[Federal Register Volume 61, Number 250 (Friday, December 27, 1996)]
[Rules and Regulations]
[Pages 68506-68508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32969]



[[Page 68505]]

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Part IX





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 82



Protection of Stratospheric Ozone: Reclamation Requirements Extension; 
Final Rule

  Federal Register / Vol. 61, No. 250 / Friday, December 27, 1996 / 
Rules and Regulations  

[[Page 68506]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5670-2]
RIN 2060-AF36


Protection of Stratospheric Ozone: Extension of The Existing 
Reclamation Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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 December 31, 1996, until EPA 
adopts revised purity requirements. EPA initially extended these 
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 proposed a more flexible approach to ensuring the purity of 
refrigerants on February 29, 1996, and solicited public comment. EPA 
received significant comments regarding a potential delegation of 
authority and an unintentional creation of a monopoly. EPA believes 
prior to adopting a more flexible approach EPA must further consider 
these comments. EPA intends to issue a supplemental action that would 
revise several aspects of the February 29, 1996 proposal.
    To prevent any lapse in the purity standards, on November 1, 1996, 
EPA proposed to extend the current reclamation requirements 
indefinitely until EPA adopts revised requirements. Today EPA is 
extending the current reclamation requirements. This continuation 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: January 1, 1997.

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, D.C. 
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.

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, D.C. 20460, (202) 233-9729. 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. Regulated Entities
II. Background and Notice of Proposed Rulemaking
III. Response to Comments
IV. Today's Action
V. Effective Date
VI. Summary of Supporting Analysis
A. Executive Order 12866
B. Unfunded Mandates Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Analysis
VII. Submission to Congress and the General Accounting Office

I. Regulated Entities

    Entities potentially regulated by this action are those that wish 
to recover, recycle, reclaim, sell, or distribute in interstate 
commerce refrigerants that contain chlorofluorocarbons (CFCs) and/or 
hydrochlorofluorocarbons (HCFCs). Regulated categories and entities 
include:

------------------------------------------------------------------------
                                                Example of regulated    
                 Category                             entities          
------------------------------------------------------------------------
Industry..................................  Reclaimers.                 
                                            Equipment manufacturers.    
                                            Air-conditioning and        
                                             refrigeration contractors  
                                             and technicians.           
                                            Owners and operators of     
                                             industrial process         
                                             refrigeration equipment.   
                                            Laboratories.               
                                            Plumbing, heating and       
                                             cooling contractors.       
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that could potentially 
be affected by this action. Other types of entities not listed in the 
table could also be affected. To determine whether your company is 
regulated by this action, you should carefully examine the 
applicability criteria contained in Section 608 of the Clean Air 
Amendments of 1990; discussed in regulations published on May 14, 1993 
(59 FR 28660); and discussed below. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Background and Notice of Proposed Rulemaking

    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. As discussed in the Notice of Proposed 
Rulemaking (NPRM) issued November 1, 1996 (61 FR 56493), these 
requirements will expire on December 31, 1996. EPA proposed extending 
these requirements beyond the end of 1996.
    EPA is in the process of considering whether it is appropriate to 
promulgate new, more flexible, reclamation requirements based on 
industry guidelines. To that end, EPA issued a separate NPRM on 
February 29, 1996 (61 FR 7858). The February 29, 1996 NPRM was an 
omnibus notice that addressed many aspects of 40 CFR Part 82, Subpart 
F. Among the various issues raised in that NPRM was the adoption of a 
more flexible approach to reclamation with the related adoption of 
third-party certification for laboratories and reclaimers. Other issues 
addressed in that NPRM include changes to the recordkeeping and 
reporting requirements for technician certification programs, the 
adoption of an updated industry standard, amending the definitions of 
motor vehicle air-conditioning-like appliances and small appliances, 
the adoption of formal revocation procedures for approved certification 
programs, transfers of refrigerant between subsidiaries, and clarifying 
the distinction between major and minor repairs. EPA has analyzed the 
public comments concerning the February 29, 1996 NPRM, and will issue a 
final rulemaking soon; however, EPA has decided not to complete 
promulgation of all the proposed changes discussed in that NPRM as part 
of one final package. The decision to delay action on specific issues 
proposed in the February 29, 1996 NPRM and to extend the current 
reclamation requirements was discussed in the November 1, 1996 NPRM (61 
FR 56493).

III. Response to Comments

    EPA requested and received nine comments regarding the November 1, 
1996 NPRM. All the comments

[[Page 68507]]

