[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Rules and Regulations]
[Pages 45202-45205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20840]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2017-0213; FRL-9968-68-OAR]
RIN 2060-AT43


Protection of Stratospheric Ozone: Refrigerant Management 
Regulations for Small Cans of Motor Vehicle Refrigerant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to correct an editing 
oversight that led to a potential conflict in a prior rulemaking as to 
whether or not containers holding two pounds or less of non-exempt 
substitute refrigerants for use in motor vehicle air conditioning that 
are not equipped with a self-sealing valve can be sold to persons that 
are not certified technicians, provided those small cans were 
manufactured or imported prior to January 1, 2018. This action 
clarifies that those small cans may continue to be sold to persons that 
are not certified as technicians under sections 608 or 609 of the Clean 
Air Act.

DATES: This rule is effective on December 27, 2017 without further 
notice, unless EPA receives adverse comment by October 30, 2017. 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.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2017-0213, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sara Kemme by regular mail: U.S. 
Environmental Protection Agency, Stratospheric Protection Division 
(6205T), 1200 Pennsylvania Avenue NW., Washington, DC 20460; by 
telephone: (202) 566-0511; or by email: [email protected].

SUPPLEMENTARY INFORMATION

I. Why is EPA using a direct final rule?

    EPA is publishing this direct final rule without a prior proposed 
rule because we view this as a noncontroversial action and anticipate 
no adverse comment. This rule makes a minor change in regulatory text, 
which is intended to resolve a potential conflict in the current 
regulatory text and to ensure that the regulatory text conforms to the 
EPA's intention when finalizing the regulatory text at issue. However, 
in the ``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate document that will serve as the proposed rule to 
make this revision to the regulatory text if adverse comments are 
received on this direct final rule. We will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time. In this action, EPA is not making, and is not 
seeking comment on, any changes to the regulations at 40 CFR part 82, 
subpart F other than the revision discussed in this notice. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. In that case, we would address 
all public comments in any subsequent final rule based on the proposed 
rule. If no adverse comment is received by October 30, 2017, this 
direct final rule will be effective on December 27, 2017 without 
further notice and no further action will be taken on the proposed 
rule.

II. Does this action apply to me?

    Categories and entities potentially affected by this action include 
entities that distribute or sell small cans of refrigerant for use in 
motor vehicle air conditioning (MVAC). Regulated entities include, but 
are not limited to, manufacturers and distributors of small cans of 
refrigerant (NAICS codes 325120, 441310, 447110) such as automotive 
parts and accessories stores and industrial gas manufacturers. This 
list is not intended to be exhaustive, but rather to provide a guide 
for readers

[[Page 45203]]

regarding entities likely to be regulated by this action. To determine 
whether your facility, company, business, or organization could be 
regulated by this action, you should carefully examine the regulations 
at 40 CFR part 82, subpart F. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the FOR FURTHER INFORMATION CONTACT section.

III. What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI). In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

IV. What action is the agency taking?

    Section 608 of the Clean Air Act (CAA) bears the title ``National 
Recycling and Emission Reduction Program.'' Under the structure of 
section 608, this program has three main components. First, section 
608(a) requires EPA to establish standards and requirements regarding 
use and disposal of class I and II substances, including a 
comprehensive refrigerant management program to limit emissions of 
ozone-depleting refrigerants. The CAA directs EPA to include 
regulations that reduce the use and emissions of class I and II 
substances to the lowest achievable level and that maximize the 
recapture and recycling of such substances. The second component, 
section 608(b), requires that the regulations issued pursuant to 
subsection (a) contain requirements for the safe disposal of class I 
and class II substances. The third component, section 608(c), prohibits 
the knowing venting, release, or disposal of ozone-depleting 
refrigerants and their substitutes during the maintenance, service, 
repair, or disposal of air-conditioning and refrigeration appliances or 
industrial process refrigeration.
    EPA first issued regulations under section 608 of the CAA on May 
14, 1993 (58 FR 28660), to establish the national refrigerant 
management program for ozone-depleting refrigerants recovered during 
the maintenance, service, repair, and disposal of air-conditioning and 
refrigeration appliances. These regulations were intended to 
substantially reduce the use and emissions of ozone-depleting 
refrigerants. EPA revised these regulations through subsequent 
rulemakings published on August 19, 1994 (59 FR 42950), November 9, 
1994 (59 FR 55912), August 8, 1995 (60 FR 40420), July 24, 2003 (68 FR 
43786), March 12, 2004 (69 FR 11946), January 11, 2005 (70 FR 1972), 
May 23, 2014 (79 FR 29682), and April 10, 2015 (80 FR 19453). For a 
more detailed summary of the history of EPA's Refrigerant Management 
Program see the discussion in the most recent update to these 
regulations at 81 FR 82272, 82275 (Nov. 18, 2016).
    On November 9, 2015, EPA proposed the most recent updates to the 
refrigerant management regulations under section 608 of the CAA (80 FR 
69458). Among other things, EPA proposed to extend the sales 
restriction to non-exempt substitute refrigerants with an exception for 
small cans of refrigerant for use in MVAC. That is, the proposed 
revisions would have restricted the sale of non-exempt substitute 
refrigerants to certified technicians, with an exception for small cans 
(two pounds or less) of non-exempt substitute refrigerant for the 
servicing of MVACs \1\ if the cans had a self-sealing valve. EPA 
requested comments on several aspects of this proposal including a 
scenario that would have included a sell-through provision for all 
small cans manufactured or imported prior to that effective date. 80 FR 
69481. The proposal further stated that:
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    \1\ In this context, containers that meet these criteria are 
referred to interchangeably as ``small cans of MVAC refrigerant,'' 
``small cans of refrigerant for MVAC servicing,'' or simply ``small 
cans.''

