[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7724-7727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4038]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82

[FRL-5428-6]
RIN 2060-AF36


Protection of Stratospheric Ozone: Direct-Final Rulemaking 
Temporarily Extend the Existing Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Through this action EPA is amending the Clean Air Act section 
608 refrigerant recycling regulations to extend the effectiveness of 
the refrigerant purity requirements of Sec. 82.154 (g) and (h), which 
are currently scheduled to expire on March 18, 1996, until December 31, 
1996, or until EPA completes rulemaking to adopt revised refrigerant 
purity requirements based on industry guidelines, whichever comes 
first. EPA is extending the requirements in response to requests from 
the air-conditioning and refrigeration industry to avoid widespread 
contamination of the stock of chlorofluorocarbon (CFC) and 
hydrochlorofluorocarbon (HCFC) refrigerants that could result from the 
lapse of the purity standard. Such contamination would cause extensive 
damage to air-conditioning and refrigeration equipment, release of 
refrigerants, and refrigerant shortages with consequent price 
increases.
    EPA anticipates, before the close of the comment period for this 
direct final, publishing a proposal to adopt a more flexible approach 
to ensuring the purity of refrigerants and soliciting public comment on 
this approach. EPA requests that readers of this notice review that 
proposal, and consider providing comments.
    This temporary extension will not result in any additional burden 
on the regulated community. Moreover, the retention of the reclamation 
requirement will protect the environment, public health, and consumers 
by ensuring that contaminated refrigerants are not vented or charged 
into equipment.

EFFECTIVE DATE: The direct final rule will become effective on April 
15, 1996 unless significant adverse comments are received by April 1, 
1996. If significant adverse comments are timely received on this 
direct final rule, EPA will withdraw the direct final rule and timely 
notice to that effect will be published in the Federal Register. All 
comments will then be addressed in a subsequent final rule based on the 
proposed rule contained in the Proposed Rules section of this Federal 
Register that is identical to this direct final rule. If no significant 
adverse comments are timely received on this direct final rule then the 
direct final rule will become effective 45 days from today's Federal 
Register notice and no further action is contemplated on the parallel 
proposal.

ADDRESSES: Comments and materials supporting this rulemaking are 
contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor) 
Environmental Protection Agency, 401 M Street SW., Washington, DC 20460 
in room M-1500. Dockets may be inspected from 8:00 a.m. until 5:30 
p.m., Monday through Friday. A reasonable fee may be charged for 
copying docket materials. Those wishing to notify EPA of their intent 
to submit adverse comments on this action should contact Cindy Newberg, 
Program Implementation Branch, Stratospheric Protection Division, 
Office of Atmospheric Programs, Office of Air and Radiation (6205-J), 
401 M Street SW., Washington, DC 20460, (Docket # A-92-01 VIII.G.) 
(202) 233-9729.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation 
Branch, Stratospheric Protection Division, Office of Atmospheric 
Programs, Office of Air and Radiation (6205-J), 401 M Street, SW., 
Washington, DC 20460. The Stratospheric Ozone Information Hotline at 1-
800-296-1996 can also be contacted for further information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. Overview
II. Background
III. Today's Action
IV. Effective Date
V. Summary of Supporting Analysis

I. Overview

    Paragraphs 82.154(g) and (h) of 40 CFR part 82, subpart F set 
requirements for sale of used refrigerant, mandating that it meet 
certain purity standards. These requirements will expire on March 18, 
1996. EPA is currently in the process of promulgating new, more 
flexible, requirements based on industry guidelines, but will be unable 
to complete the rulemaking prior to the expiration of the existing 
standards. A lapse in the standards could result in widespread 
contamination of the stock of CFC and HCFC refrigerants. Such 
contamination would cause extensive damage to air-conditioning and 
refrigeration equipment, release of refrigerants, and refrigerant 
shortages with consequent price increases. Release of CFC and HCFC 
refrigerants has been found to deplete stratospheric ozone, resulting 
in increased human and environmental exposure to ultraviolet radiation. 
Increased exposure to ultraviolet radiation in turn can lead to serious 
health and environmental effects.
    EPA is acting on requests from the air-conditioning and 
refrigeration industry to extend the effectiveness of the current 
refrigerant purity requirements, only until EPA can complete rulemaking 
to adopt more flexible requirements that will still ensure refrigerant 
purity.

II. Background

    On May 14, 1993, EPA published final regulations establishing a 
recycling program for ozone-depleting refrigerants recovered during the 
servicing and disposal of air-conditioning and refrigeration equipment 
(58 FR 28660). These regulations include evacuation requirements for 
appliances being serviced or disposed of, standards and testing 
requirements for used refrigerant sold to a new owner, certification 
requirements for refrigerant reclaimers, and standards and testing 
requirements for refrigerant recycling and recovery equipment. 

