[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Proposed Rules]
[Pages 19371-19376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7406]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7899-2]
RIN 2060-AM51


Protection of Stratospheric Ozone: Substitute Refrigerant 
Recycling; Amendment to the Definition of Refrigerant

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing changes 
to correct the final rule published in the Federal Register on March 
12, 2004. Specifically, EPA is proposing to amend the regulatory text 
for the definitions of refrigerant and technician and the prohibition 
against venting substitute refrigerants. EPA is also proposing to amend 
the prohibition against venting substitute refrigerants to reflect the 
proposed changes to the definitions. These changes are being proposed 
to make certain that the regulations promulgated on March 12, 2004 
cannot be construed as a restriction on the sales of substitutes that 
do not consist of an ozone-depleting substance (ODS), such as pure 
hydrofluorocarbon (HFC) and perfluorocarbon (PFC) substitutes.

DATES: Comments on this proposed rule must be received on or before May 
13, 2005, unless a public hearing is requested. If requested by April 
28, 2005 a hearing will be held on May 13, 2005 and the comment period 
will be extended until May 31, 2005. Inquires regarding a public 
hearing should be directed to the contact person listed below.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0070 by one of the following methods:
     Federal eRulemaking portal http://www.regulations.gov. 
Follow the on-line instructions for submitting comments;
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments;
     Fax comments to (202) 566-1741; or
     Mail/hand delivery: Submit comments to Air and Radiation 
Docket at EPA West, 1301 Constitution Avenue NW., Room B108, Mail Code 
6102T, Washington, DC 20460, Phone: (202) 566-1742.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0070. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available on-line at 
http://www.epa.gov/edocket, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through EDOCKET, 
regulations.gov, or e-mail. The EPA EDOCKET and the Federal 
regulations.gov Web sites are ``anonymous access'' systems, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through EDOCKET or regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit

[[Page 19372]]

EDOCKET on-line or see the Federal Register of May 31, 2002 (67 FR 
38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air and Radiation Docket EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Julius Banks; (202) 343-9870; 
Stratospheric Protection Division, Office of Atmospheric Programs, 
Office of Air and Radiation (6205J); 1200 Pennsylvania Avenue, NW.; 
Washington, DC 20460. The Stratospheric Ozone Information Hotline, 800-
296-1996, and the Ozone Web page, http://www.epa.gov/ozone/title6/608/regulations/index.html, can also be contacted for further information 
concerning this correction.

SUPPLEMENTARY INFORMATION: EPA views this as a noncontroversial action 
and anticipates no adverse comment. Therefore, in today's Federal 
Register, we are publishing a separate Direct Final rulemaking to 
correct the definitions of refrigerant and technician and amend the 
prohibition against the knowing venting of substitutes. The Direct 
Final rule will be effective on June 13, 2005 without further notice 
unless we receive adverse comment regarding the intent of the amended 
definitions and the amended prohibition by May 13, 2005. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments on the proposed rule in a 
subsequent final rule. EPA will not institute a second comment period 
on this action. Any parties interested in commenting must do so at this 
time.
    EPA emphasizes that it is not re-proposing the June 11, 1998 
proposal (63 FR 32044) to restrict the sale of hydrofluorocarbon (HFC) 
and perfluorocarbon (PFC) substitutes, but is only taking action to 
correct the definitions of refrigerant and technician at Sec.  82.152 
and amend the venting prohibition at Sec.  82.154(a) to make certain 
that the definitions and prohibition are consistent with the expressed 
intent of the March 12, 2004 (69 FR 11946) final rule to not restrict 
the sales of such substitutes. EPA discussed and responded to comments 
concerning the sales restrictions on substitutes for refrigerants, and 
its extension to substitutes for refrigerants that consist in part or 
whole of a class I or class II ozone-depleting substance in the March 
12, 2004 final rulemaking (69 FR 11969). Comments that are submitted in 
response to this notice that pertain to the merits of or implementation 
of a sales restriction on HFC or PFC substitutes are considered to be 
outside of the scope of today's action.

