[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]]
_______________________________________________________________________
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
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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.
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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