[[Page 7725]]

    When EPA promulgated the final rule, the Agency noted that further 
rulemaking would be required to address issues that had been raised 
during the comment period for the proposed rule (57 FR 58644). One of 
these issues was whether a standard for used refrigerant could be 
developed that would protect air-conditioning and refrigeration 
equipment, but would allow technicians to clean refrigerant themselves, 
rather than sending the refrigerant to an off-site reclaimer.
    The final rule published on May 14, 1993, requires that refrigerant 
sold to a new owner be reclaimed to the ARI Standard 700 of purity by a 
certified reclaimer (Sec. 82.154(g) and (h) referencing standard in 
Sec. 82.164 and the definition of reclaim found in Sec. 82.152). As 
discussed in the final rule, this requirement protects the purity of 
used refrigerant to prevent damage to air-conditioning and 
refrigeration equipment from the use of contaminated refrigerant. 
Equipment damage from contaminated refrigerant would result in costs to 
equipment owners, in releases of refrigerant from damaged equipment 
through increased leakage, servicing and replacement, and in reduction 
in consumer confidence in the quality of used refrigerant. This 
reduction in consumer confidence could lead to the premature retirement 
or retrofit of CFC or HCFC equipment since consumers would no longer 
believe that a sufficient stock of trustworthy refrigerants was 
available.
    Although the reclamation requirements contained in 82.154(g) and 
(h) would clearly protect equipment, EPA believed that a more flexible 
but as effective requirement should be developed, particularly for 
refrigerant transferred between owners whose equipment was similar and 
was serviced by the same contractor. However, the only existing 
standard at the time EPA promulgated the rule was ARI Standard 700, and 
the only agreed upon means of enforcing it was by limiting sale of used 
refrigerant to only certified reclaimers. Certified reclaimers, unlike 
contractors or technicians, are required to have the equipment 
available that can verify that the refrigerant meets the purity 
standards, thus ensuring its purity prior to selling the refrigerants.
    In order to encourage industry to explore the possibility of 
developing more flexible but still effective standards and technologies 
for purifying refrigerant, as well as more flexible means for ensuring 
compliance with purity standards, EPA adopted a commenter's suggestion 
and established an expiration date, or ``sunset,'' for the reclamation 
requirement. EPA accordingly made the reclamation requirements at 
Sec. 82.154 (g) and (h) effective until May 15, 1995, two years after 
publication of the final rule. EPA believed that this two-year period 
would be sufficient for industry to develop new guidelines for reuse of 
refrigerant and for EPA to complete a rulemaking to adopt them if EPA 
determined that they would continue to reduce emissions to the lowest 
achievable level and maximize the recapture and recycling of 
refrigerants (58 FR 28679).
    In December, 1994, a committee representing a wide range of 
interests within the air-conditioning and refrigeration industry 
published Industry Recycling Guide (IRG-2): Handling and Reuse of 
Refrigerants in the United States. This document establishes 
requirements and recommendations for the reuse of refrigerant in a 
number of different situations, including refrigerant transfers on the 
open market and between equipment owned by different people but 
serviced by the same contractor. Because EPA believes that these 
requirements would protect air-conditioning and refrigeration equipment 
while permitting technicians, contractors, and equipment owners more 
flexibility than the current requirements, EPA began pursuing a 
rulemaking to adopt the IRG-2 requirements. However, because the 
original sunset date was approaching, EPA also pursued a rulemaking to 
extend the effectiveness of Sec. 82.154(g) and (h) (60 FR 14608). That 
rulemaking extended the effectiveness of the provisions until March 18, 
1996. EPA believed that this extension would provide sufficient 
opportunity to develop and publish a proposed rule, take public 
comment, and develop and publish a final rule.
    EPA drafted a proposed rulemaking concerning the adoption of a more 
flexible approach for ensuring refrigerant purity. However, several 
events beyond the agency's control have delayed the EPA's ability to 
release this proposal. While EPA expects to publish the proposal in the 
Federal Register prior to the end of the comment period for this direct 
final rulemaking, EPA will not have an opportunity to consider comments 
and promulgate a final action concerning the IRG-2 requirements prior 
to the expiration of these provisions on March 18, 1996.
    Representatives of the air-conditioning and refrigeration industry 
expressed concern that any lapse in refrigerant purity requirements 
could result in a number of problems, including sloppy handling of 
refrigerant and dumping of contaminated refrigerant on the market. 
These problems would result in significant damage to equipment, release 
of refrigerant, and aggravated refrigerant shortages.
    Currently, the reclamation requirement encourages careful handling 
of refrigerant, because refrigerant that is irretrievably contaminated 
(for instance through mixture with other refrigerants) will not be 
accepted by any reclaimer, rendering it worthless. If this check is 
removed, sloppy handling may become widespread. This would not only 
lead to damage to equipment, but to the permanent loss of part of the 
stock of pure refrigerant through refrigerant mixture. Even in the best 
case in which the mixed refrigerant was properly disposed of, the 
limited supply of refrigerant would thereby be further reduced, 
necessitating more retrofit or replacement of existing equipment. 
Unfortunately, it is likely that the mixed refrigerant would often be 
used in air-conditioning and refrigeration equipment or vented rather 
than disposed of properly.
    The possibility of widespread dumping of refrigerant on the market 
has been raised by reports that contractors and ``recyclers'' are 
stockpiling used refrigerant. In some cases, dumping dirty refrigerant 
on the market might be attractive simply because it enables the seller 
of refrigerant to avoid the costs of reclamation; for others, it might 
be attractive because the refrigerant is unreclaimable and therefore 
worthless if analyzed or sent to a reclaimer. In either situation, such 
dumping would lead to widespread equipment damage and potential 
releases of refrigerant. In addition, since domestic CFC production 
ceased December 31, 1995, protecting the purity of the existing stock 
of CFC refrigerants is essential.

