Protection of Stratospheric Ozone: Extension of The Existing Reclamation Requirements

SUMMARY: Through this action EPA is amending the Clean Air Act Section

608 refrigerant recycling regulations to extend the effectiveness of

the refrigerant purity requirements of Sec. 82.154(g) and (h), which

are currently scheduled to expire on December 31, 1996, until EPA

adopts revised purity requirements. EPA initially extended these

requirements in response to requests from the air-conditioning and

refrigeration industry to avoid widespread contamination of the stock

of chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC)

refrigerants that could result from the lapse of the purity standard.

Such contamination would cause extensive damage to air-conditioning and

refrigeration equipment, release of refrigerants, and refrigerant

shortages with consequent price increases.

EPA proposed a more flexible approach to ensuring the purity of

refrigerants on February 29, 1996, and solicited public comment. EPA

received significant comments regarding a potential delegation of

authority and an unintentional creation of a monopoly. EPA believes

prior to adopting a more flexible approach EPA must further consider

these comments. EPA intends to issue a supplemental action that would

revise several aspects of the February 29, 1996 proposal.

To prevent any lapse in the purity standards, on November 1, 1996,

EPA proposed to extend the current reclamation requirements

indefinitely until EPA adopts revised requirements. Today EPA is

extending the current reclamation requirements. This continuation will

not result in any additional burden on the regulated community.

Moreover, the retention of the reclamation requirement will protect the

environment, public health, and consumers by ensuring that contaminated

refrigerants are not vented or charged into equipment.

EFFECTIVE DATE: January 1, 1997.

ADDRESSES: Comments and materials supporting this rulemaking are

contained in Public Docket No. A-92-01, Waterside Mall (Ground Floor)

Environmental Protection Agency, 401 M Street, SW., Washington, D.C.

20460 in room M-1500. Dockets may be inspected from 8:00 a.m. until

5:30 p.m., Monday through Friday. A reasonable fee may be charged for

copying docket materials.

FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation

Branch, Stratospheric Protection Division, Office of Atmospheric

Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,

Washington, D.C. 20460, (202) 233-9729. The Stratospheric Ozone

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

information.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in

the following outline:

I. Regulated Entities

II. Background and Notice of Proposed Rulemaking

III. Response to Comments

IV. Today's Action

V. Effective Date

VI. Summary of Supporting Analysis

A. Executive Order 12866

B. Unfunded Mandates Act

C. Paperwork Reduction Act

D. Regulatory Flexibility Analysis

VII. Submission to Congress and the General Accounting Office

I. Regulated Entities

Entities potentially regulated by this action are those that wish

to recover, recycle, reclaim, sell, or distribute in interstate

commerce refrigerants that contain chlorofluorocarbons (CFCs) and/or

hydrochlorofluorocarbons (HCFCs). Regulated categories and entities

include:

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Example of regulated

Category entities

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Industry.................................. Reclaimers.

Equipment manufacturers.

Air-conditioning and

refrigeration contractors

and technicians.

Owners and operators of

industrial process

refrigeration equipment.

Laboratories.

Plumbing, heating and

cooling contractors.

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

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that could potentially

be affected by this action. Other types of entities not listed in the

table could also be affected. To determine whether your company is

regulated by this action, you should carefully examine the

applicability criteria contained in Section 608 of the Clean Air

Amendments of 1990; discussed in regulations published on May 14, 1993

(59 FR 28660); and discussed below. If you have questions regarding the

applicability of this action to a particular entity, consult the person

listed in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Background and Notice of Proposed Rulemaking

Paragraphs 82.154 (g) and (h) of 40 CFR part 82, subpart F, set

requirements for sale of used refrigerant, mandating that it meet

certain purity standards. As discussed in the Notice of Proposed

Rulemaking (NPRM) issued November 1, 1996 (61 FR 56493), these

requirements will expire on December 31, 1996. EPA proposed extending

these requirements beyond the end of 1996.

EPA is in the process of considering whether it is appropriate to

promulgate new, more flexible, reclamation requirements based on

industry guidelines. To that end, EPA issued a separate NPRM on

February 29, 1996 (61 FR 7858). The February 29, 1996 NPRM was an

omnibus notice that addressed many aspects of 40 CFR Part 82, Subpart

F. Among the various issues raised in that NPRM was the adoption of a

more flexible approach to reclamation with the related adoption of

third-party certification for laboratories and reclaimers. Other issues

addressed in that NPRM include changes to the recordkeeping and

reporting requirements for technician certification programs, the

adoption of an updated industry standard, amending the definitions of

motor vehicle air-conditioning-like appliances and small appliances,

the adoption of formal revocation procedures for approved certification

programs, transfers of refrigerant between subsidiaries, and clarifying

the distinction between major and minor repairs. EPA has analyzed the

public comments concerning the February 29, 1996 NPRM, and will issue a

final rulemaking soon; however, EPA has decided not to complete

promulgation of all the proposed changes discussed in that NPRM as part

of one final package. The decision to delay action on specific issues

proposed in the February 29, 1996 NPRM and to extend the current

reclamation requirements was discussed in the November 1, 1996 NPRM (61

FR 56493).

