Protection of Stratospheric Ozone: Refrigerant Management Regulations for Small Cans of Motor Vehicle Refrigerant |
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E. Scott Pruitt
Environmental Protection Agency
28 September 2017
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Rules and Regulations]
[Pages 45202-45205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20840]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2017-0213; FRL-9968-68-OAR]
RIN 2060-AT43
Protection of Stratospheric Ozone: Refrigerant Management
Regulations for Small Cans of Motor Vehicle Refrigerant
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to correct an editing
oversight that led to a potential conflict in a prior rulemaking as to
whether or not containers holding two pounds or less of non-exempt
substitute refrigerants for use in motor vehicle air conditioning that
are not equipped with a self-sealing valve can be sold to persons that
are not certified technicians, provided those small cans were
manufactured or imported prior to January 1, 2018. This action
clarifies that those small cans may continue to be sold to persons that
are not certified as technicians under sections 608 or 609 of the Clean
Air Act.
DATES: This rule is effective on December 27, 2017 without further
notice, unless EPA receives adverse comment by October 30, 2017. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2017-0213, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Sara Kemme by regular mail: U.S.
Environmental Protection Agency, Stratospheric Protection Division
(6205T), 1200 Pennsylvania Avenue NW., Washington, DC 20460; by
telephone: (202) 566-0511; or by email: kemme.sara@epa.gov.
SUPPLEMENTARY INFORMATION
I. Why is EPA using a direct final rule?
EPA is publishing this direct final rule without a prior proposed
rule because we view this as a noncontroversial action and anticipate
no adverse comment. This rule makes a minor change in regulatory text,
which is intended to resolve a potential conflict in the current
regulatory text and to ensure that the regulatory text conforms to the
EPA's intention when finalizing the regulatory text at issue. However,
in the ``Proposed Rules'' section of today's Federal Register, we are
publishing a separate document that will serve as the proposed rule to
make this revision to the regulatory text if adverse comments are
received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. In this action, EPA is not making, and is not
seeking comment on, any changes to the regulations at 40 CFR part 82,
subpart F other than the revision discussed in this notice. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. In that case, we would address
all public comments in any subsequent final rule based on the proposed
rule. If no adverse comment is received by October 30, 2017, this
direct final rule will be effective on December 27, 2017 without
further notice and no further action will be taken on the proposed
rule.
II. Does this action apply to me?
Categories and entities potentially affected by this action include
entities that distribute or sell small cans of refrigerant for use in
motor vehicle air conditioning (MVAC). Regulated entities include, but
are not limited to, manufacturers and distributors of small cans of
refrigerant (NAICS codes 325120, 441310, 447110) such as automotive
parts and accessories stores and industrial gas manufacturers. This
list is not intended to be exhaustive, but rather to provide a guide
for readers
[[Page 45203]]
regarding entities likely to be regulated by this action. To determine
whether your facility, company, business, or organization could be
regulated by this action, you should carefully examine the regulations
at 40 CFR part 82, subpart F. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
III. What should I consider as I prepare my comments for EPA?
A. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI). In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
B. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
IV. What action is the agency taking?
Section 608 of the Clean Air Act (CAA) bears the title ``National
Recycling and Emission Reduction Program.'' Under the structure of
section 608, this program has three main components. First, section
608(a) requires EPA to establish standards and requirements regarding
use and disposal of class I and II substances, including a
comprehensive refrigerant management program to limit emissions of
ozone-depleting refrigerants. The CAA directs EPA to include
regulations that reduce the use and emissions of class I and II
substances to the lowest achievable level and that maximize the
recapture and recycling of such substances. The second component,
section 608(b), requires that the regulations issued pursuant to
subsection (a) contain requirements for the safe disposal of class I
and class II substances. The third component, section 608(c), prohibits
the knowing venting, release, or disposal of ozone-depleting
refrigerants and their substitutes during the maintenance, service,
repair, or disposal of air-conditioning and refrigeration appliances or
industrial process refrigeration.
EPA first issued regulations under section 608 of the CAA on May
14, 1993 (58 FR 28660), to establish the national refrigerant
management program for ozone-depleting refrigerants recovered during
the maintenance, service, repair, and disposal of air-conditioning and
refrigeration appliances. These regulations were intended to
substantially reduce the use and emissions of ozone-depleting
refrigerants. EPA revised these regulations through subsequent
rulemakings published on August 19, 1994 (59 FR 42950), November 9,
1994 (59 FR 55912), August 8, 1995 (60 FR 40420), July 24, 2003 (68 FR
43786), March 12, 2004 (69 FR 11946), January 11, 2005 (70 FR 1972),
May 23, 2014 (79 FR 29682), and April 10, 2015 (80 FR 19453). For a
more detailed summary of the history of EPA's Refrigerant Management
Program see the discussion in the most recent update to these
regulations at 81 FR 82272, 82275 (Nov. 18, 2016).
