Protection of Stratospheric Ozone; Refrigerant Recycling; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: The Environmental Protection Agency (EPA) is amending the

rules on refrigerant recycling promulgated under section 608 of the

Clean Air Act to clarify the conditions under which technician

certification programs will be grandfathered, allowing technicians who

had participated in voluntary technician training and certification

programs prior to the publication of the rule to receive formal

certification. EPA is also amending the rule to clarify the scope of

the technician certification requirement and to provide a limited

exemption from certification requirements for apprentices.

EFFECTIVE DATE: October 28, 1994.

ADDRESSES: Materials relevant to the rulemaking are contained in Air

Docket No. A-92-01 at: Environmental Protection Agency, 401 M Street,

S.W., Washington, D.C. 20460. The Air and Radiation Docket and

Information Center is located in room M-1500, Waterside Mall (Ground

Floor) Environmental Protection Agency, 401 M Street, S.W., Washington,

D.C. 20460. Dockets may be inspected from 8:00 a.m. to 5:30 p.m.,

Monday through Friday. A reasonable fee may be charged for copying

docket materials.

FOR FURTHER INFORMATION CONTACT: Debbie Ottinger, Program

Implementation Branch, Stratospheric Protection Division, Office of

Atmospheric Programs, Office of Air and Radiation (6205-J), 401 M

Street, S.W., Washington, D.C. 20460 (202-233-9200). The Stratospheric

Ozone Information Hotline at 1-800-296-1996 can also be contacted for

further information.

SUPPLEMENTARY INFORMATION:

I. Background

Final regulations published on May 14, 1993 (58 FR 28660) establish

a recycling program for ozone-depleting refrigerants recovered during

the servicing and disposal of air-conditioning and refrigeration

equipment. The regulations require technicians to observe practices

that minimize release of refrigerant to the environment. To ensure that

technicians become knowledgeable of these requirements, Sec. 82.161 of

the final rule mandates that technicians be certified by passing a

test. For Type II, Type III, and Universal technicians, the test must

be a closed-book, proctored examination drawn from a bank of test

questions kept by the Environmental Protection Agency (EPA) and

administered in a secure environment by an EPA-approved certifying

program. For Type I technicians, a mail-in program is permitted.

Testing and training organizations can apply to EPA to become EPA-

approved technician certifiers under Sec. 82.161(c) by demonstrating

that they can ensure test security, provide an adequate number of

proctors during the examination, select questions randomly from the

appropriate sections of the test bank, and provide proof of

certification to technicians who pass the exams. Testing and training

organizations must also demonstrate that they grade objectively and

keep adequate records. The specific requirements of the program are

presented in Sec. 82.161 and appendix D of the final rule. To date, EPA

has authorized over 90 organizations as technician certifying

organizations.

II. This Action

A. Grandfathering

Under Sec. 82.161(g), organizations that seek approval as

certifying organizations can also apply to grandfather technicians who

received training and testing under programs established prior to

publication of the final rule in May 1993, which established the

approval process for certification programs. Specifically,

Sec. 82.161(g) states:

Persons seeking approval of a technician certification program

may also seek approval for technician certifications granted

previously under the program. Interested persons may submit to the

Administrator at the address in Sec. 82.160(a) verification that the

program met all of the standards of Sec. 82.161(c) and appendix D, *

* * except for some elements of the test subject material, in which

case the person must submit verification that supplementary

information on that material will be provided pursuant to appendix

D, section (j).

When EPA initially drafted the language requiring programs to meet

``all of the standards of Sec. 82.161(c) and appendix D,'' these

standards were considerably more general than those that were

ultimately incorporated into the rule. The proposal had discussed

possible requirements in broad terms. For instance, although the

proposal anticipated that tests would be proctored, it did not suggest

a specific ratio of proctors to examinees, such as the 1:50 ratio that

appeared in the final rule. Similarly, the proposal did not specify

whether tests would be open- or closed-book. Instead, the proposal

included general requirements that tests be proctored, that test

security measures be in place, and that tests be graded objectively.

EPA believed that many voluntary programs would meet these general

requirements.

In response to comments, the requirements for certifying

organizations grew more specific. EPA believed that increasing the

specificity of the standards strengthened the technician certification

program overall. However, EPA did not thoroughly reevaluate and revise

its grandfathering provision to reflect the new, detailed requirements.

Instead, the provision inappropriately continued to allow voluntary

programs to be grandfathered only if they meet all the requirements of

Sec. 82.161(c) and appendix D, with a limited exemption concerning test

subject material.

The Agency recognizes that if voluntary programs were held to each

of the detailed standards, no voluntary technician certification

program could be grandfathered. Appendix D contains the specific

requirements of the technician certification program. Voluntary

programs prior to the promulgation of the final rule could not have

complied with these requirements, as they were not yet in existence.

Section (a) (Test Preparation) of appendix D requires that ``[e]ach

certifying program must assemble tests by choosing a prescribed subset

from the EPA test bank.'' However, the test bank did not become

available until September 30, 1993. In addition, EPA requires programs

to certify technicians with Type I, Type II, or Type III

certifications, depending on the level of the test passed by the

technician. EPA developed these categories after the close of the

public comment period to the proposed rule. However, other logical

categorization systems are possible, and until EPA promulgated the

final rule, many technician certification organizations categorized

technician types differently. Furthermore, section (a) requires a

closed-book test, yet most testing organizations prior to the final

rule offered only open-book tests. Finally, appendix D defines the

ratio of technicians to proctors, and establishes recordkeeping and

reporting requirements, all requirements that organizations certainly

could not have complied with prior to the promulgation of the final

rule.

Nevertheless, many voluntary programs substantially complied with

most of the standards of appendix D, even though they used alternative

procedures to those eventually specified in appendix D. Thus, many

programs did proctor tests (at least the equivalent of Type II, Type

III, and Universal tests), ensure test security, objectively grade

tests, and keep records. Several programs also covered most of the

required subject matter in the core and at least some technical

sections, even when they did not establish the same categories in their

testing as were established in the final rule (Type I, II, etc.). Where

the content of their voluntary testing fell short of that required by

the final rule, programs expressed their willingness to provide

additional testing and training as needed, and the final rule provided

for this remedy.

EPA has always intended to grandfather these reasonably stringent

programs. The purposes of the technician certification requirement are

discussed fully in the preamble to the rule establishing the program

(58 FR 28660, May 14, 1993). A primary goal of the requirement is to

guarantee that technicians who handle refrigerants understand and

practice safe refrigerant recovery and recycling techniques. Proper

handling will minimize release of refrigerants to the atmosphere and

the accompanying environmental harm.

In promulgating the certification provision, EPA determined that

grandfathering reasonably stringent voluntary certification programs

would significantly further the goals of the certification requirement

in a number of ways. By training and testing technicians in recycling

refrigerants before the rule was promulgated (on May 14, 1993),

reasonably stringent voluntary programs prepared technicians to comply

with the prohibition on venting that became effective on July 1, 1992,

and probably significantly reduced refrigerant emissions. These

programs also served as an impetus for developing a mandatory program,

providing a model for that program. Indeed, EPA worked with several

voluntary programs to develop the requirements of the mandatory

program. In addition, many voluntary organizations provided questions

for the test bank, determining the scope of the training and the

current exam. Finally, EPA does not want to discourage future

participation in voluntary environmental training. Requiring repeat

testing for all technicians who voluntarily took adequate testing and

training could discourage people from participating in future voluntary

programs.

Any potential harm from grandfathering would arise from certifying

some technicians on the basis of their participation in testing

programs that unavoidably deviated from some of the specific

requirements in appendix D. However, EPA will only grandfather those

programs that substantially complied with most of the certification

standards, and therefore largely achieved the basic goal of the

certification requirement, to ensure that technicians understand proper

refrigerant handling practices and the importance of such practices. In

addition, a program can address any gaps in its coverage by providing

supplementary information. Given substantial compliance and

supplementary information, the marginal benefits derived from retesting

would be relatively small. Moreover, such benefits must be compared to

the burden of requiring retesting. Over 100,000 technicians

participated in voluntary programs. Retesting would require almost all

of these technicians to incur costs for time, travel and test

administration. In light of the significant benefits and small

potential harm expected from grandfathering reasonably stringent

voluntary programs, EPA is modifying the requirements for

grandfathering to ensure that an Agency drafting error does not

disqualify these programs outright.

To carry out this intent, EPA today is amending the grandfathering

provision of Sec. 82.161(g) as the Agency proposed in the August 15,

1994 Federal Register notice (59 FR 41968). This paragraph currently

states that ``[i]nterested persons may submit to the Administrator at

the address in Sec. 82.160(a) verification that the program met all of

the standards of Sec. 82.161(c) and appendix D, or verification that

the program met all of the standards of Sec. 82.161(c) and appendix D,

except for some elements of the test subject material, in which case

the person must submit verification that supplementary information will

be provided pursuant to appendix D, section (j).'' (emphasis added).

EPA is amending Sec. 82.161(g) to read ``Interested persons must submit

to the Administrator at the address in Sec. 82.160(a) verification that

the voluntary certification program substantially complied with most of

the standards of Sec. 82.161(c) and appendix D of subpart F. (emphasis

added). If the program did not test or train participants on some

elements of the test subject material, the person must submit

verification that supplementary information on the omitted material

will be provided pursuant to appendix D of subpart F, section (j).''

In reviewing requests to grandfather technicians, EPA will assess

the extent to which a program substantially complied with most of the

requirements in each paragraph of Sec. 82.161(c) and appendix D

(paragraph (a) of appendix D being test preparation, (b), proctoring,

(c), test security, etc.) and most of the basic concerns addressed by

those paragraphs, considering the information that was available to the

program at the time of its initial development. EPA believes that this

is reasonable given the limited information available to these programs

before the final rule was published and the question bank was released.

For example, the proposed rule published on December 10, 1992,

discussed the need for organizations to provide proctored tests under

conditions that ensured test security, but did not specify that one

proctor be provided for every 50 individuals taking the test as

specified in the final rule. Under the approach taken in this document,

voluntary programs that provided proctors, but did not necessarily

provide exactly one proctor for every 50 individuals taking the test,

would not be disqualified on that basis alone. EPA believes that the

modification of the final rule to replace ``met all'' with

``substantially complied with most'' allows EPA to review these

programs taking such circumstances into account.

Almost all commenters supported changing the language of

Sec. 82.161(g) to permit grandfathering of voluntary programs, although

one commenter opposed grandfathering. A few commenters only supported

grandfathering for the Type I level. Commenters who supported

grandfathering cited EPA's rationale for making the change to permit

it, stating that technicians and contractors in the air-conditioning

and refrigeration industry required education on the new recycling

requirements, and that voluntary programs fulfilled this need, probably

significantly reducing refrigerant emissions. These commenters stated

that any shortfalls in early testing and training could (and should) be

remedied through providing supplemental information. Commenters also

noted that failure to grandfather voluntary programs could discourage

future participation in voluntary environmental education programs.

