d) and 
553(a)(3)(B).
    The second provision adds MVACs to the exclusion of MVAC-like 
appliances from Sec. 82.156(e). That section allows refrigerant to be 
returned to the appliance from which it is recovered or another 
appliance owned by the same person without being recycled or reclaimed. 
Applying Sec. 82.156(e) to allow the return of refrigerant to MVACs 
without being recycled or reclaimed would directly conflict with the 
requirements for ``properly using'' equipment for servicing MVACs under 
section 609 of the Clean Air Act, as amended and EPA's implementing 
regulations. See Sec. 82.30(e). This conflict was the reason that MVAC-
like equipment was excluded from Sec. 82.156(e) in the May 1993 final 
rule (59 FR 28708). The rationale applies even more strongly to MVACs 
themselves, which were erroneously omitted from the exclusion. This is 
a minor correction that merely eliminates the conflict between the two 
provisions and any resulting confusion over which provision governs. 
This correction does no more than clarify the regulations to be 
consistent with the section 609 regulations and the current general 
understanding throughout the industry. These circumstances provide good 
cause for the Agency to find public notice of this amendment 
unnecessary under sections 307(d) and 553(a)(3)(B).
    The third provision clarifies the Agency's position on 
certification of reclaimers under Sec. 82.164. In the August 19, 1994 
direct final rule (59 FR 42950), EPA updated the refrigerant purity 
standards in accordance with the most recent industry standards, and 
set a new deadline of October 18, 1994 for reclaimers to be certified 
under these standards. The Agency intended this change to require 
reclaimers to certify under the new, rather than the old, standard, but 
only for those reclaimers that certified for the first time after the 
October 1994 effective date. It did not intend to require 
recertification of already certified reclaimers.
    The deadline for certification under the new standard has already 
passed, and all reclaimers that have not recertified could be 
considered technically out of compliance. This makes it important for 
the Agency to clarify the coverage of the rule expediently, and makes 
the delay of a notice and comment rulemaking procedure contrary to the 
public interest. The Agency finds that these circumstances provide good 
cause under sections 307(d) and 553(a)(3)(B) to proceed with this 
rulemaking without public notice.

V. Judicial Review

    Under Section 307(b)(1) of the Act, EPA finds that these 
regulations are of national applicability. Accordingly, judicial review 
of this action is available only by the filing of a petition for review 
in the United States Court of Appeals for the District of Columbia 
Circuit within sixty days of publication of this action in the Federal 
Register. Under Section 307(b)(2), the requirements of this rule may 
not be challenged later in judicial proceedings brought to enforce 
those requirements.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Chlorofluorocarbons, 
Hydrochlorofluorocarbons, Recovery and recycle, Reporting and 
recordkeeping requirements, Stratospheric ozone layer.

    Dated: October 28, 1994.
Carol M. Browner,
Administrator.
    Title 40, Code of Federal Regulations, part 82, is amended to read 
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. 7414, 7601, 7671-7671q.

    2. Section 82.152 is amended by redesignating paragraphs (u) 
through (y) as (w) through (aa), redesignating paragraphs (b) through 
(t) as paragraphs (c) through (u), revising newly designated paragraphs 
(o), (s), and (z), and by adding new paragraphs (b), (v), and (bb) to 
read as follows:


Sec. 82.152  Definitions.

* * * * *
    (b) Apprentice means any person who is currently registered as an 
apprentice in service, maintenance, repair, or disposal of appliances 
with the U.S. Department of Labor's Bureau of Apprenticeship and 
Training (or a State Apprenticeship Council recognized by the Bureau of 
Apprenticeship and Training). If more than two years have elapsed since 
the person first registered as an apprentice with the Bureau of 
Apprenticeship and Training (or a State Apprenticeship Council 
recognized by the Bureau of Apprenticeship and Training), the person 
shall not be considered an apprentice.
* * * * *
    (o) Opening an appliance means any service, maintenance, or repair 
on an appliance that would release class I or class II refrigerant from 
the appliance to the atmosphere unless the refrigerant were recovered 
previously from the appliance. Connecting and disconnecting hoses and 
gauges to and from the appliance to measure pressures within the 
appliance and to add refrigerant to or recover refrigerant from the 
appliance shall not be considered ``opening.''
* * * * *
    (s) Recover refrigerant means to remove refrigerant in any 
condition from an appliance and to store it in an external container 
without necessarily testing or processing it in any way.
* * * * *
    (v) Refrigerant circuit means the parts of an appliance that are 
normally connected to each other (or are separated only by internal 
valves) and are designed to contain refrigerant.
* * * * *
    (z) Technician means any person who performs maintenance, service, 
or repair that could be reasonably expected to release class I or class 
II refrigerants from appliances, except for MVACs, into the atmosphere. 
Technician also means any person who performs disposal of appliances, 
except for small appliances, MVACs, and MVAC-like appliances, that 
could be reasonably expected to release class I or class II 
refrigerants from the appliances into the atmosphere. Performing 
maintenance, service, repair, or disposal could be reasonably expected 
to release refrigerants only if the activity is reasonably expected to 
violate the integrity of the refrigerant circuit. Activities reasonably 
expected to violate the integrity of the refrigerant circuit include 
activities such as attaching and detaching hoses and gauges to and from 
the appliance to add or remove refrigerant or to measure pressure and 
adding refrigerant to and removing refrigerant from the appliance. 
Activities such as painting the appliance, re-wiring an external 
electrical circuit, replacing insulation on a length of pipe, or 
tightening nuts and bolts on the appliance are not reasonably expected 
to violate the integrity of the refrigerant circuit. Performing 
maintenance, service, repair, or disposal of appliances that have been 
evacuated pursuant to Sec. 82.156 could not be reasonably expected to 
release refrigerants from the appliance unless the maintenance, 
service, or repair consists of adding refrigerant to the appliance. 
Technician includes but is not limited to installers, contractor 
employees, in-house service personnel, and in some cases, owners.
* * * * *
    (bb) Voluntary certification program means a technician testing 
program operated by a person before that person obtained approval of a 
technician certification program pursuant to Sec. 82.161(c).