On November 9, 2015, EPA proposed the most recent updates to the
refrigerant management regulations under section 608 of the CAA (80 FR
69458). Among other things, EPA proposed to extend the sales
restriction to non-exempt substitute refrigerants with an exception for
small cans of refrigerant for use in MVAC. That is, the proposed
revisions would have restricted the sale of non-exempt substitute
refrigerants to certified technicians, with an exception for small cans
(two pounds or less) of non-exempt substitute refrigerant for the
servicing of MVACs \1\ if the cans had a self-sealing valve. EPA
requested comments on several aspects of this proposal including a
scenario that would have included a sell-through provision for all
small cans manufactured or imported prior to that effective date. 80 FR
69481. The proposal further stated that:
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\1\ In this context, containers that meet these criteria are
referred to interchangeably as ``small cans of MVAC refrigerant,''
``small cans of refrigerant for MVAC servicing,'' or simply ``small
cans.''
For manufacture and import of small cans of refrigerant for MVAC
servicing, EPA is proposing a compliance date of one year from
publication of the final rule. EPA is also proposing to allow small
cans manufactured and placed into initial inventory or imported
before that date to be sold for one additional year. For example, if
the rule is published on July 1, 2016, small can manufacturers would
have until July 1, 2017, to transition their manufacturing lines to
add self-sealing valves. Manufacturers, distributors, and auto parts
stores would be able to sell all small cans manufactured and placed
into initial inventory or imported prior to July 1, 2017, until July
1, 2018. EPA seeks comments on this proposed implementation
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timeline. [80 FR 69509]
On November 18, 2016, EPA published a rule finalizing the proposed
restriction that non-exempt substitute refrigerants may only be sold to
technicians certified under sections 608 or 609 of the CAA. (81 FR
82280). In the case of refrigerant for use in MVAC, EPA finalized the
exemption for the sale of certain small cans of non-ozone-depleting
substitutes with a self-sealing valve to allow the do-it-yourself
community to continue servicing their personal vehicles. Id. However,
the agency did not finalize the sell-through provision. The preamble to
the final rule states that, ``EPA is requiring that small cans of non-
exempt substitute refrigerant be outfitted with self-sealing valves by
January 1, 2018. Based on comments, EPA is not finalizing the proposal
to prohibit the sale of small cans that do not contain self-sealing
valves that were manufactured or imported prior to that requirement
taking effect.'' Id. The preamble further stated:
With regards to small cans of MVAC refrigerant, manufacturers,
distributors and retailers of automotive refrigerant supported the
proposed ``manufacture-by'' date of one year from publication of the
final rule, but commented that they oppose a sell-through date for
small cans that do not have self-sealing valves. They commented that
such a requirement would be inefficient, burdensome, costly, and
environmentally problematic. It would require all retailers to know
of the requirement and establish processes for returning unsold cans
back to
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the manufacturer for destruction. More likely, the cans may be
improperly disposed of, which would negate the environmental benefit
of the new provisions. One commenter stated that a ``manufacture-
by'' date would shift EPA's burden in ensuring compliance from a few
manufacturers to thousands of retailers. Furthermore, commenters
cited EPA's July 2015 SNAP rule (80 FR 42901; July 20, 2015) which
listed HFC-134a as unacceptable for use as an aerosol as of a
``manufacture-by'' date, rather than a ``sell-by'' date. [81 FR
82342]
EPA described its intention to allow the continued sale of small
cans without self-sealing valves that were manufactured or imported
before the January 1, 2018, compliance date as follows:
In response to the comments received on EPA's proposal to allow
small cans manufactured and placed into initial inventory or
imported before that date to be sold for one additional year, EPA is
not finalizing the sell-through requirement and is finalizing only a
date by which small cans must be manufactured or imported with a
self-sealing valve. EPA agrees that this is the least-burdensome
option and that it avoids the potential for any unintended
consequences of a ``sell-by'' date. [81 FR 82342]
These intentions were also expressed in the regulatory text at 40
CFR 82.154(c)(2), which was revised in the November 2016 rule to state:
``Self-sealing valve specifications. This provision applies starting
January 1, 2018, for all containers holding two pounds or less of non-
exempt substitute refrigerant for use in an MVAC that are manufactured
or imported on or after that date. (i) Each container holding two
pounds or less of non-exempt substitute refrigerant for use in an MVAC
must be equipped with a single self-sealing valve that automatically
closes and seals when not dispensing refrigerant . . . .'' However,
because of an editing error, another provision, 40 CFR
82.154(c)(1)(ix), contains text that could be construed as
contradicting the Agency's clearly expressed intent to allow non-
technicians to purchase, and retailers to sell, small cans of
refrigerant for use in MVAC that were manufactured or imported before
the January 1, 2018, compliance date irrespective of whether they have
a self-sealing valve. The relevant text in 40 CFR 82.154(c)(1) provides
that beginning January 1, 2018 no person may sell or distribute any
non-exempt substitute for use as a refrigerant unless it ``is intended
for use in an MVAC and is sold in a container designed to hold two
pounds or less of refrigerant, has a unique fitting, and has a self-
sealing valve.