The commenter who opposed grandfathering argued that the

certification testing being offered by new programs approved after the

rule was published is significantly more difficult than that offered by

one voluntary certification program. As discussed below, EPA plans to

evaluate voluntary certification programs on a case-by-case basis and

to consider the content of the programs' testing in its grandfathering

decisions. As discussed above, EPA will only grandfather voluntary

programs that substantially complied with most of the certification

standards and that send out any supplementary information that EPA

considers necessary. EPA believes that the benefits of grandfathering

such programs significantly outweigh the costs.

Three commenters supported grandfathering of voluntary programs

only to the Type I level. These commenters claimed that none of the

voluntary programs were as comprehensive or stringently administered as

new programs approved after the rule was published; therefore,

grandfathering of technicians who participated in these programs to the

Type II or Type III level would be dangerous to the environment and

unfair to technicians who worked hard to successfully complete new

programs. However, the commenters believed that grandfathering to the

Type I level was acceptable because of the smaller charge sizes and

lesser safety concerns associated with small appliances. One of the

commenters stated that EPA should not grandfather programs simply

because they offered an appropriate testing environment, but should

examine content of voluntary exams to ensure that those exams were

``reasonably similar'' to the exams now being used for certification.

This commenter argued that, for example, programs that did not test

participants on the final rule, including all of those offered before

publication of the final rule, should not be grandfathered even to Type

I unless participants took and passed a test drawn from the Core

section of the question bank.

The commenters also stated that requiring grandfathered technicians

to take further testing before granting them Type II or Type III

certification would not represent an undue burden. One of the

commenters expressed the opinion that the organizations that operated

voluntary programs should make any retesting an administratively simple

and accessible option, because they assumed this responsibility when

they made a conscious decision to offer testing before certification

requirements were finalized.

EPA agrees with these commenters that the content of voluntary

testing and training, along with the administrative criteria listed in

appendix D, must be considered in any grandfathering decision. EPA does

not intend to grandfather a voluntary program for a given Type if the

program did not include any test questions or training for that Type.

Indeed, voluntary programs differed significantly in their coverage of

the various Types. Some programs focussed exclusively on Type I, while

others covered Types I through III. EPA considers it appropriate to

evaluate these programs individually, rather than adopting an across-

the-board policy to grandfather them all to the same level.

EPA considers it appropriate to permit voluntary programs to

address gaps within the Types covered by their original testing and

training by providing additional materials to past participants. If a

program has substantially complied with the standards, the voluntary

certification should have largely met the educational purposes of

requiring certification. While there may be some areas that a voluntary

program did not cover, providing additional information should ensure

that technicians achieve an acceptable level of competency. Moreover,

requiring voluntary programs to have anticipated all of the topics

within a Type constitutes just as impossible a hurdle as requiring them

to have anticipated every administrative requirement in appendix D.

Even the original final rule published on May 14, 1994, recognized this

and permitted programs to be grandfathered as long as they ``submit

verification that supplementary information on that material will be

provided.''

Thus, voluntary programs that did not fully cover the requirements

of the final rule, for instance, will be permitted to address the

omission by developing supplementary materials on that topic,

submitting these materials to EPA for review and revision, and then

sending these materials to past participants. Past participants will be

required to sign a statement that they have read the new materials and

to return it to the voluntary program operator before receiving their

certification cards. EPA believes that this process will ensure that

supplementary materials are of acceptable quality and that past

participants read and learn them before being certified.

EPA disagrees with the assertion that retesting on a Type would not

represent an undue burden to technicians who participated in a

voluntary program that covered that Type. Although EPA strongly

believes that proctored testing in Types II and III is worthwhile for

technicians who have not already been tested on those Types, the Agency

believes that the costs of such testing outweigh its benefits for

technicians who have already been tested in the Types. Those costs

include time taken to travel to the test site and take the test, travel

costs, and the cost of the test itself. The differences between the

Type II and Type III tests being offered by new programs and those

offered by many voluntary programs are not significant enough to

warrant these additional investments. However, the Agency again

emphasizes that if Type II or Type III was not covered by a voluntary

program, then past participants in that program will have to take

proctored testing before they can be certified for that Type.

One commenter argued that EPA should require programs that operated

after the publication of the final rule (May 14, 1993) to have met

stricter standards than programs that operated before publication of

the final rule. This commenter stated that programs operating after

publication of the final rule, unlike programs operating earlier, knew

both the administrative and content requirements that would have to be

met by technician certification programs. The commenter claimed that

some programs ``enticed technicians to be certified through an

abridged, open-book testing methodology prior to October 15, 1994, with

promises of these substandard processes being grandfathered.'' The

commenter believed that rewarding these programs and the technicians

who participated in them by grandfathering the programs would be unfair

to programs and technicians who attempted to meet higher standards.

Although EPA will consider the efforts of voluntary programs to

update their testing content and procedures to conform to the

requirements of the final rule after May 14, 1993, EPA will not require

voluntary programs to have met all of those requirements to be

grandfathered. First, grandfathering voluntary programs that

substantially complied with the standards of Sec. 82.161 and appendix D

should further the environmental goals of requiring certification, even

if such programs did not fully update in conformity with the

requirements of the final rule. If a voluntary program was already

substantially complying with the requirements of Sec. 82.561 and

Appendix D before May 14, 1993, then changes to its administrative

practices after May 14, probably would not have had a significant

impact on the overall quality of the program. At the same time,

omissions from a program's training and testing can be addressed by

supplying past participants with supplementary materials that

participants must read before they receive their certification cards,

as discussed above. Omissions can be rectified in this manner

regardless of when the original training and testing occurred.

The process of developing and disseminating supplementary materials

also mitigates the unfairness perceived by the commenter; programs that

updated their testing and training more swiftly need not develop, and

their participants need not review, as much supplementary information

as programs that did not update their testing and training. In

addition, until September 30, 1993, voluntary programs continued to

provide the only source of training in refrigerant handling. EPA

believes that the environmental benefit of timely, reasonably stringent

training and testing outweighed any costs associated with programs'

failure to adhere to every requirement in the final rule.

Second, it was not possible for programs to fully comply with the

standards of the final rule until September 30, 1993. The bank of test

questions was not available to programs until EPA approved the first

set of programs, so programs could not have included these questions in

their testing before that date. Requiring voluntary programs to have

included such questions would automatically prevent all voluntary

programs from being grandfathered.

Third, programs were understandably reluctant to change their

procedures and materials given their uncertainty over when EPA would

announce the approval of the first set of technician certification

programs and thereby make the bank of test questions available. As

discussed below, the process of reviewing certification programs can

vary greatly in length, depending upon the completeness of initial

submissions and the speed with which programs respond to later

inquiries. Voluntary programs, therefore, could not be certain whether

the effort and expense of revising and reprinting old tests would be

justified, since such revised tests would become obsolete once the

program operator had access to the bank of test questions. The same

uncertainty surrounded efforts to develop and disseminate new

administrative procedures, since such procedures would also probably be

revised once programs were approved.

Finally, while EPA did not approve of programs advertising an

``easy'' alternative to a future, closed-book test, determining whether

each program that applies for grandfathering did or did not engage in

such advertising would be very difficult. It would be even harder for

EPA to determine whether advertising that did occur was a centrally

organized campaign or an isolated incident. Thus, EPA does not plan to

use reports of such advertising as a criterion in its grandfathering

decisions.

EPA will, however, consider requiring recertification of

grandfathered technicians after some period, perhaps two years, if

EPA's experience enforcing the rule indicates that their training was

not adequate. As noted in the final rule published on May 14, 1993, EPA

reserves the right to require recertification of any or all

technicians, if necessary.

Another commenter argued that EPA should grandfather only programs

that included a ``live'' instructor and should not grandfather programs

that offered testing without training. EPA will consider the training

and testing offered by programs in their entirety rather than requiring

a specific instruction technique. While a videotape cannot respond to

questions from technicians as a ``live'' instructor can, a thorough and

accurate videotape is preferable to an ill-informed instructor.

Moreover, if technicians have succeeded in passing a comprehensive,

difficult test without taking a special training course, EPA believes

that they have demonstrated their knowledge of proper and legal

techniques for refrigerant handling, which is the goal of technician

certification.

EPA is extending the November 14, 1994 deadline until May 15, 1994,

for those technicians who successfully completed a voluntary program

that applies for grandfathering no later than December 9, 1994. During

the extension period, those technicians who successfully completed a

voluntary program may continue to service, maintain, repair, and

dispose of appliances and may buy refrigerant using the certificates or

cards issued by the voluntary program. This additional time will allow

EPA to consider applications by voluntary programs for grandfathering

and will enable grandfathered voluntary programs to provide

supplementary information, if necessary, and proof of EPA-approved

certification to grandfathered technicians. To make their past

participants eligible for this extension, programs must apply (or have

already applied) within 30 days of publication of this amendment (1) to

be approved as a technician certification program under Sec. 82.161(c),

and (2) to grandfather technicians. This extension does not apply to

technicians who did not participate in any voluntary program, or who

participated in voluntary programs that have not applied and do not

apply within the set period. These technicians must still be certified

by November 14, 1994.

This extension provision is very similar to the one proposed. The

one difference between the proposed and final provisions is that the

proposed provision would have made the extension effective until six

months after publication of the final rule, and the final provision

makes the extension effective until May 15, 1995, six months after the

effective date of the technician certification requirement. EPA made

this change to establish a simple, memorable date for the expiration of

the extension. Because EPA expects to announce most of its

grandfathering decisions when the rule becomes effective, and because

EPA expects the rule to become effective before November 14, 1994,

technicians who successfully completed voluntary programs will still

have at least six months to complete any additional training or testing

necessary to become certified.

All commenters in favor of grandfathering supported providing an

extension of the November 14 deadline to past participants in voluntary

programs. Many commenters cited the reasons in the proposal, noting

that the November 14 deadline did not anticipate the delay caused by

this amendment to the regulations. The commenters agreed that it would

be counter-productive to force technicians who completed a voluntary

program to take additional testing simply because they do not know

whether or not their voluntary program will be grandfathered. However,

some commenters believed that this extension should be linked to the

date that EPA approves or disapproves grandfathering of the voluntary

program, rather than the date of publication of the final amendment or

any other specific date. This would ensure, these commenters argued,

that participants in these programs had sufficient time to complete

additional testing and/or training, if necessary. In addition, two

commenters argued that EPA should be required to complete review of

grandfathering applications within a specific period (one commenter

suggested 30 days). Finally, one commenter believed that voluntary

programs should be required to inform their past participants within a

specific period both whether or not the programs applied for

grandfathering and whether EPA approved or disapproved their

applications.

EPA agrees with the commenters that voluntary programs and/or their

past participants should have sufficient time to provide or obtain

additional training or testing before the certification requirements go

into effect for all technicians. Consequently, EPA has made a

considerable effort to review grandfathering applications in a timely

fashion. The Agency plans to announce the majority of its

grandfathering decisions when this rule is published or shortly

thereafter. EPA believes that this will leave voluntary programs and

their past participants enough time to provide any required

supplementary information and to complete any needed additional

training or testing before the general six-month extension expires,

making it unnecessary to issue separate, six-month extensions to each

program.