    For manufacture and import of small cans of refrigerant for MVAC 
servicing, EPA is proposing a compliance date of one year from 
publication of the final rule. EPA is also proposing to allow small 
cans manufactured and placed into initial inventory or imported 
before that date to be sold for one additional year. For example, if 
the rule is published on July 1, 2016, small can manufacturers would 
have until July 1, 2017, to transition their manufacturing lines to 
add self-sealing valves. Manufacturers, distributors, and auto parts 
stores would be able to sell all small cans manufactured and placed 
into initial inventory or imported prior to July 1, 2017, until July 
1, 2018. EPA seeks comments on this proposed implementation 
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timeline. [80 FR 69509]

    On November 18, 2016, EPA published a rule finalizing the proposed 
restriction that non-exempt substitute refrigerants may only be sold to 
technicians certified under sections 608 or 609 of the CAA. (81 FR 
82280). In the case of refrigerant for use in MVAC, EPA finalized the 
exemption for the sale of certain small cans of non-ozone-depleting 
substitutes with a self-sealing valve to allow the do-it-yourself 
community to continue servicing their personal vehicles. Id. However, 
the agency did not finalize the sell-through provision. The preamble to 
the final rule states that, ``EPA is requiring that small cans of non-
exempt substitute refrigerant be outfitted with self-sealing valves by 
January 1, 2018. Based on comments, EPA is not finalizing the proposal 
to prohibit the sale of small cans that do not contain self-sealing 
valves that were manufactured or imported prior to that requirement 
taking effect.'' Id. The preamble further stated:

    With regards to small cans of MVAC refrigerant, manufacturers, 
distributors and retailers of automotive refrigerant supported the 
proposed ``manufacture-by'' date of one year from publication of the 
final rule, but commented that they oppose a sell-through date for 
small cans that do not have self-sealing valves. They commented that 
such a requirement would be inefficient, burdensome, costly, and 
environmentally problematic. It would require all retailers to know 
of the requirement and establish processes for returning unsold cans 
back to

[[Page 45204]]

the manufacturer for destruction. More likely, the cans may be 
improperly disposed of, which would negate the environmental benefit 
of the new provisions. One commenter stated that a ``manufacture-
by'' date would shift EPA's burden in ensuring compliance from a few 
manufacturers to thousands of retailers. Furthermore, commenters 
cited EPA's July 2015 SNAP rule (80 FR 42901; July 20, 2015) which 
listed HFC-134a as unacceptable for use as an aerosol as of a 
``manufacture-by'' date, rather than a ``sell-by'' date. [81 FR 
82342]

    EPA described its intention to allow the continued sale of small 
cans without self-sealing valves that were manufactured or imported 
before the January 1, 2018, compliance date as follows:

    In response to the comments received on EPA's proposal to allow 
small cans manufactured and placed into initial inventory or 
imported before that date to be sold for one additional year, EPA is 
not finalizing the sell-through requirement and is finalizing only a 
date by which small cans must be manufactured or imported with a 
self-sealing valve. EPA agrees that this is the least-burdensome 
option and that it avoids the potential for any unintended 
consequences of a ``sell-by'' date. [81 FR 82342]