The Automotive Refrigeration Products Institute and the Auto Care
Association inquired about whether the language in 40 CFR
82.154(c)(1)(ix) effectively negates the provision in 40 CFR
82.154(c)(2) and the preamble discussion showing EPA's intention to
allow small cans of refrigerant for use in MVAC manufactured or
imported before January 1, 2018, to continue to be sold without self-
sealing valves. EPA is publishing this direct final rule to revise the
regulatory text, so that persons in possession of small cans of
refrigerant for use in MVAC without self-sealing valves that were
manufactured or imported before January 1, 2018, can be assured that
they will be able to sell off their existing inventories without
disruption.
This action will eliminate burden associated with regulatory
uncertainty in this area. The Automotive Refrigeration Products
Institute and the Auto Care Association informed EPA that the lack of
clarity surrounding the status of small cans of refrigerant for use in
MVAC without self-sealing valves that were manufactured or imported
before the compliance date is already creating confusion. Unless
resolved, this lack of clarity could unnecessarily influence sales of
automotive refrigerant during 2017. This is because retailers may not
want to stock large numbers of these small cans of refrigerant for use
in MVAC unless they are given some assurance that they will be able to
sell off any remaining inventory after January 1, 2018. There is also
the concern that if clarity is not provided by January 1, 2018,
retailers may feel compelled to manually pull cans without self-sealing
valves from their shelves and return the cans to their supplier(s).
This rule will eliminate the cost of that stranded inventory and also
eliminate other non-quantified burdens associated with the removal of
such cans from the market, such as the labor involved in segregating
small cans with self-sealing valves from those without self-sealing
valves and physically pulling those from shelves.
V. Statutes and Executive Orders Review
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0256. These changes do not add information
collection requirements beyond those currently required under the
applicable regulations.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action clarifies that small cans of
refrigerant for use in MVAC may be sold to persons who are not
certified technicians even if they are not equipped with a self-sealing
valve, so long as those small cans are manufactured or imported prior
to January 1, 2018. We have therefore concluded that this action will
have no net regulatory burden for all directly regulated small
entities.
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action corrects a potential conflict in the
refrigerant management regulations as to whether or not small cans of
refrigerant for use in MVAC could be sold to non-technicians if they
were manufactured or imported prior to January 1, 2018, and do not have
a self-sealing valve. This action clarifies that those small cans of
refrigerant for use in MVAC may be sold to persons who are not
certified technicians.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
[[Page 45205]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action corrects a potential conflict in the
refrigerant management regulations as to whether or not small cans of
refrigerant for use in MVAC could be sold to non-technicians if they
were manufactured or imported prior to January 1, 2018, and do not have
a self-sealing valve. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This action does not affect the level of protection provided to
human health or the environment. This action corrects a potential
conflict in the refrigerant management regulations as to whether or not
small cans of refrigerant for use in MVAC could be sold to non-
technicians if they were manufactured or imported prior to January 1,
2018, and do not have a self-sealing valve. This action clarifies that
those small cans of refrigerant for use in MVAC may be sold to persons
who are not certified technicians. The documentation for this decision
is contained in Docket No. EPA-HQ-OAR-2017-0213, where EPA's assessment
of the underlying regulatory changes that led to this correction found
no disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations and/or
indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 82
Environmental protection, Air pollution control, Chemicals,
Reporting and recordkeeping requirements.
Dated: September 21, 2017.
E. Scott Pruitt,
Administrator.
For the reasons set forth in the preamble, the Environmental
Protection Agency amends 40 CFR part 82 as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. In Sec. 82.154, revise paragraph (c)(1)(ix) to read as follows:
Sec. 82.154 Prohibitions.
* * * * *
(c) * * *
(1) * * *
(ix) The non-exempt substitute refrigerant is intended for use in
an MVAC and is sold in a container designed to hold two pounds or less
of refrigerant, has a unique fitting, and, if manufactured or imported
on or after January 1, 2018, has a self-sealing valve that complies
with the requirements of paragraph (c)(2) of this section.
* * * * *
[FR Doc. 2017-20840 Filed 9-27-17; 8:45 am]
BILLING CODE 6560-50-P