Moreover, the Agency considers a fixed, uniform deadline for

certification essential to effective compliance with and enforcement of

the sales restriction. The sales restriction requires that every

refrigeration wholesaler in the U.S. understand which certification

cards issued by approved programs and which credentials issued by

voluntary programs are valid for refrigerant purchase. If the

credentials issued by voluntary programs ``expired'' on different

dates, and if each expiration date were announced individually,

compliance with the sales restriction would become unacceptably

complicated for wholesalers.

EPA does not believe that imposing a deadline for review on itself

is either necessary or practical. As noted above, the Agency expects to

announce most, if not all, of its grandfathering decisions when this

amendment is published. The only voluntary programs on which EPA will

not have issued decisions will be those that have not yet applied at

all and those that have not completed the necessary information

requirements. The review process typically involves multiple contacts

between EPA and the applying program; the speed with which it is

completed depends as much upon the time taken by the program to respond

to inquiries and develop submissions as the time taken by EPA to review

them. Thus, even if it devotes all of its resources to the review

process, EPA cannot guarantee that reviews will be completed within a

given period.

EPA agrees, however, that voluntary programs should be required to

inform past participants of EPA's decision and to provide any required

supplementary information within a set period, so that technicians have

sufficient time to review the supplementary information or to obtain

additional training and testing if it is required. EPA is therefore

modifying the proposed amendment to require that (1) voluntary programs

that EPA has disapproved inform their past participants of EPA's

decision within 30 days of their disapproval, and (2) programs that EPA

has approved inform their past participants of EPA's decision and

provide any supplementary information within 60 days of their approval.

EPA believes that 30 days will provide sufficient time for disapproved

voluntary programs to generate and mail their notifications while

allowing technicians sufficient time (approximately five months, in

most cases) to complete a certification program approved after May 14,

1994.

EPA is allowing 60 days rather than 30 days for approved programs

because the Agency recognizes that printing and disseminating

supplementary information may take longer than printing and mailing

simple notifications. In addition, technicians who successfully

completed voluntary programs that are approved for grandfathering will

need less additional training and testing than technicians who

participated in voluntary programs that are not approved. Finally, EPA

is requiring programs approved for grandfathering to issue

certification cards to technicians within 60 days of the programs'

receipt of signed statements from the technicians indicating that the

technicians have read the supplementary information. Based on

discussions with voluntary programs, EPA believes that this will allow

sufficient time for voluntary programs to generate and mail the cards,

while allowing technicians enough time to read the supplementary

information.

EPA does not believe that this notification requirement will impose

an unreasonable burden on the voluntary programs that apply for

grandfathering. These voluntary programs have undertaken to certify

technicians in advance of the final regulations and have applied to EPA

for grandfathering. Given their voluntary assumption of responsibility,

it is reasonable to place on the voluntary programs the

responsibilities (1) to inform their participants whether their

applications for grandfathering were successful and (2) to send their

participants certification cards in a timely fashion.

However, EPA is not requiring voluntary programs to notify

participants whether or not the program has applied for grandfathering.

EPA believes that it is the responsibility of technicians and/or their

employers to obtain this information, and this information is (and has

been) readily available from both EPA and voluntary technician

certification programs. The Stratospheric Ozone Hotline has been

distributing a list of programs that have applied for grandfathering

since March, 1994. The list includes the following programs:

Amtrak Technical Training Center

Air Conditioning Contractors of America

CFC Reclamation and Recycling

Climate Control Institute, Inc.

Delaware County Community College

Environmental Training Group

Hartsog Trade School

Johnson Controls, Inc.

National Apartment Association

National Association of Power Engineers

People's Natural Gas

Refrigeration Environmental Protection Association

Refrigeration School, Inc.

Refrigeration Service Engineers Society

Rock Valley College

State of Alaska

State of Wisconsin, Department of Industry, Labor and Human Relations

Sears Product Services

Sequoia Institute

Tennessee Valley Technical Program

Texas Engineering Extension Service

United Association of Journeymen and Apprentices of the Plumbers and

Pipe Fitting Industry of the United States and Canada

VGI Training Division, Video General Inc.

York International

Since they first appeared on this list, six of the programs,

including Delaware County Community College, National Apartment

Association, People's Natural Gas, Rock Valley College, Sequoia

Institute, and Tennessee Valley Technical Program, have withdrawn their

applications for grandfathering. However, because these programs

appeared on the list, and because some of these programs withdrew

relatively recently, EPA will grant past participants in these programs

the six-month extension. These programs must inform their past

participants that they have withdrawn their request for grandfathering

by December 9, 1994, if they have not done so already, so that past

participants can obtain certification through a program approved after

May 14, 1993.

Additional programs may apply for grandfathering until December 9,

1994. EPA will provide wholesalers and other interested parties with a

revised list at that time, if necessary.

One commenter believed that the amendment should allow technicians

to continue to service equipment for six months from the promulgation

date, as long as the equipment owner or operator could demonstrate that

its technicians attended a voluntary certification program. This

commenter believed that the extension should apply even if the

voluntary program does not apply for grandfathering. EPA believes that

only technicians who participated in voluntary programs that apply for

grandfathering should be granted the six-month extension. Without an

application for grandfathering, EPA has no reason to assume that the

training might have been adequate to significantly meet the goals of

the technician certification program. The extension is premised on the

assumption that in many cases the voluntary programs have ensured

technician training adequate to meet the certification program goals,

as would be shown by substantial compliance with most of the standards

in Sec. 82.161 and appendix D. In such cases, EPA expects to approve

the grandfathering applications, and thus the extension will have

avoided the need to recertify technicians who eventually would be

grandfathered. Where the program has not applied for grandfathering,

however, EPA has no basis for believing either that there was a

reasonable possibility that the program significantly met the goals of

certification, or that the technician would not have to recertify at

the expiration of the extension period. EPA believes that bona fide

voluntary certification programs will make the effort to apply for

grandfathering, and that, in fact, most of those programs have applied

already.

In addition to the changes outlined above, in this amendment EPA is

clarifying how it will determine whether programs and individual

technicians will be grandfathered for a given Type. Whether a voluntary

certification program will be grandfathered for a Type will depend upon

the coverage by the program of the material in that Type. Whether an

individual technician will be grandfathered for a given Type will

depend upon (1) whether the technician successfully completed a

voluntary program that has been grandfathered for that Type, (2)

whether the technician successfully completed the portions of the

voluntary certification program that correspond to that Type, and (3)

whether the technician reads any supplementary information required by

the Administrator pursuant to Sec. 82.161(g)(1) and returns a signed

statement to that effect to the program. For clarity, EPA is also

adding a definition of ``voluntary certification program.'' EPA had

also proposed adding a definition of ``to be grandfathered'' but the

Agency has determined that this definition is unnecessary. The

regulations will simply refer to the ``approval'' of a voluntary

program or the ``certification'' of a technician under a voluntary

program.

To maintain consistency, EPA is also modifying appendix D, section

j. The revised section reads:

EPA will grandfather technicians who successfully completed

voluntary programs whose operators seek and receive EPA approval to

grandfather these technicians, in accordance with Sec. 82.161(g). As

part of this process, these certifying programs may be required to send

EPA-approved supplementary information to ensure the level of the

technicians' knowledge. Technicians will be required to read this

supplementary information as a condition of certification. The

certifying programs will also issue new identification cards meeting

the requirements specified above.

EPA is deleting the second paragraph of appendix (D)(j). The deleted

material reads:

Persons who are currently technicians must be certified by November

14, 1994. Technicians that participated in certification programs which

do not become EPA-approved certifying programs must either receive EPA-

approved supplemental information from the original testing

organization or be certified by taking a test given by an EPA-approved

certification organization by November 14, 1994.

This provision has been rendered redundant by the more specific

requirements in Sec. 82.161 (a) and (g). Also, technicians who

participated in programs that are not approved for grandfathering do

not have the option of becoming certified through receipt of EPA-

approved supplemental information.

B. Clarification of the Scope of the Technician Certification

Requirement

EPA is making several changes to clarify the scope of the

technician certification requirement. Four provisions related to the

scope of this requirement were somewhat inconsistent: the definitions

of ``technician,'' and ``opening,'' the provision at Sec. 82.154(l)

that prohibits anyone but certified technicians from opening or

disposing of appliances, and the technician certification requirements

at Sec. 82.161(a). In the August 15, 1994 notice, EPA proposed changes

intended to eliminate the inconsistencies. First, EPA proposed to

modify the definition of ``opening'' in order to distinguish it more

clearly from the definition of ``technician.'' In the proposed change,

``opening'' would have been defined as any service, maintenance, or

repair on an appliance that would (instead of ``could'') be reasonably

expected to release refrigerant from the appliance to the atmosphere

unless the refrigerant were previously recovered from the appliance.

Second, EPA proposed to modify the disposal provision of the definition

of ``technician'' to include only those parts of the disposal process

(e.g., evacuation of the equipment) that have the potential to release

refrigerant. Third, the proposal linked the definition of technician to

the certification requirement at Sec. 82.161 by replacing the term

``person'' in that requirement with the term ``technician.'' Fourth,

EPA proposed to eliminate the prohibition requiring technician

certification for ``opening'' appliances.

Commenters supported EPA's efforts to clarify the scope of the

technician certification requirement. In particular, commenters

supported EPA's efforts to exclude persons from the requirement who

performed activities that have very little chance of releasing

refrigerant, such as painting appliances or repairing empty appliances.

However, some commenters disagreed with the proposed scope, and others

believed that the proposed clarification either failed to remove all of

the ambiguities or introduced new ones.

The proposed clarifications are necessary to accomplish the

intended purposes of the provisions being revised. One important goal

of the refrigerant recycling provisions is to clearly identify those

conditions that will require evacuation of an appliance. Another

critical element of the provisions is to state the kinds of activities

that may be performed only by a certified technician. In addition, EPA

intends the regulations to clearly indicate the types of situations

that do not require evacuation and those activities that need not be

performed by a certified technician.

In their current form, the provisions do not clearly distinguish

maintenance, service, repair and disposal that should require

technician certification from maintenance, service, repair and disposal

that should require evacuation of the appliance or component to be

serviced. EPA believes that technician certification requirements

should be triggered by activities that carry a reasonable risk or

probability of refrigerant release. Where there is a reasonable risk of

release, certification ensures among other things that the technician

knows how to minimize that risk and understands the environmental

importance of avoiding a release. However, EPA believes that evacuation

requirements should be triggered by activities that would release

refrigerant unless the refrigerant were recovered previously.

Evacuation avoids such an otherwise inevitable release by emptying the

appliance of refrigerant prior to the contemplated activity. (While

some refrigerant will remain in an appliance even after the appliance

has been evacuated pursuant to Sec. 82.156, the Agency does not intend

to require evacuation to levels below those specified in Sec. 82.156.)