Table of Contents

I. Regulated Entities
II. Overview
III. Today's Action
    A. Correction to the Definition of Refrigerant
    B. Amendment to the Prohibition Against Venting Substitutes
    C. Correction to the Definition of Technician
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. Regulated Entities

    Entities potentially regulated by this action include those that 
manufacture, own, maintain, service, repair, or dispose of all types of 
air-conditioning and refrigeration equipment (i.e., appliances as 
defined by Sec.  82.152); those who sell, purchase, or reclaim 
refrigerants and their substitutes; and those who own refrigerant 
recycling or recovery equipment. This listing is not intended to be 
exhaustive, but rather provides a guide for readers regarding entities 
likely to be regulated by this action. 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 Act 
Amendments of 1990 (the Act). The applicability criteria are discussed 
below and in regulations published on December 30, 1993 (58 FR 69638). 
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. Overview

    On March 12, 2004 (69 FR 11946), EPA amended the rule on 
refrigerant recycling, promulgated under section 608 of the Act, to 
clarify how the requirements of section 608 apply to substitutes for 
chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC) 
refrigerants. This rule explicated the self-effectuating statutory 
prohibition against the knowing venting of substitutes to the 
atmosphere during the maintenance, service, repair, and disposal of 
appliances that became effective on November 15, 1995. The rule also 
exempted certain substitutes from the venting prohibition on the basis 
of current evidence that their release is adequately addressed by other 
authorities; hence, such release does not pose a threat to the 
environment under section 608 (69 FR 11949).
    EPA also amended the refrigerant recovery and recycling 
requirements for CFC and HCFC refrigerants to accommodate the 
proliferation of new substitutes for these refrigerants on the market, 
and to clarify that the venting prohibition applies to all substitutes 
and refrigerants for which EPA has not made a determination that their 
release ``does not pose a threat to the environment,'' including HFC 
and PFC substitutes. The March 12, 2004 final rule was not intended to 
either mandate section 608 technician certification for those 
maintaining, repairing, or servicing appliances using substitutes that 
do not consist of a class I or class II ODS or to restrict the sale of 
substitutes that do not contribute to the depletion of the 
stratospheric ozone layer, such as pure HFC and PFC substitutes (69 FR 
11946).

III. Today's Action

    With this action, EPA is proposing to correct the definitions of 
refrigerant and technician at Sec.  82.152 and amend the prohibition 
against the knowing venting of substitutes at Sec.  82.154(a), to 
reflect the intent and preamble language of the March 12, 2004 final 
rule to not regulate the use or sale of substitutes that do not consist 
of a class I or class II ozone-depleting substance.

[[Page 19373]]

A. Correction to the Definition of Refrigerant

    While the intent of the March 12, 2004 final rule was not to 
restrict the sale of refrigerant substitutes that do not contribute to 
the depletion of the stratospheric ozone layer (69 FR 11946), the 
accompanying regulatory text could be construed as having the opposite 
effect. Specifically, the final rule's definition of refrigerant at 
Sec.  82.152 (69 FR 11957) stated that refrigerant means, for purposes 
of this subpart, any substance consisting in part or whole of a class I 
or class II ozone-depleting substance that is used for heat transfer 
purposes and provides a cooling effect, or any substance used as a 
substitute for such a class I or class II substance by any user in a 
given end-use, except for the following substitutes in the following 
end-uses:
    (1) Ammonia in commercial or industrial process refrigeration or in 
absorption units;
    (2) Hydrocarbons in industrial process refrigeration (processing of 
hydrocarbons);
    (3) Chlorine in industrial process refrigeration (processing of 
chlorine and chlorine compounds);
    (4) Carbon dioxide in any application;
    (5) Nitrogen in any application; or
    (6) Water in any application.
    EPA is aware that the above definition of refrigerant could be 
construed as being at odds with the preamble that discusses the 
Agency's intent to not restrict the sale of substitutes that do not 
consist of a class I or class II ODS. The unintentional inclusion of 
the phrase or any substance used as a substitute for such a class I or 
class II substance * * *, implies that any substance, including pure 
HFCs and PFCs, used as a substitute for such a class I or class II 
substance would be captured under the definition of refrigerant. If 
left uncorrected, this could create ambiguity about the interpretation 
of the regulations promulgated at 40 CFR part 82, subpart F (i.e., 
section 608 regulations) and could have unintended implications on the 
prohibitions, required practices, and reporting and recordkeeping 
requirements of the regulations promulgated under section 608 of Title 
VI of the Clean Air Act (e.g., mandatory certification of technicians 
servicing appliances using pure HFC refrigerants and a restriction on 
the sale of HFC substitutes to certified technicians).
    Therefore, EPA is proposing to correct the definition of 
refrigerant by deleting the aforementioned phrase. The proposed 
definition at Sec.  82.152 reads: Refrigerant means, for purposes of 
this subpart, any substance consisting in part or whole of a class I or 
class II ozone-depleting substance that is used for heat transfer 
purposes and provides a cooling effect. EPA has deleted the text 
specifying the exempted substitutes (namely, ammonia in commercial or 
industrial process refrigeration or in absorption units; hydrocarbons 
in industrial process refrigeration (processing of hydrocarbons); 
chlorine in industrial process refrigeration (processing of chlorine 
and chlorine compounds); carbon dioxide in any application; nitrogen in 
any application; or water in any application). Since these substances 
do not contain a class I or class II ODS, such a level of specificity 
is not required within the amended definition.
    EPA requests comment on whether the proposed definition of 
refrigerant accurately reflects the Agency's intent to only include 
those substitutes that contain a class I or class II ODS, and hence 
contribute to depletion of the stratospheric ozone layer. EPA also 
seeks comment on whether the deleted text specifying the exempted 
substitutes provides greater clarity to the definition.