supported EPA's proposed extension of the current requirements beyond 
December 31, 1996.
    Of these nine comments received, six commenters raised similar 
points. These commenters stated that it is important to extend the 
reclamation requirements for both environmental and consumer protection 
needs. The commenters stated that the reclamation requirements ensure 
that used refrigerant sold in the marketplace meets the ARI Standard 
700 levels of purity. The commenters indicated that avoiding 
contamination of the refrigerant supply is paramount. The commenters 
highlighted concerns that a lapse in the requirements could lead to 
widespread contamination of the stock of used CFC- and HCFC-
refrigerants leading to increased equipment failures and potential 
venting of refrigerants. These commenters also indicated that EPA 
should continue the evaluation of a more flexible approach to 
reclamation and implement such an approach as soon as possible. EPA 
agrees with these commenters.
    EPA received one comment from a company that operates many older 
air-conditioning and refrigeration systems. This commenter, a supporter 
of the extension, indicated that contamination of refrigerant stock 
could damage parts, leading to a shortage of replacement parts and 
resulting in a consequent cost increases for replacement parts. EPA 
understands this commenter's concerns for readily available, fairly 
priced replacement parts.
    While the last two commenters supported the proposed decision, they 
requested that EPA adopt a more flexible approach within a short 
timeframe. One commenter stated that their organization would continue 
to support the use of the current reclamation requirements as an 
interim measure and that EPA should adopt a more flexible approach with 
due speed. The other commenter stated that there was no choice but to 
support the extension because the alternative of permitting the 
requirements to lapse would be worse. This commenter requested that EPA 
set a specific deadline for the adoption of a more flexible reclamation 
requirement and that this deadline should be no later than a date 
within the next three calendar months. The commenter further stated 
that EPA should do everything within its power to meet such a deadline. 
EPA understands the concerns raised by this commenter. EPA had intended 
to adopt a more flexible approach to reclamation before December 31, 
1996, therefore, avoiding the need for today's action. However, as 
discussed above and in the NPRM, central to the proposed adoption of a 
more flexible approach to reclamation is the proposed adoption of 
third-party certification programs for both laboratories and 
reclaimers. Commenters submitting information regarding the February 
29, 1996 NPRM identified several specific concerns regarding the 
appropriateness of delegating various functions to third-parties and 
whether EPA may unintentionally create a monopoly. These comments have 
led to the need for additional research and consultation by EPA. EPA 
did not propose in the November 1, 1996 NPRM any specific date to 
sunset the reclamation requirements since such a date could occur prior 
to the completion of EPA's analysis. Instead, EPA indicated that the 
Agency would work to expedite the adoption of a more flexible approach 
and would extend the current requirements only until such action is 
completed.
    EPA did not propose a date-certain sunset partly because EPA does 
not believe a date-certain approach is necessary at this juncture. EPA 
established sunsets for these requirements in the past based on EPA's 
estimation of the time required for industry representatives to develop 
an alternative to traditional reclamation that permits flexibility 
without compromising the goals of environmental protection and the time 
necessary for the Agency to adopt that approach. Initially, EPA 
anticipated that the industry standard would be a recycling standard 
similar to the standard used to recycle CFC-12 recovered from motor 
vehicle air conditioners. However, the standard developed by industry, 
known as Industry Recycling Guide -2 (IRG-2) is significantly different 
from what EPA had initially envisioned. IRG-2 establishes a method for 
contractors and technicians to evaluate used refrigerant based on the 
history of that refrigerant, to use recycling devices where 
appropriate, and to ultimately rely on the testing of representative 
refrigerant samples by off-site laboratories prior to permitting the 
refrigerant to change ownership. IRG-2 could not be adopted by EPA 
without the further development of procedures for adequately testing 
representative samples by capable laboratories. The need to develop 
such a program and the concerns raised by commenters were not initially 
anticipated by EPA. EPA also did not predict other factors that slowed 
the rulemaking process, such as budgetary events beyond EPA's control.
    These unforseen circumstances have led to today's action. While EPA 
anticipates the adoption of the more flexible reclamation approach in 
early 1997, EPA does not wish to ignore the possibility that other 
unforseen circumstances could arise resulting in a further delay. If 
such unforeseen circumstances did arise, it is likely that EPA would 
pursue another extension, thus diverting resources from the more 
important endeavor of ultimately replacing the current requirements 
with a more flexible approach. Therefore, EPA did not propose and today 
is not adding a sunset date.

IV. Today's Action

    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 previously, EPA is currently 
undertaking rulemaking to adopt a more flexible standard.

V. Effective Date

    Today's action will be effective starting January 1, 1997. This 
expedited effective date is necessary to avoid a lapse in the current 
reclamation requirements. Section 553 of the Administrative Procedures 
Act (APA) authorizes agencies to dispense with certain procedures for 
rules when there exists ``good cause'' to do so. Given the lack of 
burden upon affected parties, the need to ensure that no regulatory 
lapse occurs, and in accordance with section 553(b), the Agency finds 
that there is good cause to accelerate the effective date of this 
rulemaking because to delay the effective date would be 
``impracticable, unnecessary, or contrary to the public interest.''
    The retention of the current reclamation requirements will protect 
the environment, public health, and consumers by ensuring that 
contaminated refrigerants are not vented or charged into equipment. 
Therefore, the effective date for this rulemaking will be January 1, 
1997.

VI. 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.

[[Page 68508]]

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 entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    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 is no additional information collection requirements 
associated with this rulemaking. Therefore, 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 Analysis

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule because it 
continues existing requirements. EPA would like to clarify that there 
was a misstatement in the NPRM regarding the potential impact that this 
rule would have on small entities. This rule does not make any change 
to the current regulatory situation. It does not provide relief or any 
increase from current regulatory burdens. Thus the regulatory 
flexibility analysis discussed in the initial final rule (May 14, 1996, 
58 FR 28660) is still applicable.

VII. Submission To Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA submitted a 
report containing this rule and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the General Accounting Office prior to publication of the rule in 
today's Federal Register. This rule is not a ``major rule'' as defined 
by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 82

    Environmental protection, Aerosols, Air pollution control, 
Chlorofluorocarbons, Chemicals, Hydrochlorofluorocarbons, Stratospheric 
ozone layer.

    Dated: December 20, 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) 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) 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 offered for sale together with the class I or class II 
substance.
* * * * *
[FR Doc. 96-32969 Filed 12-26-96; 8:45 am]
BILLING CODE 6560-50-P