In the rule published May 14, 1993, EPA had linked both the

technician certification and evacuation requirements to the definition

of ``opening.'' Thus, ``technician'' was defined as ``any person who

performs maintenance, service, or repair that could reasonably be

expected to release'' refrigerant, and ``opening'' was defined as ``any

service, maintenance, or repair * * * that could reasonably be expected

to release refrigerant.'' Evacuation was required prior to opening, and

only technicians were allowed to open appliances. EPA had linked these

requirements believing that the same group of people who performed

service that required evacuation would be those who engaged in

activities that carry significant risk of refrigerant release.

In the proposed amendment, EPA recognized that there are some types

of service, such as charging appliances, that should not trigger

evacuation requirements but that carry a significant risk of

refrigerant release. On the other hand, there are other types of

service, such as replacement of compressors, that should trigger

evacuation requirements but that, once evacuation is complete, carry no

risk of refrigerant release. Moreover, there are some people who engage

only in one or the other of these types of maintenance, service,

repair, and disposal.

Accordingly, EPA proposed to detach the certification requirement

from ``opening'' appliances by deleting prohibition Sec. 82.154(l),

which had required certification for persons who open appliances. In

addition, EPA proposed to sharpen the distinction between the

definitions of ``opening'' and ``technician.'' Whereas both definitions

had referred to maintenance, service, or repair, ``that could''

[emphasis added] reasonably be ``expected to release refrigerant to the

atmosphere,'' the proposed definition of ``opening'' was changed to

``service, maintenance, or repair * * * that would [emphasis added] be

reasonably expected to release refrigerant to the atmosphere.'' The

evacuation requirements remained triggered by ``opening'' of

appliances. Finally, EPA tied the certification requirements at

Sec. 82.161 to the definition of technician, clarifying that

maintenance, service, repair, and disposal that has no reasonable

chance of releasing refrigerant would not require certification. In

this fashion, EPA attempted to convey that while technician

certification requirements would be triggered by activities carrying a

reasonable risk or probability of refrigerant release, evacuation

requirements would be triggered by activities that certainly would

release significant quantities of refrigerant unless the refrigerant

were recovered previously.

Commenters have stated, however, that changing the ``could'' in the

definition of ``opening'' to ``would'' does not sufficiently define the

types of maintenance, service, repair, and disposal that require

evacuation of the appliance or component to be serviced. In addition,

commenters asserted that, due to the ambiguity of the term ``could,''

the proposed definition of technician fails to sufficiently define the

types of maintenance, service, repair, and disposal that should require

technician certification. Commenters noted that there are a variety of

types of activities that might still be included in the certification

requirement although EPA did not intend certification to cover these

activities. Procedures such as painting appliances, tightening nuts and

bolts on fully charged appliances, and disposing evacuated appliances

``could'' release refrigerant. As commenters pointed out, a dropped

paint brush or wrench has a minute chance of rupturing a refrigerant

line, while tightening nuts and bolts could release refrigerant in the

unlikely event of bolt shearing or failure. In addition, commenters

noted that under the current definition, certification might be

required for maintenance, service, repair, and disposal of evacuated

appliances because small amounts of refrigerant would be released even

from evacuated appliances.

Commenters suggested a variety of alternative methods for

clarifying the scope of the evacuation and technician certification

requirements. Many commenters suggested that EPA explicitly list in the

definitions of ``opening'' and ``technician'' the activities that it

intended to include in or exclude from those definitions. For instance,

one commenter proposed explicitly excluding disposal of empty

appliances from the definition of ``technician.'' Another commenter

recommended adding a statement to the definition of ``opening'' that

read, ``opening does not include any activity intended by design to

close or tighten the system, including but not limited to tightening

nuts and bolts to reduce refrigerant leaks.'' A third commenter

suggested including ``adding or removing class I or class II

refrigerant from an appliance'' in the definition of ``opening.''

Commenters also suggested explicitly listing included or excluded

activities in other provisions of the regulation, such as the

evacuation requirements at Sec. 82.156(a) and the prohibition at

Sec. 82.154(l). (Some commenters did not appear to realize that EPA was

proposing to delete this prohibition.) One commenter suggested that EPA

add language to Sec. 82.156(a) clarifying that ``[a]dding refrigerant

does not, in itself, require evacuation.'' A second commenter proposed

excluding from Sec. 82.154(l) ``persons who repair, service, or

maintain appliances that do not contain refrigerant at the time work is

performed.'' A third commenter suggested adding a provision that would

prohibit anyone but certified technicians from adding or removing

refrigerant from appliances.

In addition, commenters recommended other changes to the definition

of ``opening.'' These commenters focussed on the phrase, ``would be

reasonably expected to release refrigerant,'' which they found

subjective and unclear. One commenter suggested substituting ``would

create a reasonable probability'' for ``would be reasonably expected.''

Two commenters recommended eliminating the concept of refrigerant

release from the definition altogether and defining ``opening'' as

``entry into the refrigeration circuit of an appliance.'' One of these

defined ``entry'' as ``any action that is intended by design to violate

the integrity of an enclosure that contains or would contain the

refrigerant.''

There are clearly a number of ways in which the scopes of the

certification and evacuation requirements could be clarified. To keep

the rule as straightforward as possible, EPA has chosen to place the

conditions that trigger these requirements in the definitions of

``technician'' and ``opening'' respectively and to use the definitions

alone to delineate the scopes. In addition, as proposed, EPA is

eliminating the prohibition at Sec. 82.154(l), which introduced

confusion by linking technician certification requirements to the

definition of ``opening.''

As discussed above, EPA believes that evacuation requirements

should be triggered by activities that would release refrigerant unless

the refrigerant were recovered previously. This includes any

maintenance, service, or repair that leaves the appliance open to the

atmosphere for more than an instant. It does not include connecting and

disconnecting hoses and gauges to and from the appliance to measure

pressures within the appliance and to charge refrigerant into or

recover refrigerant from the appliance. While these procedures may

release refrigerant, the releases are small and unavoidable. Moreover,

most of the procedures are fundamentally inconsistent with refrigerant

recovery; their purpose would be defeated by it.

In view of these considerations, EPA is establishing the following

definition of ``opening:''

Opening an appliance means any service, maintenance, or repair on

an appliance that would release class I or class II refrigerant from

the appliance to the atmosphere unless the refrigerant were recovered

previously from the appliance. Connecting and disconnecting hoses and

gauges to and from the appliance to measure pressures within the

appliance and to add refrigerant to or recover refrigerant from the

appliance shall not be considered ``opening.''

EPA believes that the revised definition of ``opening'' responds to

the concerns raised about the proposed definition and clarifies the

scope of activities subject to evacuation requirements. By replacing

``would be reasonably expected'' with ``would,'' the revision minimizes

any subjectivity that may have been in the proposed definition and

clarifies that the activities covered are those that would release, not

just could release, refrigerant if the refrigerant were not recovered

first. The revised definition also recognizes that there are some types

of maintenance, repair, and disposal whose purpose is not consistent

with refrigerant recovery and that therefore should not trigger

evacuation requirements.

EPA does not believe that ``entry into the refrigerant circuit'' is

sufficiently clear, in itself, to serve as the definition of

``opening.'' Even combined with the suggested definition for ``entry,''

the suggested definition of ``opening'' may be interpreted to include

more than the commenters evidently intended. One could argue, for

instance, that attaching hoses and gauges to an appliance could be

construed as an ``action that is intended by design to violate the

integrity of an enclosure that contains or would contain the

refrigerant.'' When the hose is attached, the previously self-contained

appliance has an opening in it, even if this opening leads only to a

charging cylinder or gauge instead of to the atmosphere. In fact, EPA

believes that the language in the proposed definition of ``entry'' is

more useful in the definition of ``technician'' than in the definition

of ``opening,'' and as discussed below, the Agency is using this

language in the former.

Some of the commenters suggested defining ``opening'' in a way that

would prevent ``opening'' from ever occurring if the evacuation

requirements of Sec. 82.156(a) were observed. One commenter, for

example, suggested that EPA revise the definition to read, ``Opening an

appliance means entry into the refrigerant circuit of an appliance

containing a class I or class II refrigerant, unless the refrigerant

were previously recovered from the appliance.'' Another commenter

recommended that EPA change the definition to read, ``Any repair,

service, or maintenance on an appliance that would create a reasonable

probability that the physical integrity of the refrigeration circuit

would be compromised and allow a release of refrigerant from the

appliance to the atmosphere. Recovery of the refrigerant from the

refrigeration circuit by a certified technician before beginning such

repairs, service, or maintenance shall create a rebuttable presumption

that there is no reasonable probability that a release of refrigerant

from the appliance would be allowed as a result thereof.''

EPA developed the term ``opening'' to describe the activities

before which refrigerant should be recovered. Neither the existing nor

the proposed definition of ``opening'' requires actual refrigerant

release; instead, the definitions refer to activities that would

(``could'' in the existing definition) release refrigerant if the

refrigerant were not previously recovered. The activities can take

place either while the appliance is fully charged or after it is

evacuated; they are considered ``opening'' either way. In this way, EPA

established a simple trigger that can be invoked in the evacuation

requirements at Sec. 82.156(a) as follows: ``all persons opening

appliances * * * must evacuate * * *.'' If ``opening'' never occurs,

then the evacuation requirements are never triggered. Alternative ways

of triggering evacuation requirements, such as stating that recovering

refrigerant establishes a rebuttable presumption that opening does not

occur, add unnecessary complication and confusion to the regulatory

structure.

As stated above, EPA believes that technician certification

requirements should be triggered by activities that carry a reasonable

risk or probability of refrigerant release. The Agency believes that

activities that carry a reasonable risk of refrigerant release are

those that are intended to move across the boundary of the refrigerant

circuit, or ``violate the integrity of the refrigerant circuit,'' as

one commenter put it, while refrigerant remains in the appliance. These

conclusions flow directly from the physical structure of refrigeration

systems, including enclosed refrigerant circuits. As long as the

refrigerant circuit is not violated, there is no risk of release

expected. However, the risk of release increases dramatically

immediately upon violation of the refrigerant circuit.

Violation of the refrigerant circuit includes attaching hoses and

gauges to add or remove refrigerant and to measure pressures within the

appliance. It also includes field assembly of pre-charged split

systems, which involves establishing a new connection between

previously separate refrigerant enclosures. It does not include

activities such as painting the appliance, re-wiring an external

electrical circuit, replacing insulation on a length of pipe, or

tightening nuts and bolts on the appliance (unless the nut or bolt is

obviously weakened and may be reasonably expected to shear and result

in refrigerant release). EPA agrees with commenters that the chances of

release during these activities are remote. EPA intended the phrase

``could be reasonably expected to release'' to prevent these remote

possibilities from triggering the certification requirements,

particularly since certification would not reduce the likelihood of

such accidents occurring.