B. Amendment to the Prohibition Against Venting Substitutes

    The proposed correction to the definition of refrigerant requires 
an amendment to the regulatory refrigerant venting prohibition at Sec.  
82.154(a). The March 12, 2004 amendment to the section 608 regulatory 
venting prohibition (69 FR 11979) states that Effective May 11, 2004, 
no person maintaining, servicing, repairing, or disposing of appliances 
may knowingly vent or otherwise release into the environment any 
refrigerant from such appliances. * * * If not addressed, the proposed 
definition of refrigerant would exclude pure HFC and PFC substitutes 
\1\ from the venting prohibition, because they do not consist in part 
or whole of a class I or class II ozone-depleting substance. The 
preamble to the March 12, 2004 final rule made clear that the Agency 
intended to exempt certain substitutes, namely, ammonia in commercial 
or industrial process refrigeration or in absorption units; 
hydrocarbons in industrial process refrigeration (processing of 
hydrocarbons); chlorine in industrial process refrigeration (processing 
of chlorine and chlorine compounds); carbon dioxide in any application; 
nitrogen in any application; or water in any application (69 FR 11949-
54) from the statutory venting prohibition, because their release is 
adequately addressed by other entities; therefore, their release does 
not pose a threat to the environment under section 608 of Title VI of 
the Clean Air Act. However, EPA did not make such a finding for 
substitutes consisting in part or whole of an HFC or PFC substitute. So 
it remains illegal to knowingly vent substitutes consisting in part or 
whole of an HFC or PFC substitute during the maintenance, service, 
repair, or disposal of appliances (69 FR 11947).
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    \1\ As defined at Sec.  82.152, Substitute means any chemical or 
product, whether existing or new, that is used by any person as an 
EPA approved replacement for a class I or II ozone-depleting 
substance in a given refrigeration or air-conditioning end-use.
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    In accordance with section 608(c)(2) of Title VI of the Clean Air 
Act (as amended in 1990), de minimis releases associated with good 
faith attempts to recapture and recycle or safely dispose of such 
substitutes shall not be subject to the prohibition. EPA has not 
promulgated regulations mandating certification of refrigerant 
recycling/recovery equipment intended for use with substitutes; 
therefore, EPA is not proposing a regulatory provision for the 
mandatory use of certified recovery/recycling equipment as an option 
for determining de minimis releases of substitutes. However, the lack 
of a regulatory provision should not be interpreted as an exemption to 
the venting prohibition for non-exempted substitutes. The regulatory 
prohibition at Sec.  82.154(a) reflects the statutory reference to de 
minimis releases of substitutes as they pertain to good faith attempts 
to recapture and recycle or safely dispose of such substitutes.
    In order to emphasize that the knowingly venting of HFC and PFC 
substitutes remains illegal during the maintenance, service, repair, 
and disposal of appliances and to make certain that the de minimis 
exemption for refrigerants remains in the regulatory prohibition, EPA 
is proposing to adopt the statutory section 608(c)(2) venting 
prohibition into the section 608 regulatory prohibition at Sec.  
82.154(a). The proposed definition of refrigerant means that 
refrigerant releases shall be considered de minimis only if they occur 
when: (1) The required practices set forth in Sec.  82.156 are 
observed, recovery or recycling machines that meet the requirements set 
forth in Sec.  82.158 are used, and the technician certification 
provisions set forth in Sec.  82.161 are observed; or (2) The 
requirements set forth for the service of motor vehicle air-
conditioners (MVACs) in subpart B (i.e., section 609) of this part are 
observed. EPA is also proposing to list, in the regulatory prohibition 
at Sec.  82.154(a), the substitutes that have been exempted from the 
statutory