III. Response to Comments

EPA requested and received nine comments regarding the November 1,

1996 NPRM. All the comments

[[Page 68507]]

supported EPA's proposed extension of the current requirements beyond

December 31, 1996.

Of these nine comments received, six commenters raised similar

points. These commenters stated that it is important to extend the

reclamation requirements for both environmental and consumer protection

needs. The commenters stated that the reclamation requirements ensure

that used refrigerant sold in the marketplace meets the ARI Standard

700 levels of purity. The commenters indicated that avoiding

contamination of the refrigerant supply is paramount. The commenters

highlighted concerns that a lapse in the requirements could lead to

widespread contamination of the stock of used CFC- and HCFC-

refrigerants leading to increased equipment failures and potential

venting of refrigerants. These commenters also indicated that EPA

should continue the evaluation of a more flexible approach to

reclamation and implement such an approach as soon as possible. EPA

agrees with these commenters.

EPA received one comment from a company that operates many older

air-conditioning and refrigeration systems. This commenter, a supporter

of the extension, indicated that contamination of refrigerant stock

could damage parts, leading to a shortage of replacement parts and

resulting in a consequent cost increases for replacement parts. EPA

understands this commenter's concerns for readily available, fairly

priced replacement parts.

While the last two commenters supported the proposed decision, they

requested that EPA adopt a more flexible approach within a short

timeframe. One commenter stated that their organization would continue

to support the use of the current reclamation requirements as an

interim measure and that EPA should adopt a more flexible approach with

due speed. The other commenter stated that there was no choice but to

support the extension because the alternative of permitting the

requirements to lapse would be worse. This commenter requested that EPA

set a specific deadline for the adoption of a more flexible reclamation

requirement and that this deadline should be no later than a date

within the next three calendar months. The commenter further stated

that EPA should do everything within its power to meet such a deadline.

EPA understands the concerns raised by this commenter. EPA had intended

to adopt a more flexible approach to reclamation before December 31,

1996, therefore, avoiding the need for today's action. However, as

discussed above and in the NPRM, central to the proposed adoption of a

more flexible approach to reclamation is the proposed adoption of

third-party certification programs for both laboratories and

reclaimers. Commenters submitting information regarding the February

29, 1996 NPRM identified several specific concerns regarding the

appropriateness of delegating various functions to third-parties and

whether EPA may unintentionally create a monopoly. These comments have

led to the need for additional research and consultation by EPA. EPA

did not propose in the November 1, 1996 NPRM any specific date to

sunset the reclamation requirements since such a date could occur prior

to the completion of EPA's analysis. Instead, EPA indicated that the

Agency would work to expedite the adoption of a more flexible approach

and would extend the current requirements only until such action is

completed.

EPA did not propose a date-certain sunset partly because EPA does

not believe a date-certain approach is necessary at this juncture. EPA

established sunsets for these requirements in the past based on EPA's

estimation of the time required for industry representatives to develop

an alternative to traditional reclamation that permits flexibility

without compromising the goals of environmental protection and the time

necessary for the Agency to adopt that approach. Initially, EPA

anticipated that the industry standard would be a recycling standard

similar to the standard used to recycle CFC-12 recovered from motor

vehicle air conditioners. However, the standard developed by industry,

known as Industry Recycling Guide -2 (IRG-2) is significantly different

from what EPA had initially envisioned. IRG-2 establishes a method for

contractors and technicians to evaluate used refrigerant based on the

history of that refrigerant, to use recycling devices where

appropriate, and to ultimately rely on the testing of representative

refrigerant samples by off-site laboratories prior to permitting the

refrigerant to change ownership. IRG-2 could not be adopted by EPA

without the further development of procedures for adequately testing

representative samples by capable laboratories. The need to develop

such a program and the concerns raised by commenters were not initially

anticipated by EPA. EPA also did not predict other factors that slowed

the rulemaking process, such as budgetary events beyond EPA's control.

These unforseen circumstances have led to today's action. While EPA

anticipates the adoption of the more flexible reclamation approach in

early 1997, EPA does not wish to ignore the possibility that other

unforseen circumstances could arise resulting in a further delay. If

such unforeseen circumstances did arise, it is likely that EPA would

pursue another extension, thus diverting resources from the more

important endeavor of ultimately replacing the current requirements

with a more flexible approach. Therefore, EPA did not propose and today

is not adding a sunset date.

IV. Today's Action

EPA is extending the effectiveness of the current reclamation

requirements until the Agency can adopt replacement requirements. It

was never EPA's intent to leave air-conditioning and refrigeration

equipment and refrigerant supplies unprotected by a purity standard,

but only to replace the existing standard with a more flexible standard

when that was developed. As discussed previously, EPA is currently

undertaking rulemaking to adopt a more flexible standard.

V. Effective Date

Today's action will be effective starting January 1, 1997. This

expedited effective date is necessary to avoid a lapse in the current

reclamation requirements. Section 553 of the Administrative Procedures

Act (APA) authorizes agencies to dispense with certain procedures for

rules when there exists ``good cause'' to do so. Given the lack of

burden upon affected parties, the need to ensure that no regulatory

lapse occurs, and in accordance with section 553(b), the Agency finds

that there is good cause to accelerate the effective date of this

rulemaking because to delay the effective date would be

``impracticable, unnecessary, or contrary to the public interest.''