Activities that carry a reasonable risk of refrigerant release also

exclude maintenance, service, repair, or disposal of appliances that

have already been evacuated pursuant to Sec. 82.156, unless the service

consists of recharging the appliance. As stated in the proposal, EPA

does not believe that individuals who service, maintain, repair, or

dispose of only empty appliances need to be certified, since releases

have already been minimized to the extent possible through evacuation.

While maintenance, service, or repair on the empty appliance could

conceivably have an impact on future releases, particularly if

performed incorrectly, technician certification does not, and cannot,

address every aspect of repair that could lead to such releases. Thus,

requiring persons who repair empty appliances to be certified would not

significantly reduce the likelihood of such releases. However,

requiring certification for the individual who recharges the appliances

probably will significantly reduce the likelihood of such releases,

because EPA's bank of test questions emphasizes the need to test

appliances for leaks before recharging them. By performing such

testing, the individual who recharges the appliance will be able to

detect and rectify many of the problems that would lead to subsequent

emissions from the appliance.

Just as EPA considers certification important for persons

recharging appliances, the Agency considers certification important for

persons who determine whether or not appliances have been evacuated

adequately to be opened. However, the revised definition of technician,

without changes elsewhere in the rule, might permit uncertified persons

to make this determination in one instance. Specifically, the revised

definition excludes individuals who move refrigerant within an

appliance (e.g., into a receiver) and who thereby evacuate a component

to be serviced. The revised definition also excludes individuals who

open evacuated appliances or components. While EPA does not believe

that either of these activities requires certification in itself, EPA

recognizes that when they are performed in sequence by uncertified

technicians, there is a risk that the appliance will be opened before

it has been properly evacuated pursuant to Sec. 82.154(a). Thus, EPA is

inserting a sentence into Sec. 82.154(a) that will require verification

of evacuation by certified technicians. Sec. 82.156(a) is amended to

read:

(a) Effective July 13, 1993, all persons opening appliances except

for MVACs for maintenance, service, or repair must evacuate the

refrigerant in either the entire unit or the part to be serviced (if

the latter can be isolated) to a system receiver or a recovery or

recycling machine certified pursuant to Sec. 82.158. All persons

disposing of appliances, except for small appliances, MVACs, and MVAC-

like appliances must evacuate the refrigerant in the entire unit to a

recovery or recycling machine certified pursuant to Sec. 82.158.

Effective December 9, 1994, certified technicians must verify that the

applicable level of evacuation has been reached in the appliance or the

part before it is opened.

To make the definition of technician as clear as possible, EPA is

explicitly listing activities that do or do not have a reasonable

probability of releasing refrigerant in the definition of technician.

The revised definition reads as follows:

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.

Technician also means any person who performs disposal of appliances,

except for small appliances, MVACs, and MVAC-like appliances, that

could be reasonably expected to release class I or class II

refrigerants from the appliances into the atmosphere. Performing

maintenance, service, repair, or disposal could be reasonably expected

to release refrigerants only if the activity is reasonably expected to

violate the integrity of the refrigerant circuit. Activities reasonably

expected to violate the integrity of the refrigerant circuit include

activities such as attaching and detaching hoses and gauges to and from

the appliance to add or remove refrigerant or measure pressure and

adding refrigerant to and removing refrigerant from the appliance.

Activities such as painting the appliance, re-wiring an external

electrical circuit, replacing insulation on a length of pipe, or

tightening nuts and bolts on the appliance are not reasonably expected

to violate the integrity of the refrigerant circuit. Performing

maintenance, service, repair, or disposal of appliances that have been

evacuated pursuant to Sec. 82.156 could not be reasonably expected to

release refrigerants from the appliance unless the maintenance,

service, or repair consists of adding refrigerant to the appliance.

Technician includes but is not limited to installers, contractor

employees, in-house service personnel, and in some cases, owners.

EPA is also adding the following definition of ``refrigerant

circuit:''

Refrigerant circuit means the parts of an appliance that are

normally connected to each other (or are separated only by internal

valves) and are designed to contain refrigerant.

There was some disagreement among the commenters regarding the

kinds of maintenance, service, repair, and disposal that should require

technician certification. Two commenters supported requiring

certification of individuals who add refrigerant to appliances;

however, one commenter opposed this requirement. This commenter argued

that requiring certification for persons who add refrigerant to

industrial process refrigeration was ``extremely burdensome,'' since

even transferring refrigerant from one portion of an industrial process

refrigeration appliance to another (such as an internal receiver) could

be construed as ``adding refrigerant.'' In addition, the commenter

stated that ``the regulated community was lead (sic) to believe that

the simple addition of refrigerant to a system * * * did not have to be

certified.'' The commenter also stated that EPA staff told him in March

of 1994 that persons who charge equipment do not need to be certified.

Finally, the commenter stated that if EPA intended to require

certification of persons who add refrigerant to industrial process

refrigeration systems, EPA should establish a new certification

category for such persons and should permit such persons an additional

six months to become certified, since EPA was reversing its earlier

position regarding the need for such persons to be certified.

EPA does not believe that requiring certification for persons who

add refrigerant to industrial process refrigeration systems is unduly

burdensome. First, transferring refrigerant from one part of a

refrigeration circuit to another (including receivers that are

separated from the operating circuit only by internal valves) will not

require certification under the new definition of technician. The

definition excludes activities that do not ``violate the integrity of

the refrigerant circuit.'' Thus, technicians who only transfer

refrigerant within industrial process units will not have to be

certified. Second, at least three other users of industrial process

refrigeration commented on the rule, and none of them expressed concern

that certification of persons adding refrigerant to industrial process

refrigeration systems would be ``burdensome.'' In fact, one of these

commenters recommended that EPA add a provision to the regulation to

specifically prohibit anyone but certified technicians from adding or

removing refrigerant from appliances. Third, EPA believes that

certification of persons adding refrigerant to industrial process

systems (as opposed to transferring refrigerant within such systems) is

justified because any disturbance of a refrigeration circuit has the

potential to release significant quantities of refrigerant, for

instance if a charging hose is not properly attached to a servicing

aperture or if a valve is not resealed after charging.

To support the position that persons charging appliances should not

be certified, the commenter also cited language from the preamble to

the May 14, 1993 rule. This stated that persons who charge appliances

during manufacture and transfer refrigerant from container to container

did not have to be certified. The commenter implied that these

activities were equivalent to charging appliances during servicing.

However, in the same discussion cited by the commenter, EPA repeatedly

distinguished between these activities and servicing of appliances. EPA

believes that transferring refrigerant between containers and charging

during manufacture are in general less complex, more routinized, and in

the case of charging during manufacture, more automated than charging

appliances in the field. Thus, while EPA did not include appliance

manufacturing personnel in its definition of ``technician,'' it did

include appliance ``installers,'' whose only contact with refrigerant

may be during the charging process.

EPA recognizes that there was some confusion within the regulated

community regarding the scope of the certification requirement. In

fact, EPA undertook this rulemaking in part to eliminate such

confusion. However, EPA does not believe that the confusion justifies

granting persons charging appliances their own category of

certification or an additional six months to meet certification

requirements. As noted above, only one commenter objected to the

clarification that persons adding refrigerant must be certified; other

commenters from the same sector supported this requirement.

One commenter supported EPA's clarification that installers of

appliances must be certified. This commenter stated that the

applicability of the certification requirement to installers had not

been clear in the final rule published on May 14, 1993, but that the

proposed definition corrected this problem. The commenter requested

that EPA ``continue to be consistent on this matter by prohibiting the

sale of pre-charged split systems and components to `do-it-yourself'

installers such as homeowners.''

Precharged components are parts of appliances that are sold with

refrigerant already contained in them. Pre-charged split systems are

air conditioners that are typically sold as two parts, one of which

contains the evaporator, the other, the condenser. Both parts also

contain refrigerant and must be joined at the installation site for the

air conditioner to function.

As noted above, EPA agrees with the commenter that installers of

pre-charged split systems and components should be certified, because

joining the two halves of a split system during installation involves

violation of the refrigerant circuit. Moreover, EPA agrees that sales

of pre-charged split systems and other pre-charged appliance components

should be limited to certified technicians to ensure that only

certified technicians install them. The sales restriction provision

(Sec. 82.154(n) in the rule published on May 14, 1994) contains an

exception permitting the sale to uncertified persons of refrigerant

contained in an appliance. While individual pre-charged components are

clearly not ``appliances,'' pre-charged split systems, although not

fully assembled, arguably could be considered ``appliances.'' Thus, the

exception might be interpreted to permit the sale of pre-charged split

systems to uncertified persons. EPA is revising this exception to

remove this ambiguity and clarify that it allows the sale to

uncertified persons of refrigerant contained in appliances only with

fully assembled refrigerant circuits. This will prohibit the sale of

split systems to anyone but certified technicians.

While this clarification of the sales restriction follows logically

from the clarifications to the scope of the technician certification

requirement that were proposed, the regulated community should have a

reasonable period of time to conform to the revised sales restriction.

The old exception to the sales restriction for refrigerant contained in

appliances will therefore remain in effect until 60 days after

publication of this final rule.

Another commenter argued that persons performing maintenance,

service, or repair that are required during emergencies or that release

only ``de minimis'' quantities of refrigerant should not need to be

certified. This commenter stated that in an emergency, prompt action is

often necessary in order to protect lives, property, and the

environment. If a system were to develop a large leak during the night

shift, for example, the entire refrigerant charge could be lost,

necessitating shutdown of the process, before a certified technician

was able to respond to a special call. All that might be required to

repair the leak is tightening the nuts holding a flange together, an

operation that would not be performed any better by a certified

technician than by other plant personnel. The commenter stated that if

EPA did not allow an exception to the certification requirements for

emergencies, the commenter's staff may have no option but to ``sit idly

as entire charges of refrigerant escape.'' The commenter recommended

that EPA establish the following exception to the certification

requirements:

Nothing in this subpart is intended to prohibit servicing or

maintenance activities performed by a person not certified as a

technician pursuant to Sec. 82.161, if the person is qualified by

training and/or experience to perform the task safely and effectively,

where: * * * (2) The servicing or maintenance activity is necessary due

to an emergency; no technician certified for that type of appliance

pursuant to Sec. 82.161 is available; and postponing the activity is

likely to result in significant releases of refrigerant, significant

hazards to health, safety or the environment, or substantial property

damage.

EPA recognizes that emergency situations may arise where a

certified technician is not immediately available to perform needed

repairs. However, EPA is reluctant to establish a special exception for

emergencies for a number of reasons. First, EPA has clarified above

that many procedures that would reduce leakage, such as tightening the

nuts on the flange in the commenter's example, do not require

certification because they are not expected to violate the integrity of

the refrigeration circuit. Second, EPA does not consider the

certification requirement overly burdensome. If operators of air-

conditioning and refrigeration equipment believe that there is a

significant chance that an emergency leak may occur, they can ensure

that a certified technician is available on-site or on-call during

every shift. This certainly provides a credible alternative to sitting

``idly as entire charges of refrigerant escape.'' Third, the language

suggested by the commenter for the exception includes several

undefined, subjective terms, including ``qualified,'' ``emergency,''

``available,'' ``significant'' (applied both to ``releases'' and

``hazards''), and ``substantial.'' Even if EPA considered the exception

necessary, defining these terms would be very difficult. Consequently,

the exception would be difficult to apply and enforce, and absent a

clearly demonstrated need for such a provision, EPA is reluctant to

adopt this exception.