[[Page 19374]]

venting prohibition. EPA is proposing this edit in order to clarify 
which substitutes are exempt from the venting prohibition. Hence, EPA 
is proposing to amend the prohibition at Sec.  82.154(a) to read: (a) 
Effective June 13, 2005, no person maintaining, servicing, repairing, 
or disposing of appliances may knowingly vent or otherwise release into 
the environment any refrigerant or substitute from such appliances, 
with the exception of the following substitutes in the following end-
uses:
    (1) Ammonia in commercial or industrial process refrigeration or in 
absorption units;
    (2) Hydrocarbons in industrial process refrigeration (processing of 
hydrocarbons);
    (3) Chlorine in industrial process refrigeration (processing of 
chlorine and chlorine compounds);
    (4) Carbon dioxide in any application;
    (5) Nitrogen in any application; or
    (6) Water in any application.
    The knowing release of a refrigerant or non-exempt substitute 
subsequent to its recovery from an appliance shall be considered a 
violation of this prohibition. De minimis releases associated with good 
faith attempts to recycle or recover refrigerants or non-exempt 
substitutes are not subject to this prohibition. Refrigerant releases 
shall be considered de minimis only if they occur when: (1) The 
required practices set forth in Sec.  82.156 are observed, recovery or 
recycling machines that meet the requirements set forth in Sec.  82.158 
are used, and the technician certification provisions set forth in 
Sec.  82.161 are observed; or (2) The requirements set forth in subpart 
B of this part are observed.
    EPA requests comment as to whether the proposed edits to the 
regulatory venting prohibition accurately reflects the Agency's intent 
to not exclude HFC and PFC substitutes from the section 608(c)(2) 
venting prohibition. Thereby making certain that it remains unlawful 
for any person, in the course of maintaining, servicing, repairing, or 
disposing of an appliance, to knowingly vent or otherwise knowingly 
release HFC and PFC substitutes into the environment. EPA also seeks 
comment on whether the proposed edits maintain the exemptions to the 
prohibition for de minimis releases associated with good faith attempts 
to recapture and recycle or properly dispose of substitutes. Finally, 
EPA seeks comment on whether the edits accurately depict the Agency's 
exemption to the venting prohibition for the following substitutes: (1) 
Ammonia in commercial or industrial process refrigeration or in 
absorption units; (2) Hydrocarbons in industrial process refrigeration 
(processing of hydrocarbons); (3) Chlorine in industrial process 
refrigeration (processing of chlorine and chlorine compounds); (4) 
Carbon dioxide in any application; (5) Nitrogen in any application; or 
(6) Water in any application.