Sec. 82.154  [Amended]

    3. Section 82.154 is amended by revising paragraph (g)(1); by 
removing paragraph (l); by redesignating paragraphs (m) through (o) as 
(l) through (n) respectively; by redesignating newly designated 
paragraphs (m)(2) through (m)(6) as (m)(3) through (m)(7) respectively; 
by adding paragraphs (m)(2) and (m)(8); and by revising paragraphs 
(m)(6) and (m)(7) to read as follows:


Sec. 82.154  Prohibitions.

* * * * *
    (g) * * *
    (1) The class I or class II substance has been reclaimed as defined 
at Sec. 82.152(r);
* * * * *
    (m) * * *
    (2) The buyer has successfully completed a voluntary certification 
program requesting approval under Sec. 82.161(g) by December 9, 1994. 
This paragraph (m)(2) expires on May 15, 1995.
* * * * *
    (6) The refrigerant is contained in an appliance, and after January 
9, 1995, the refrigerant is contained in an appliance with a fully 
assembled refrigerant circuit;
    (7) The refrigerant is charged into an appliance by a certified 
technician or an apprentice during maintenance, service, or repair; or
    (8) The refrigerant is charged into an appliance by a technician 
who successfully completed a voluntary certification program requesting 
approval under Sec. 82.161(g) by December 9, 1994. This paragraph 
(m)(8) expires on May 15, 1995.
    4. Section 82.156 is amended by revising paragraph (a) introductory 
text and by revising paragraphs (a)(1)(i), (a)(2)(i) introductory text, 
and (e) to read as follows:


Sec. 82.156  Required practices.

    (a) Effective July 13, 1993, all persons disposing of appliances, 
except for small appliances, MVACs, and MVAC-like appliances must 
evacuate the refrigerant in the entire unit to a recovery or recycling 
machine certified pursuant to Sec. 82.158. All persons opening 
appliances except for MVACs for maintenance, service, or repair must 
evacuate the refrigerant in either the entire unit or the part to be 
serviced (if the latter can be isolated) to a system receiver or a 
recovery or recycling machine certified pursuant to Sec. 82.158. 
Effective January 9, 1995, certified technicians must verify that the 
applicable level of evacuation has been reached in the appliance or the 
part before it is opened.
    (1) * * *
    (i) Evacuation of the appliance to the atmosphere is not to be 
performed after completion of the maintenance, service, or repair, and 
the maintenance, service, or repair is not major as defined at 
Sec. 82.152(k); or
* * * * *
    (2)(i) If evacuation of the appliance to the atmosphere is not to 
be performed after completion of the maintenance, service, or repair, 
and if the maintenance, service, or repair is not major as defined at 
Sec. 82.152(k), the appliance must:
* * * * *
    (e) Refrigerant may be returned to the appliance from which it is 
recovered or to another appliance owned by the same person without 
being recycled or reclaimed, unless the appliance is an MVAC or MVAC-
like appliance.
* * * * *
    5. Section 82.161 is amended by revising paragraph (a) introductory 
text; by removing the word ``Persons'' and adding in its place 
``Technicians'' in paragraphs (a)(2) through (a)(5); by revising 
paragraph (a)(1), by revising paragraph (g); and by adding paragraph 
(a)(6) to read as follows:


Sec. 82.161  Technician certification.