The commenter also requested an exception from certification

requirements for persons performing maintenance, service, or repair

that release only ``de minimis'' quantities of refrigerant and that do

not require the use of recycling or recovery equipment. The commenter

argued that plant operators would be fully qualified to perform minor

repairs such as changing a gauge, if the maintenance does not involve

evacuating the appliance and any resulting losses of refrigerant are de

minimis. According to the commenter, such operators are already

familiar with procedures such as closing valves to isolate high-

pressure materials and removing and installing gauges; these procedures

apply to much of the equipment in industrial facilities in addition to

refrigeration equipment. Thus, workers who are not refrigeration

technicians would be able to perform these tasks with no greater loss

of refrigerant than a certified technician would experience. The

commenter claimed that if technicians were required to be certified to

perform these procedures, the commenter's training costs would rise by

a factor of ten, based on the need to have at least two certified

technicians on-site (in case one went on vacation) for four or five

shifts per day. The commenter recommended that EPA adopt an exemption

for activities releasing ``de minimis'' quantities of refrigerant very

similar to the exemption recommended for emergencies.

Again, EPA is reluctant to establish an exemption based upon

subjective terms such as ``qualified'' and ``de minimis,'' absent a

clearly demonstrated need for such a provision. EPA is especially

reluctant to adopt a provision that might invite uncertified

technicians to speculate whether releases would or would not be ``de

minimis.'' While uncertified technicians may be sufficiently

``qualified by training or experience'' to make an appropriate

determination of a repair that would produce only de minimis releases

and to complete the repair with minimal release, EPA has no assurance

that this will be the case. The purpose of technician certification is

to provide this assurance. If technicians are indeed ``qualified by

training or experience'' to violate the integrity of a refrigerant

circuit, then they should be able to pass the certification test

without extensive or expensive additional training.

Moreover, EPA believes that the commenter's method for estimating

increased training expenditures exaggerates these expenditures. For

instance, rather than certifying nine additional persons per plant, the

commenter could defer certain types of maintenance for less than 24

hours until a certified technician was on shift, or could arrange to

have a certified technician on-call during night shifts or during

vacations of a shift's usual certified technician.

C. Limited Exemption From Certification Requirements for Apprentices

As was proposed, EPA is amending the rule to clarify that

apprentices who meet certain requirements are exempt from the

certification requirement for two years. A person would be considered

an apprentice if he or she (1) were currently registered as an

apprentice in service, maintenance, repair, or disposal of appliances

with the U.S. Department of Labor's Bureau of Apprenticeship and

Training (or a State Apprenticeship Council recognized by the Bureau),

and (2) had been registered as an apprentice for less than two years.

An apprentice would not need to be certified as long as he or she were

closely and continuously supervised by a certified technician while

performing any maintenance, service, repair, or disposal that could

reasonably be expected to release refrigerant from appliances into the

atmosphere. However, uncertified apprentices would not be able to

purchase refrigerant after November 14, 1994. This provision clearly

would not permit uncertified technicians who were not in a training

program to perform, under a certified supervisor, service, maintenance,

repair, or disposal that could reasonably be expected to release

refrigerant from appliances into the atmosphere.

EPA believes the apprenticeship exemption conforms with the goals

of requiring certification. In establishing this exemption, EPA

recognizes that field training programs in air conditioning and

refrigeration provide a legitimate and valuable alternative or addition

to classroom training. This exemption will allow bona fide trainees to

gain field experience that will help them to obtain certification.

Apprentices with such experience should better understand and apply the

information on which certification tests them.

Limiting this exemption to registered apprentices under direct

supervision and with no more than two years experience ensures that the

exemption does not undercut the environmental protection goals of

certification. Limiting the exemption to apprentice programs helps to

ensure that supervision by certified technicians is available. In

addition, the provision specifically requires close and continual

supervision for the exemption to apply. Supervision should ensure that

the apprentice follows environmentally safe practices. Moreover, the

two-year time limit provides adequate time for the apprentice to gain

useful field experience and seek certification, but narrowly bounds the

period of any remaining environmental risk.

Most commenters supported an exemption from certification

requirements for apprentices. However, many commenters believed that

the exemption should be expanded to include persons who were not

registered as apprentices with the Bureau of Apprenticeship and

Training. Some commenters also believed that the exemption should be

lengthened beyond two years. One commenter opposed the exemption.

Some commenters arguing for expansion of the exemption believed

that it should also apply to students in classrooms. EPA wishes to

clarify that the current rule already exempts students in vocational

schools, community colleges, and university engineering programs from

technician certification requirements, because work that is performed

on appliances in classrooms or teaching laboratories strictly for

educational purposes is not considered maintenance, service, or repair.

EPA issued an applicability determination containing this conclusion on

March 18, 1994 (Number 20). To the extent that prison training programs

involve work that is strictly educational, students in those programs

are also exempt from certification requirements.

Other commenters arguing for expansion of the exemption believed

that it should also apply to trainees who work in the field but who are

not registered with the Bureau of Apprenticeship and Training. One of

these commenters noted that DOL-registered apprenticeship programs tend

to be concentrated in the northeast and in heavily unionized areas, and

that trainees in other areas may not use such programs as a means to

learn the trade. This commenter believed that trainees should be

permitted to submit an application to EPA to defer certification for up

to two years, during which period a ``learner's permit'' could be

issued to the trainee. Another commenter stated that many private

sector contractors are discouraged from committing to formal, four-year

apprenticeship programs by the Bureau's recordkeeping requirements and

approval process. According to this commenter, prospective trainees

often share contractors' reluctance to commit to a four-year program,

preferring to be paid by competency level instead of by years in the

program. The commenter believed that the requirement that trainees be

supervised by certified technicians would prevent journeymen from

masquerading as trainees, since it is expensive to send two workers to

a site when one is sufficient. Both commenters believed that trainees

should be supervised by certified technicians.

EPA recognizes that some trainees in air-conditioning and

refrigeration maintenance, service, and repair are not currently

registered with the Bureau of Apprenticeship and Training (or a

recognized State Apprenticeship Council). However, EPA believes that

third-party registration of apprentices and apprenticeship programs is

critical to ensuring that only bona fide apprentices take advantage of

the apprenticeship exemption. The requirement that apprentices be

supervised by certified technicians may discourage some technicians

from misrepresenting themselves as apprentices, but does not replace

the requirement that the apprentice be registered with the Bureau of

Apprenticeship and Training. This is because the supervision

requirement is more difficult to enforce than a requirement that

uncertified apprentices be registered with the Bureau. The suggested

approach that EPA register apprentices and issue two-year learner's

permits would demand more resources to implement and enforce than are

justified by the exemption.

The apprenticeship exemption is practicable from an enforcement and

administration perspective only if it can be linked to an existing

registration system, and the only existing, nation-wide registration

system that EPA is aware of (or that commenters mentioned) is that

operated by the Bureau of Apprenticeship and Training. In discussions

with EPA, the Department of Labor has emphasized that the Bureau

registers any program that meets its requirements, including both union

and non-union programs throughout the U.S. EPA considers compliance

with these requirements a reasonable condition for granting field

training programs the privilege of exempting their participants from

the technician certification requirements.

Two commenters believed that EPA should extend the apprenticeship

exemption from two years to three to five years to better match the

length of typical apprenticeships. These commenters stated that

extending the exemption would permit apprentices to thoroughly learn

proper and legal refrigerant handling techniques. However, other

commenters believed that the two-year term was appropriate or

acceptable. One trainer noted that the end of the second year of

training was the logical point at which a trainee would be prepared for

certification. EPA agrees that a two-year exemption provides sufficient

opportunity for trainees to become ready to pass the certification

test. While beneficial, further training is not essential to

certification. Also, as noted above, strictly limiting the time period

for the apprenticeship exemption constrains the period of any possible

heightened environmental risk.

One commenter believed that there should be no exemption for

apprentices. This commenter argued that delaying the certification

requirement could lead to ``a nonchalant attitude to safe refrigerant

handling'' among apprentices. In addition, the commenter claimed that

close supervision of apprentices by certified technicians is not always

feasible, because a single journeyman may supervise several apprentices

at once, at different locations. Another commenter argued that

apprentices should be required to be certified in the Core Type, which

focuses on environmental and safety issues, because passage of this

section of the test does not require a working knowledge of the trade.

EPA does not believe that establishing the two-year apprenticeship

exemption from the certification requirement would lead apprentices to

develop a cavalier attitude toward safety. Safety and environmental

training can and should begin as soon as an apprentice begins his or

her training in air conditioning and refrigeration. Also, one commenter

noted that their program provides classroom training for certification,

but they believe on-the-job training is necessary to teach the proper

procedures; this emphasizes the importance of allowing safety and

environmental procedures to be taught in a hands-on setting. In

addition, after the certification requirement goes into effect,

technicians learning proper refrigerant handling will have the

additional incentive of realizing that they must take and pass a test

on this topic after two years. For the above reasons, EPA does not

believe that certification in Core Type would provide sufficient

environmental benefits to justify the burden of requiring apprentices

to undergo the certification process in two separate steps.

Regarding the ability of journeymen to closely supervise

apprentices, EPA emphasizes that if close supervision is not possible,

then unsupervised apprentices must not be permitted to perform

maintenance, service, repair, or disposal that could release

refrigerant from the appliance to the environment. However,

unsupervised apprentices may perform maintenance, service, repair, or

disposal that could not be reasonably expected to release refrigerant,

such as repair of evacuated appliances or electrical work.\1\

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\1\EPA is aware that there are other federal and state

requirements for proper supervision, as one commenter noted, and the

Agency does not intend to provide any kind of exemption from such

requirements.

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D. Miscellaneous Corrections and Response to Comments

1. Correction to Definition of ``Recover''

EPA is correcting a typographical error in the definition of

``recover.'' As discussed in the preamble to the May 14, 1993, final

rule (58 FR 28671), EPA had intended to adopt the definition of

``recover'' developed by the American Society of Heating,

Refrigeration, and Air-Conditioning Engineers (ASHRAE). The ASHRAE

definition reads, ``to remove refrigerant in any condition from a

system and store it in an external container without necessarily

testing or processing it in any way'' (ASHRAE Guideline 3-1990).

However, EPA inadvertently omitted the phrase ``and store it in an

external container'' from the definition adopted in the final rule. EPA

is therefore revising and clarifying the definition by restoring this

phrase to it.

2. Correction to Prohibition Sec. 82.154(g)

EPA is also correcting a typographical error in prohibition

Sec. 82.154(g). In the direct final regulation published on August 19,

1994, this prohibition incorrectly cited the definition of

``reclaimed'' at Sec. 82.152(q). The prohibition indicated that the

definition was found at Sec. 82.152(g). With the addition of the

definition of ``apprentice,'' the definition of ``reclaim'' will now

found be at Sec. 82.152(r), and EPA is revising prohibition

Sec. 82.154(g) to reflect this change.