The retention of the current reclamation requirements will protect

the environment, public health, and consumers by ensuring that

contaminated refrigerants are not vented or charged into equipment.

Therefore, the effective date for this rulemaking will be January 1,

1997.

VI. Summary of Supporting Analysis

A. Executive Order 12866

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

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

and therefore subject to OMB review and the requirements of the

Executive Order.

[[Page 68508]]

The Order defines ``significant'' regulatory action as one that is

likely to lead to a rule that may:

(1) Have an annual effect on the economy of $100 million or more,

or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined by OMB and EPA that this action to amend the

final rule is not a ``significant regulatory action'' under the terms

of Executive Order 12866 and is therefore not subject to OMB review

under the Executive Order.

B. Unfunded Mandates Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded

Mandates Act'') requires that the Agency prepare a budgetary impact

statement before promulgating a rule that includes a Federal mandate

that may result in expenditure by State, local, and tribal governments,

in aggregate, or by the private sector, of $100 million or more in any

one year. Section 203 requires the Agency to establish a plan for

obtaining input from and informing, educating, and advising any small

governments that may be significantly or uniquely affected by the rule.

Under section 205 of the Unfunded Mandates Act, the Agency must

identify and consider a reasonable number of regulatory alternatives

before promulgating a rule for which a budgetary impact statement must

be prepared. The Agency must select from those alternatives the least

costly, most cost-effective, or least burdensome alternative that

achieves the objectives of the rule, unless the Agency explains why

this alternative is not selected or the selection of this alternative

is inconsistent with law.

Because this rulemaking is estimated to result in the expenditure

by State, local, and tribal governments or private sector of less than

$100 million in any one year, the Agency has not prepared a budgetary

impact statement or specifically addressed the selection of the least

costly, most cost-effective, or least burdensome alternative. Because

small governments will not be significantly or uniquely affected by

this rule, the Agency is not required to develop a plan with regard to

small governments. As discussed in this preamble, this rule merely

extends the current reclamation requirements during consideration of a

more flexible approach that may result in reducing the burden of part

82 Subpart F of the Stratospheric Protection regulations on regulated

entities, including State, local, and tribal governments or private

sector entities.

C. Paperwork Reduction Act

There is no additional information collection requirements

associated with this rulemaking. Therefore, EPA has determined that the

Paperwork Reduction Act does not apply. The initial Sec. 608 final

rulemaking did address all recordkeeping associated with the

refrigerant purity provisions. An Information Collection Request (ICR)

document was prepared by EPA and approved by the Office of Management

and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et

seq. This ICR is contained in the public docket A-92-01.

D. Regulatory Flexibility Analysis

EPA has determined that it is not necessary to prepare a regulatory

flexibility analysis in connection with this final rule because it

continues existing requirements. EPA would like to clarify that there

was a misstatement in the NPRM regarding the potential impact that this

rule would have on small entities. This rule does not make any change

to the current regulatory situation. It does not provide relief or any

increase from current regulatory burdens. Thus the regulatory

flexibility analysis discussed in the initial final rule (May 14, 1996,

58 FR 28660) is still applicable.

VII. Submission To Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business

Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA submitted a

report containing this rule and other required information to the U.S.

Senate, the U.S. House of Representatives, and the Comptroller General

of the General Accounting Office prior to publication of the rule in

today's Federal Register. This rule is not a ``major rule'' as defined

by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 82

Environmental protection, Aerosols, Air pollution control,

Chlorofluorocarbons, Chemicals, Hydrochlorofluorocarbons, Stratospheric

ozone layer.

Dated: December 20, 1996.

Carol M. Browner,

Administrator.

Part 82, chapter I, title 40, of the Code of Federal Regulations,

is amended to read as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.154 is amended by revising paragraphs (g) and (h) to

read as follows:

Sec. 82.154 Prohibitions.

* * * * *

(g) No person may sell or offer for sale for use as a refrigerant

any class I or class II substance consisting wholly or in part of used

refrigerant unless:

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

at Sec. 82.152;

(2) The class I or class II substance was used only in an MVAC or

MVAC-like appliance and is to be used only in an MVAC or MVAC-like

appliance; or

(3) The class I or class II substance is contained in an appliance

that is sold or offered for sale together with the class I or class II

substance.

(h) No person may sell or offer for sale for use as a refrigerant

any class I or class II substance consisting wholly or in part of used

refrigerant unless:

(1) The class I or class II substance has been reclaimed by a

person who has been certified as a reclaimer pursuant to Sec. 82.164;

(2) The class I or class II substance was used only in an MVAC or

MVAC-like appliance and is to be used only in an MVAC or MVAC-like

appliance; or

(3) The class I or class II substance is contained in an appliance

that is sold or offered for sale together with the class I or class II

substance.

* * * * *

[FR Doc. 96-32969 Filed 12-26-96; 8:45 am]

BILLING CODE 6560-50-P