    (a) Effective November 14, 1994, technicians, except technicians 
who successfully completed voluntary certification programs that apply 
for approval under Sec. 82.161(g) by December 9, 1994, must be 
certified by an approved technician certification program under the 
requirements of this paragraph (a). Effective May 15, 1995, all 
technicians must be certified by an approved technician certification 
program under the requirements of this paragraph (a).
    (1) Technicians who maintain, service, or repair small appliances 
as defined in Sec. 82.152(x) must be properly certified as Type I 
technicians.
* * * * *
    (6) Apprentices are exempt from this requirement provided the 
apprentice is closely and continually supervised by a certified 
technician while performing any maintenance, service, repair, or 
disposal that could reasonably be expected to release refrigerant from 
appliances into the environment. The supervising certified technician 
is responsible for ensuring that the apprentice complies with this 
subpart.
* * * * *
    (g)(1) Any person seeking approval of a technician certification 
program may also seek approval to certify technicians who successfully 
completed a voluntary certification program operated previously by that 
person. Interested persons must submit to the Administrator at the 
address in Sec. 82.160(a) verification that the voluntary certification 
program substantially complied with most of the standards of 
Sec. 82.161(c) and appendix D of subpart F of this part. If the program 
did not test or train participants on some elements of the test subject 
material, the person must submit supplementary information on the 
omitted material to the Administrator for approval and verify that the 
approved information will be provided to technicians pursuant to 
section j of appendix D of subpart F of this part. In this case, the 
person may not issue a certification card to a technician until he or 
she has received a signed statement from the technician indicating that 
the technician has read the supplementary information. Approval may be 
granted for Type I, Type II, or Type III certification, or some 
combination of these, depending upon the coverage in the voluntary 
certification program of the information in each Type. In order to have 
their voluntary programs considered for approval, persons must submit 
applications both for approval as a technician certification program 
and for approval as a voluntary program by December 9, 1994.
    (2)(i) Persons who are approved to certify technicians who 
successfully completed their voluntary programs pursuant to 
Sec. 82.161(g)(1) must:
    (A) Notify technicians who successfully completed their voluntary 
programs of the Administrator's decision within 60 days of that 
decision;
    (B) Send any supplementary materials required pursuant to 
Sec. 82.161(g)(1) to technicians who successfully completed their 
voluntary programs within 60 days of the Administrator's decision; and
    (C) Send certification cards to technicians who successfully 
completed their voluntary programs within 60 days of receipt of signed 
statements from the technicians indicating that the technicians have 
read the supplementary information.
    (ii) Persons who are disapproved to certify technicians who 
successfully completed their voluntary programs pursuant to 
Sec. 82.161(g)(1) must notify technicians who successfully completed 
their voluntary programs of the Administrator's decision within 30 days 
of that decision.
    (iii) Persons who withdraw applications for voluntary program 
approval submitted pursuant to Sec. 82.161(g)(1) must inform 
technicians who successfully completed their voluntary programs of the 
withdrawal by the later of 30 days after the withdrawal or December 9, 
1994.
    (3) Technicians who successfully completed voluntary certification 
programs may receive certification in a given Type through that program 
only if:
    (i) The voluntary certification program successfully completed by 
the technician is approved for that Type pursuant to Sec. 82.161(g)(1);
    (ii) The technician successfully completed the portions of the 
voluntary certification program that correspond to that Type; and
    (iii) The technician reads any supplementary materials required by 
the Administrator pursuant to Sec. 82.161(g)(1) and section j of 
appendix D of subpart F of this part, and returns the signed statement 
required by Sec. 82.161(g)(1).
* * * * *
    6. Section 82.164 is amended by revising the introductory text to 
read as follows:


Sec. 82.164  Reclaimer certification.

    Effective October 18, 1994, all persons reclaiming used refrigerant 
for sale to a new owner, except for persons who properly certified 
under this section prior to October 18, 1994, must certify to the 
Administrator that such person will:
* * * * *
    7. Appendix D to subpart F is amended by revising section j to read 
as follows:

Appendix D to Part 82 Subpart F--Standards for Becoming a Certifying 
Program for Technicians

* * * * *
    j. Grandfathering
    EPA will grandfather technicians who successfully completed 
voluntary programs whose operators seek and receive EPA approval to 
grandfather these technicians, in accordance with Sec. 82.161(g). As 
part of this process, these certifying programs may be required to send 
EPA-approved supplementary information to ensure the level of the 
technicians' knowledge. Technicians will be required to read this 
supplementary information as a condition of certification. The 
certifying programs will also issue new identification cards meeting 
the requirements specified above.
* * * * *
[FR Doc. 94-27532; Filed 11-9-94; 8:45 am]
BILLING CODE 6560-50-P