3. Correction to Required Practice Sec. 82.156(e)

EPA is also restoring a phrase that was inadvertently omitted from

Sec. 82.156(e). This provision states, ``Refrigerant may be returned to

the appliance from which it is recovered or to another appliance owned

by the same person without being recycled or reclaimed, unless the

appliance is an MVAC-like appliance.'' EPA intended to except MVACs as

well as MVAC-like appliances from this provision, which might otherwise

be interpreted to supersede the recycling requirements of the section

609 refrigerant recycling rule published on July 14, 1992. EPA has

always intended the section 609 regulation to govern the servicing of

MVACs. Thus, EPA is revising the provision to read, ``Refrigerant may

be returned to the appliance from which it is recovered or to another

appliance owned by the same person without being recycled or reclaimed,

unless the appliance is an MVAC or MVAC-like appliance.''

4. Correction to Reclaimer Certification Provisions

In the direct final rule published on August 19, 1994, EPA revised

the reclaimer certification provisions at Sec. 82.164 to reflect EPA's

adoption of the updated ARI 700-1993 industry standard for reclaimed

refrigerant. As discussed in the preamble to the direct final rule (59

FR 42951), the revised standard differs from its predecessor, ARI 700-

1988, in three main respects: (1) ARI 700-1993 includes eleven

additional refrigerants, (2) ARI 700-1993 doubles the permissible water

levels in liquid phase R-11 and R-113, and (3) where ARI 700-1988

allowed 0.5 as the maximum percentage by weight of ``other

refrigerants,'' ARI 700-1993 allows 0.50 as the maximum percentage by

weight of ``all other organic impurities, including other

refrigerants.''

Also as noted in the direct final rule, EPA made the change to the

reclaimer certification provisions to maintain consistency between

these provisions and the definition of reclaim. The revised provisions

were intended to apply to reclaimers who became certified for the first

time after October 18, 1994, the effective date of the direct final

rule. EPA did not intend to require refrigerant reclaimers who had

already been certified to become certified again. However, certified

reclaimers have pointed out that the revised provisions could be

interpreted to require recertification.

EPA considers such recertification unnecessary. As stated in the

preamble to the final rule, the goal of reclaimer certification is to

ensure that reclaimers are ``fully aware of the regulations regarding

reclaimed refrigerant'' (58 FR 28700). Certified reclaimers have

already demonstrated, through their original certifications, that they

are aware of most of the regulations regarding reclaimed refrigerant,

including the basic requirements to purify and analyze the refrigerant,

to limit emissions to 1.5 percent of the refrigerant reclaimed, and to

dispose of wastes from the reclamation process in accordance with all

applicable laws and regulations. The only requirements of which they

may not be aware are the changes to the ARI 700 standard enumerated

above. Any failure to accommodate these changes, while undesirable, is

not likely to have a significant adverse environmental or economic

impact.\2\ In fact, one of the changes represents a relaxation of the

ARI 700-1988 standard.

---------------------------------------------------------------------------

\2\The one possible exception to this generalization is the

broadening of the scope of the standard to include 11 additional

refrigerants. If a new refrigerant was not reclaimed because the

reclaimer did not know the purity standards for that refrigerant,

the dirty refrigerant could harm air-conditioning and refrigeration

equipment in which it was subsequently used. However, the 11

refrigerants added to the standard currently make up only a small

fraction of the refrigerant that is reclaimed. Moreover, EPA

believes that most certified reclaimers, when faced with a

refrigerant whose purity standards they do not know, are likely to

make an effort to discover these purity standards in order to retain

their customers.

---------------------------------------------------------------------------

Moreover, based on information submitted by certified reclaimers

and the Air-Conditioning and Refrigeration Institute (the industry

standard-setting group that developed ARI 700-1988 and -1993), EPA

believes that most certified reclaimers either are aware or can be made

aware of the new standard without recertifying. For instance, many

reclaimers either participated in the development of ARI 700-1993

standard themselves or work with analytical laboratories that

participated in the development of the standard. In addition, EPA plans

to distribute copies of the direct final regulation, which includes the

updated standard, to all certified reclaimers.

Finally, EPA will be undertaking a rulemaking in the near future to

address refrigerant purity and transfer issues generally. EPA will be

considering changes to the reclaimer certification provisions at that

time. This will give the Agency an opportunity to revisit the

recertification issue, if necessary.

Thus, in order to clarify that certified refrigerant reclaimers

need not recertify, EPA is adding a sentence to the reclaimer

certification provisions that states ``Persons who certified under

Sec. 82.164 before October 18, 1994, need not recertify under this

section.''

5. Comments Outside the Scope of This Rulemaking

EPA received some comments that related to issues outside the scope

of this rulemaking. One commenter advocated requiring certification of

persons who dispose of small appliances. This commenter argued that

disposers might not only release refrigerants, violating Clean Air Act

requirements, but could be ``liable as cogenerators'' under other

environmental statutes. EPA did not intend to request comment on

whether disposers should be certified in the proposed rule published

August 15, 1994; the part of the proposed definition of technician that

excluded disposers of small appliances was identical to that in the

final rule published May 14, 1993. The rationale for this exclusion may

be found at 58 FR 28705.

The same commenter recommended that all certification programs that

conform to Sec. 82.161 be eligible for state required continuing

education credits for licensing. Although EPA believes that this may be

a good idea, eligibility for state continuing education credits is

determined by the states, not EPA.

One commenter stated that EPA should amend the rule to permit

transfers of used, unreclaimed refrigerant among subsidiaries of the

same company. This issue is outside the scope of this rulemaking.

However, EPA plans to undertake a rulemaking in the near future that

will address refrigerant purity and transfer issues. EPA will take the

comment into consideration at that time.

III. Summary of Supporting Analysis

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether this regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to 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

this Executive Order.

It has been determined by OMB and EPA that this amendment to 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. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that

Federal agencies examine the impacts of their regulations on small

entities. Under 5 U.S.C. 604(a), whenever an agency is required to

publish a general notice of proposed rulemaking, it must prepare and

make available for public comment an initial regulatory flexibility

analysis (RFA). Such an analysis is not required if the head of an

agency certifies that a rule will not have a significant economic

impact on a substantial number of small entities, pursuant to 5 U.S.C.

605(b).

EPA believes that any impact that this amendment will have on the

regulated community will serve only to provide relief from otherwise

applicable regulations, and will therefore limit the negative economic

impact associated with the regulations previously promulgated under

Section 608. An examination of the impacts on small entities was

discussed in the final rule (58 FR 28660). That final rule assessed the

impact the rule may have on small entities. A separate regulatory

impact analysis accompanied the final rule and is contained in Docket

A-92-01. I certify that this amendment to the refrigerant recycling

rule will not have any additional negative economic impacts on any

small entities.

C. Paperwork Reduction Act

Any information collection requirements in a rule must be submitted

for approval to the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no additional

informational collection requirements are required by this amendment,

EPA has determined that the Paperwork Reduction Act does not apply to

this rulemaking and no new Information Collection Request document has

been prepared.

IV. Effective Date and Public Participation

This amendment is effective upon signature by the Administrator.

This expedited effective date is necessary to effectuate the provision

of the amendment extending the November 14, 1994 deadline for

certification of technicians that successfully completed voluntary

certification programs. The provisions regarding grandfathering do not

place any significant burdens on affected parties prior to thirty days

after publication, although programs that are disapproved for

grandfathering will have to notify their participants within thirty

days of EPA's disapproval of their application. The provision acts to

allow grandfathering of voluntary certification programs previously

barred under the regulations. The clarification of the scope of the

technician requirements also should not place any burden on affected

parties. The provision clarifies the scope of the activities covered by

the certification and evacuation requirements. This relieves persons

performing activities that might have been previously covered by the

requirements from complying with the requirements. The apprenticeship

exemption is similar. Given the lack of burden upon affected parties

and the need to grant an immediate exemption from the November 14, 1994

deadline, the Agency finds good cause for expediting the effective date

of the rule. EPA believes that this is consistent with 5 U.S.C.

553(d)(1) and (3).

Three provisions of this rule are being issued without notice and

comment. The first provision corrects the typographical error in

Sec. 82.154(g) mistakenly citing the definition of ``reclaimed'' as

Sec. 82.152(g) instead of Sec. 82.152(q). The error was introduced in

the direct final rule of August 19, 1994 (59 FR 42950). The context of

the citation makes it clear that this is an erroneous citation, thus

raising no need for public notice of its correction. The Agency

believes that this circumstance provides good cause to find public

notice of this amendment unnecessary under sections 307(d) and

553(a)(3)(B).

The second provision adds MVACs to the exclusion of MVAC-like

appliances from Sec. 82.156(e). That section allows refrigerant to be

returned to the appliance from which it is recovered or another

appliance owned by the same person without being recycled or reclaimed.

Applying Sec. 82.156(e) to allow the return of refrigerant to MVACs

without being recycled or reclaimed would directly conflict with the

requirements for ``properly using'' equipment for servicing MVACs under

section 609 of the Clean Air Act, as amended and EPA's implementing

regulations. See Sec. 82.30(e). This conflict was the reason that MVAC-

like equipment was excluded from Sec. 82.156(e) in the May 1993 final

rule (59 FR 28708). The rationale applies even more strongly to MVACs

themselves, which were erroneously omitted from the exclusion. This is

a minor correction that merely eliminates the conflict between the two

provisions and any resulting confusion over which provision governs.

This correction does no more than clarify the regulations to be

consistent with the section 609 regulations and the current general

understanding throughout the industry. These circumstances provide good

cause for the Agency to find public notice of this amendment

unnecessary under sections 307(d) and 553(a)(3)(B).

The third provision clarifies the Agency's position on

certification of reclaimers under Sec. 82.164. In the August 19, 1994

direct final rule (59 FR 42950), EPA updated the refrigerant purity

standards in accordance with the most recent industry standards, and

set a new deadline of October 18, 1994 for reclaimers to be certified

under these standards. The Agency intended this change to require

reclaimers to certify under the new, rather than the old, standard, but

only for those reclaimers that certified for the first time after the

October 1994 effective date. It did not intend to require

recertification of already certified reclaimers.

The deadline for certification under the new standard has already

passed, and all reclaimers that have not recertified could be

considered technically out of compliance. This makes it important for

the Agency to clarify the coverage of the rule expediently, and makes

the delay of a notice and comment rulemaking procedure contrary to the

public interest. The Agency finds that these circumstances provide good

cause under sections 307(d) and 553(a)(3)(B) to proceed with this

rulemaking without public notice.