C. Correction to the Definition of Technician

    In 1994, EPA finalized the definition of technician at Sec.  82.152 
to read: 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 
* * * (59 FR 55912 (November 9, 1994)). On June 11, 1998 (63 FR 32089), 
EPA proposed an amendment to the definition of technician to include 
persons who perform maintenance, service, repair, or disposal that 
could be reasonably expected to release class I substances, class II 
substances, or substitutes from appliances into the atmosphere (63 FR 
32059). The intent of proposed amendment to the definition was to 
require section 608 technician certification for persons maintaining, 
repairing, servicing, or disposing of appliances containing non-exempt 
substitutes; however, EPA did not intend to remove the phrase except 
for MVACs from the definition of technician.
    A petition for review challenging the March 12, 2004 final rule 
stated that the amended definition of technician could be 
misinterpreted to mean that technicians servicing and maintaining MVACs 
must also have section 608 technician certification. EPA did not intend 
for the amended definition of technician at Sec.  82.152 to include 
persons servicing or repairing MVACs, and therefore is proposing to 
revert back to the original definition. EPA seeks comment on whether 
the proposal to revert back to the original definition of technician 
satisfies the Agency's intent to not require technician certification 
under section 608 for persons servicing or repairing MVACs.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to the Office of Management and Budget (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 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to Executive Order 12866 review.

B. Paperwork Reduction Act

    OMB has previously approved the information collection requirements 
contained in the existing regulations at 40 CFR part 82, subpart F 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB Control Number 2060-0256, EPA ICR number 
1626.08. A copy of the OMB approved Information Collection Request 
(ICR) may be obtained from Susan Auby, Collection Strategies Division; 
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., 
NW., Washington, DC 20460 or by calling (202) 566-1672. This action 
does not impose any new information collection burden beyond the 
already-approved ICR.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control

[[Page 19375]]

number. The OMB control numbers for EPA's regulations in 40 CFR are 
listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by Small Business Administration size standards primarily engaged in 
the supply and sale of motor vehicle air-conditioning refrigerants as 
defined by NAIC codes 42114, 42193, and 441310; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this proposed rule are small business as 
defined by Small Business Administration size standards primarily 
engaged in the supply and sale of motor vehicle air-conditioning 
refrigerants as defined by NAIC codes 42114, 42193, and 441310. We have 
determined that approximately 819 small entities will experience an 
impact ranging from 0.001 percent to 0.163 percent, based on their 
annual sales and revenues.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. EPA is 
proposing this rulemaking to make certain that the regulatory text in 
the March 12, 2004 rulemaking (63 FR 11946) is consistent with the 
intent to not restrict the sale of substitutes that do not consist of a 
class I or class II ozone-depleting substance, while making certain 
that the statutory prohibition against knowingly releasing such 
substitutes remains. This rule proposes to correct the definitions of 
refrigerant and technician and makes certain that only substances 
consisting whole or in part of a class I or class II ODS are covered 
under the section 608 refrigerant regulations. Hence any burden 
associated with technician certification or sales of refrigerant 
substitutes not consisting of an ODS is removed by correcting these 
definitions. We continue to be interested in the potential impacts of 
the proposed rule on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government Agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. This rule supplements the statutory self-
effectuating prohibition against venting refrigerants by ensuring that 
certain service practices are conducted that reduce emissions and 
establish equipment and reclamation certification requirements. These 
standards are amendments to the recycling standards under section 608 
of the Clean Air Act. Many of these standards involve reporting 
requirements and are not expected to be a high cost issue. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.
    For the reasons outlined above, EPA has also determined that this 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, today's rule is not subject to 
the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August 
10, 1999)), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The regulations promulgated 
under today's action are done so under Title VI of the Act which does 
not grant delegation rights to the States. Thus, Executive Order 13132 
does not apply to this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249 (November 9, 2000)), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified

[[Page 19376]]

in Executive Order 13175. Today's rule does not significantly or 
uniquely affect the communities of Indian tribal governments. Thus, 
Executive Order 13175 does not apply to this rule.

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

    Executive Order 13045: Protection of Children from Environmental 
Health & Safety Risks (62 FR 19885 (April 23, 1997)) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
does not concern an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. This 
rule amends the recycling standards for refrigerants to protect the 
stratosphere from ozone depletion, which in turn protects human health 
and the environment from increased amounts of UV radiation.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rulemaking does not involve voluntary consensus standards.

List of Subjects in 40 CFR Part 82

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

    Dated: April 7, 2005.
Stephen L. Johnson,
Acting Administrator.
[FR Doc. 05-7406 Filed 4-12-05; 8:45 am]
BILLING CODE 6560-50-P