III. Today's Action

    In response to these concerns, EPA is extending the effectiveness 
of the current reclamation requirements until the Agency can adopt 
replacement requirements. It was never EPA's intent to leave air-
conditioning and refrigeration equipment and refrigerant supplies 
unprotected by a purity standard, but only to replace the existing 
standard with a more flexible standard when that was developed. As 
discussed above, EPA is currently undertaking rulemaking to adopt a 
more flexible standard. 

[[Page 7726]]


IV. 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 lead to a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially affect 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 
the Executive Order.
    It has been determined by OMB and EPA that this action to amend 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. Unfunded Mandates Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') requires that the Agency prepare a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in expenditure by State, local, and tribal governments, 
in aggregate, or by the private sector, of $100 million or more in any 
one year. Section 203 requires the Agency to establish a plan for 
obtaining input from and informing, educating, and advising any small 
governments that may be significantly or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, the Agency must 
identify and consider a reasonable number of regulatory alternatives 
before promulgating a rule for which a budgetary impact statement must 
be prepared. The Agency must select from those alternatives the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule, unless the Agency explains why 
this alternative is not selected or the selection of this alternative 
is inconsistent with law.
    Because this rulemaking is estimated to result in the expenditure 
by State, local, and tribal governments or private sector of less than 
$100 million in any one year, the Agency has not prepared a budgetary 
impact statement or specifically addressed the selection of the least 
costly, most cost-effective, or least burdensome alternative. Because 
small governments will not be significantly or uniquely affected by 
this rule, the Agency is not required to develop a plan with regard to 
small governments. As discussed in this preamble, this rule merely 
extends the current reclamation requirements during consideration of a 
more flexible approach that may result in reducing the burden of part 
82 Subpart F of the Stratospheric Protection regulations on regulated 
entities, including State, local, and tribal governments or private 
sector entities.

C. Paperwork Reduction Act

    There are no additional information collection requirements 
associated with this rulemaking. EPA has determined that the Paperwork 
Reduction Act does not apply. The initial Sec. 608 final rulemaking did 
address all recordkeeping associated with the refrigerant purity 
provisions. An Information Collection Request (ICR) document was 
prepared by EPA and approved by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This 
ICR is contained in the public docket A-92-01.

D. 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 since this amendment merely extends a current 
requirement designed to protect purity of refrigerants temporarily, 
there will be no adverse effects for the regulated community, including 
small entities. An examination of the impacts of these provisions was 
discussed in the initial final rule promulgated under Sec. 608 (58 FR 
28660). That final rule assessed the impact the rule may have on small 
entities. A separate regulatory impact analysis was developed. That 
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.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Chlorofluorocarbons, 
Hydrochlorofluorocarbons, Interstate commerce, Reporting and 
reclamation, recordkeeping requirements, refrigerant purity, recycling, 
Stratospheric ozone layer.

    Dated: February 14, 1996.
Carol M. Browner,
Administrator.

    Part 82, chapter I, title 40, of the Code of Federal Regulations, 
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 82.154 is amended by revising paragraphs (g) and (h) to 
read as follows:


Sec. 82.154  Prohibitions.

* * * * *
    (g) Effective until December 31, 1996, no person may sell or offer 
for sale for use as a refrigerant any class I or class II substance 
consisting wholly or in part of used refrigerant unless:
    (1) The class I or class II substance has been reclaimed as defined 
at Sec. 82.152;
    (2) The class I or class II substance was used only in an MVAC or 
MVAC-like appliance and is to be used only in an MVAC or MVAC-like 
appliance; or
    (3) The class I or class II substance is contained in an appliance 
that is sold or offered for sale together with the class I or class II 
substance.
    (h) Effective until December 31, 1996, no person may sell or offer 
for sale for use as a refrigerant any class I or class II substance 
consisting wholly or in part of used refrigerant unless:
    (1) The class I or class II substance has been reclaimed by a 
person who has been certified as a reclaimer pursuant to Sec. 82.164;
    (2) The class I or class II substance was used only in an MVAC or 
MVAC-like appliance and is to be used only in an MVAC or MVAC-like 
appliance; or
    (3) The class I or class II substance is contained in an appliance 
that is sold or 

[[Page 7727]]
offered for sale together with the class I or class II substance.
* * * * *
[FR Doc. 96-4038 Filed 2-28-96; 8:45 am]
BILLING CODE 6560-50-P