V. Judicial Review

Under Section 307(b)(1) of the Act, EPA finds that these

regulations are of national applicability. Accordingly, judicial review

of this action is available only by the filing of a petition for review

in the United States Court of Appeals for the District of Columbia

Circuit within sixty days of publication of this action in the Federal

Register. Under Section 307(b)(2), the requirements of this rule may

not be challenged later in judicial proceedings brought to enforce

those requirements.

List of Subjects in 40 CFR Part 82

Environmental protection, Administrative practice and procedure,

Air pollution control, Chemicals, Chlorofluorocarbons,

Hydrochlorofluorocarbons, Recovery and recycle, Reporting and

recordkeeping requirements, Stratospheric ozone layer.

Dated: October 28, 1994.

Carol M. Browner,

Administrator.

Title 40, Code of Federal Regulations, part 82, 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 82.152 is amended by redesignating paragraphs (u)

through (y) as (w) through (aa), redesignating paragraphs (b) through

(t) as paragraphs (c) through (u), revising newly designated paragraphs

(o), (s), and (z), and by adding new paragraphs (b), (v), and (bb) to

read as follows:

Sec. 82.152 Definitions.

* * * * *

(b) Apprentice means any person who is currently registered as an

apprentice in service, maintenance, repair, or disposal of appliances

with the U.S. Department of Labor's Bureau of Apprenticeship and

Training (or a State Apprenticeship Council recognized by the Bureau of

Apprenticeship and Training). If more than two years have elapsed since

the person first registered as an apprentice with the Bureau of

Apprenticeship and Training (or a State Apprenticeship Council

recognized by the Bureau of Apprenticeship and Training), the person

shall not be considered an apprentice.

* * * * *

(o) Opening an appliance means any service, maintenance, or repair

on an appliance that would release class I or class II refrigerant from

the appliance to the atmosphere unless the refrigerant were recovered

previously from the appliance. Connecting and disconnecting hoses and

gauges to and from the appliance to measure pressures within the

appliance and to add refrigerant to or recover refrigerant from the

appliance shall not be considered ``opening.''

* * * * *

(s) Recover refrigerant means to remove refrigerant in any

condition from an appliance and to store it in an external container

without necessarily testing or processing it in any way.

* * * * *

(v) Refrigerant circuit means the parts of an appliance that are

normally connected to each other (or are separated only by internal

valves) and are designed to contain refrigerant.

* * * * *

(z) 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.

Technician also means any person who performs disposal of appliances,

except for small appliances, MVACs, and MVAC-like appliances, that

could be reasonably expected to release class I or class II

refrigerants from the appliances into the atmosphere. Performing

maintenance, service, repair, or disposal could be reasonably expected

to release refrigerants only if the activity is reasonably expected to

violate the integrity of the refrigerant circuit. Activities reasonably

expected to violate the integrity of the refrigerant circuit include

activities such as attaching and detaching hoses and gauges to and from

the appliance to add or remove refrigerant or to measure pressure and

adding refrigerant to and removing refrigerant from the appliance.

Activities such as painting the appliance, re-wiring an external

electrical circuit, replacing insulation on a length of pipe, or

tightening nuts and bolts on the appliance are not reasonably expected

to violate the integrity of the refrigerant circuit. Performing

maintenance, service, repair, or disposal of appliances that have been

evacuated pursuant to Sec. 82.156 could not be reasonably expected to

release refrigerants from the appliance unless the maintenance,

service, or repair consists of adding refrigerant to the appliance.

Technician includes but is not limited to installers, contractor

employees, in-house service personnel, and in some cases, owners.

* * * * *

(bb) Voluntary certification program means a technician testing

program operated by a person before that person obtained approval of a

technician certification program pursuant to Sec. 82.161(c).

Sec. 82.154 [Amended]

3. Section 82.154 is amended by revising paragraph (g)(1); by

removing paragraph (l); by redesignating paragraphs (m) through (o) as

(l) through (n) respectively; by redesignating newly designated

paragraphs (m)(2) through (m)(6) as (m)(3) through (m)(7) respectively;

by adding paragraphs (m)(2) and (m)(8); and by revising paragraphs

(m)(6) and (m)(7) to read as follows:

Sec. 82.154 Prohibitions.

* * * * *

(g) * * *

(1) The class I or class II substance has been reclaimed as defined

at Sec. 82.152(r);

* * * * *

(m) * * *

(2) The buyer has successfully completed a voluntary certification

program requesting approval under Sec. 82.161(g) by December 9, 1994.

This paragraph (m)(2) expires on May 15, 1995.

* * * * *

(6) The refrigerant is contained in an appliance, and after January

9, 1995, the refrigerant is contained in an appliance with a fully

assembled refrigerant circuit;

(7) The refrigerant is charged into an appliance by a certified

technician or an apprentice during maintenance, service, or repair; or

(8) The refrigerant is charged into an appliance by a technician

who successfully completed a voluntary certification program requesting

approval under Sec. 82.161(g) by December 9, 1994. This paragraph

(m)(8) expires on May 15, 1995.

4. Section 82.156 is amended by revising paragraph (a) introductory

text and by revising paragraphs (a)(1)(i), (a)(2)(i) introductory text,

and (e) to read as follows:

Sec. 82.156 Required practices.

(a) Effective July 13, 1993, all persons disposing of appliances,

except for small appliances, MVACs, and MVAC-like appliances must

evacuate the refrigerant in the entire unit to a recovery or recycling

machine certified pursuant to Sec. 82.158. All persons opening

appliances except for MVACs for maintenance, service, or repair must

evacuate the refrigerant in either the entire unit or the part to be

serviced (if the latter can be isolated) to a system receiver or a

recovery or recycling machine certified pursuant to Sec. 82.158.

Effective January 9, 1995, certified technicians must verify that the

applicable level of evacuation has been reached in the appliance or the

part before it is opened.

(1) * * *

(i) Evacuation of the appliance to the atmosphere is not to be

performed after completion of the maintenance, service, or repair, and

the maintenance, service, or repair is not major as defined at

Sec. 82.152(k); or

* * * * *

(2)(i) If evacuation of the appliance to the atmosphere is not to

be performed after completion of the maintenance, service, or repair,

and if the maintenance, service, or repair is not major as defined at

Sec. 82.152(k), the appliance must:

* * * * *

(e) Refrigerant may be returned to the appliance from which it is

recovered or to another appliance owned by the same person without

being recycled or reclaimed, unless the appliance is an MVAC or MVAC-

like appliance.

* * * * *

5. Section 82.161 is amended by revising paragraph (a) introductory

text; by removing the word ``Persons'' and adding in its place

``Technicians'' in paragraphs (a)(2) through (a)(5); by revising

paragraph (a)(1), by revising paragraph (g); and by adding paragraph

(a)(6) to read as follows:

Sec. 82.161 Technician certification.

(a) Effective November 14, 1994, technicians, except technicians

who successfully completed voluntary certification programs that apply

for approval under Sec. 82.161(g) by December 9, 1994, must be

certified by an approved technician certification program under the

requirements of this paragraph (a). Effective May 15, 1995, all

technicians must be certified by an approved technician certification

program under the requirements of this paragraph (a).

(1) Technicians who maintain, service, or repair small appliances

as defined in Sec. 82.152(x) must be properly certified as Type I

technicians.

* * * * *

(6) Apprentices are exempt from this requirement provided the

apprentice is closely and continually supervised by a certified

technician while performing any maintenance, service, repair, or

disposal that could reasonably be expected to release refrigerant from

appliances into the environment. The supervising certified technician

is responsible for ensuring that the apprentice complies with this

subpart.

* * * * *

(g)(1) Any person seeking approval of a technician certification

program may also seek approval to certify technicians who successfully

completed a voluntary certification program operated previously by that

person. Interested persons must submit to the Administrator at the

address in Sec. 82.160(a) verification that the voluntary certification

program substantially complied with most of the standards of

Sec. 82.161(c) and appendix D of subpart F of this part. If the program

did not test or train participants on some elements of the test subject

material, the person must submit supplementary information on the

omitted material to the Administrator for approval and verify that the

approved information will be provided to technicians pursuant to

section j of appendix D of subpart F of this part. In this case, the

person may not issue a certification card to a technician until he or

she has received a signed statement from the technician indicating that

the technician has read the supplementary information. Approval may be

granted for Type I, Type II, or Type III certification, or some

combination of these, depending upon the coverage in the voluntary

certification program of the information in each Type. In order to have

their voluntary programs considered for approval, persons must submit

applications both for approval as a technician certification program

and for approval as a voluntary program by December 9, 1994.

(2)(i) Persons who are approved to certify technicians who

successfully completed their voluntary programs pursuant to

Sec. 82.161(g)(1) must:

(A) Notify technicians who successfully completed their voluntary

programs of the Administrator's decision within 60 days of that

decision;

(B) Send any supplementary materials required pursuant to

Sec. 82.161(g)(1) to technicians who successfully completed their

voluntary programs within 60 days of the Administrator's decision; and

(C) Send certification cards to technicians who successfully

completed their voluntary programs within 60 days of receipt of signed

statements from the technicians indicating that the technicians have

read the supplementary information.

(ii) Persons who are disapproved to certify technicians who

successfully completed their voluntary programs pursuant to

Sec. 82.161(g)(1) must notify technicians who successfully completed

their voluntary programs of the Administrator's decision within 30 days

of that decision.

(iii) Persons who withdraw applications for voluntary program

approval submitted pursuant to Sec. 82.161(g)(1) must inform

technicians who successfully completed their voluntary programs of the

withdrawal by the later of 30 days after the withdrawal or December 9,

1994.

(3) Technicians who successfully completed voluntary certification

programs may receive certification in a given Type through that program

only if:

(i) The voluntary certification program successfully completed by

the technician is approved for that Type pursuant to Sec. 82.161(g)(1);

(ii) The technician successfully completed the portions of the

voluntary certification program that correspond to that Type; and

(iii) The technician reads any supplementary materials required by

the Administrator pursuant to Sec. 82.161(g)(1) and section j of

appendix D of subpart F of this part, and returns the signed statement

required by Sec. 82.161(g)(1).

* * * * *

6. Section 82.164 is amended by revising the introductory text to

read as follows:

Sec. 82.164 Reclaimer certification.

Effective October 18, 1994, all persons reclaiming used refrigerant

for sale to a new owner, except for persons who properly certified

under this section prior to October 18, 1994, must certify to the

Administrator that such person will:

* * * * *

7. Appendix D to subpart F is amended by revising section j to read

as follows:

Appendix D to Part 82 Subpart F--Standards for Becoming a Certifying

Program for Technicians

* * * * *

j. Grandfathering

EPA will grandfather technicians who successfully completed

voluntary programs whose operators seek and receive EPA approval to

grandfather these technicians, in accordance with Sec. 82.161(g). As

part of this process, these certifying programs may be required to send

EPA-approved supplementary information to ensure the level of the

technicians' knowledge. Technicians will be required to read this

supplementary information as a condition of certification. The

certifying programs will also issue new identification cards meeting

the requirements specified above.

* * * * *

[FR Doc. 94-27532; Filed 11-9-94; 8:45 am]

BILLING CODE 6560-50-P