    These intentions were also expressed in the regulatory text at 40 
CFR 82.154(c)(2), which was revised in the November 2016 rule to state: 
``Self-sealing valve specifications. This provision applies starting 
January 1, 2018, for all containers holding two pounds or less of non-
exempt substitute refrigerant for use in an MVAC that are manufactured 
or imported on or after that date. (i) Each container holding two 
pounds or less of non-exempt substitute refrigerant for use in an MVAC 
must be equipped with a single self-sealing valve that automatically 
closes and seals when not dispensing refrigerant . . . .'' However, 
because of an editing error, another provision, 40 CFR 
82.154(c)(1)(ix), contains text that could be construed as 
contradicting the Agency's clearly expressed intent to allow non-
technicians to purchase, and retailers to sell, small cans of 
refrigerant for use in MVAC that were manufactured or imported before 
the January 1, 2018, compliance date irrespective of whether they have 
a self-sealing valve. The relevant text in 40 CFR 82.154(c)(1) provides 
that beginning January 1, 2018 no person may sell or distribute any 
non-exempt substitute for use as a refrigerant unless it ``is intended 
for use in an MVAC and is sold in a container designed to hold two 
pounds or less of refrigerant, has a unique fitting, and has a self-
sealing valve.
    The Automotive Refrigeration Products Institute and the Auto Care 
Association inquired about whether the language in 40 CFR 
82.154(c)(1)(ix) effectively negates the provision in 40 CFR 
82.154(c)(2) and the preamble discussion showing EPA's intention to 
allow small cans of refrigerant for use in MVAC manufactured or 
imported before January 1, 2018, to continue to be sold without self-
sealing valves. EPA is publishing this direct final rule to revise the 
regulatory text, so that persons in possession of small cans of 
refrigerant for use in MVAC without self-sealing valves that were 
manufactured or imported before January 1, 2018, can be assured that 
they will be able to sell off their existing inventories without 
disruption.
    This action will eliminate burden associated with regulatory 
uncertainty in this area. The Automotive Refrigeration Products 
Institute and the Auto Care Association informed EPA that the lack of 
clarity surrounding the status of small cans of refrigerant for use in 
MVAC without self-sealing valves that were manufactured or imported 
before the compliance date is already creating confusion. Unless 
resolved, this lack of clarity could unnecessarily influence sales of 
automotive refrigerant during 2017. This is because retailers may not 
want to stock large numbers of these small cans of refrigerant for use 
in MVAC unless they are given some assurance that they will be able to 
sell off any remaining inventory after January 1, 2018. There is also 
the concern that if clarity is not provided by January 1, 2018, 
retailers may feel compelled to manually pull cans without self-sealing 
valves from their shelves and return the cans to their supplier(s). 
This rule will eliminate the cost of that stranded inventory and also 
eliminate other non-quantified burdens associated with the removal of 
such cans from the market, such as the labor involved in segregating 
small cans with self-sealing valves from those without self-sealing 
valves and physically pulling those from shelves.

V. Statutes and Executive Orders Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2060-0256. These changes do not add information 
collection requirements beyond those currently required under the 
applicable regulations.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action clarifies that small cans of 
refrigerant for use in MVAC may be sold to persons who are not 
certified technicians even if they are not equipped with a self-sealing 
valve, so long as those small cans are manufactured or imported prior 
to January 1, 2018. We have therefore concluded that this action will 
have no net regulatory burden for all directly regulated small 
entities.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action corrects a potential conflict in the 
refrigerant management regulations as to whether or not small cans of 
refrigerant for use in MVAC could be sold to non-technicians if they 
were manufactured or imported prior to January 1, 2018, and do not have 
a self-sealing valve. This action clarifies that those small cans of 
refrigerant for use in MVAC may be sold to persons who are not 
certified technicians.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This action corrects a potential conflict in the 
refrigerant management regulations as to whether or not small cans of 
refrigerant for use in MVAC could be sold to non-technicians if they 
were manufactured or imported prior to January 1, 2018, and do not have 
a self-sealing valve. Thus, Executive Order 13175 does not apply to 
this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    This action does not affect the level of protection provided to 
human health or the environment. This action corrects a potential 
conflict in the refrigerant management regulations as to whether or not 
small cans of refrigerant for use in MVAC could be sold to non-
technicians if they were manufactured or imported prior to January 1, 
2018, and do not have a self-sealing valve. This action clarifies that 
those small cans of refrigerant for use in MVAC may be sold to persons 
who are not certified technicians. The documentation for this decision 
is contained in Docket No. EPA-HQ-OAR-2017-0213, where EPA's assessment 
of the underlying regulatory changes that led to this correction found 
no disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations and/or 
indigenous peoples.

K. Congressional Review Act (CRA)

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

List of Subjects in 40 CFR Part 82

    Environmental protection, Air pollution control, Chemicals, 
Reporting and recordkeeping requirements.

    Dated: September 21, 2017.
E. Scott Pruitt,
Administrator.

    For the reasons set forth in the preamble, the Environmental 
Protection Agency amends 40 CFR part 82 as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

    Authority:  42 U.S.C. 7414, 7601, 7671-7671q.

0
2. In Sec.  82.154, revise paragraph (c)(1)(ix) to read as follows:


Sec.  82.154  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (ix) The non-exempt substitute refrigerant is intended for use in 
an MVAC and is sold in a container designed to hold two pounds or less 
of refrigerant, has a unique fitting, and, if manufactured or imported 
on or after January 1, 2018, has a self-sealing valve that complies 
with the requirements of paragraph (c)(2) of this section.
* * * * *
[FR Doc. 2017-20840 Filed 9-27-17; 8:45 am]
 BILLING CODE 6560-50-P