[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Proposed Rules]
[Pages 78705-78716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29999]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2007-0163; FRL-8752-6]
RIN 2060-AH67
Protection of Stratospheric Ozone: Ban on the Sale or
Distribution of Pre-Charged Appliances
AGENCY: Environmental Protection Agency [EPA].
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to ban the sale or distribution of air-
conditioning and refrigeration appliances containing HCFC-22, HCFC-
142b, or blends containing one or both of these substances, beginning
January 1, 2010. In addition, EPA is proposing to extend these
requirements to air-conditioning and refrigeration appliances that are
suitable only for use with newly produced HCFC-22, HCFC-142b, or blends
containing one or both of these controlled substances as the
refrigerant, and pre-charged appliance parts. We are proposing these
restrictions to protect stratospheric ozone.
DATES: Comments must be received on or before January 22, 2009, unless
a public hearing is requested. Comments must then be received on or
before February 6, 2009. Any party requesting a public hearing must
notify the contact listed below under FOR FURTHER INFORMATION CONTACT
by 5 p.m. Eastern Standard Time on January 2, 2009. If a hearing is
held, it will take place on January 7, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0163, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: 202-566-1741.
Mail: Docket , Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, Mail code:
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: Docket EPA-HQ-OAR-2003-0163, Air
and Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room
B108, Mail Code 6102T, Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2007-0163. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: Cindy Axinn Newberg, EPA,
Stratospheric Protection Division, Office of Atmospheric Programs,
Office of Air and Radiation (6205J), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, (202) 343-9729, [email protected].
SUPPLEMENTARY INFORMATION: (1) Under the Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol), as amended, the
U.S. and other industrialized countries that are Parties to the
Protocol have agreed to limit production and consumption of
hydrochlorofluorocarbons (HCFCs) and to phase out consumption in a
step-wise fashion over time, culminating in a complete phaseout in
2030. Title VI of the Clean Air Act Amendments of 1990 (CAAA)
authorizes EPA to promulgate regulations to manage the consumption and
production of HCFCs until the total phaseout in 2030. EPA promulgated
final regulations establishing an allowance tracking system for HCFCs
on January 21, 2003 (68 FR 2820). These regulations were amended on
June 17, 2004 (69 FR 34024) and July 20, 2006 (71 FR 41163). This
action proposes a ban on sale or distribution of air-conditioning and
refrigeration appliances that contain HCFC-22, HCFC-142b, or blends
containing one or both of these controlled substances. In addition, EPA
is proposing to extend these requirements to air-conditioning and
refrigeration appliances that are suitable only for use with newly
produced HCFC-22, HCFC-142b, or blends containing one or both of these
controlled substances as the refrigerant.
(2) Abbreviations and Acronyms Used in This Document.
CAAA--Clean Air Act Amendments of 1990
CFC--chlorofluorocarbon
HCFC--hydrochlorofluorocarbon
[[Page 78706]]
ODP--ozone depletion potential
ODS--ozone-depleting substance
Party--States and regional economic integration organizations that have
consented to be bound by the Montreal Protocol on Substances that
Deplete the Ozone Layer
Protocol--Montreal Protocol on Substances that Deplete the Ozone Layer
SNAP--Significant New Alternatives Policy
TSCA--Toxic Substance Control Act
UNEP--United Nations Environment Programme
(3) 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.
Table of Contents
I. Regulated Entities
II. Background
III. Proposed Action
A. Authority to Ban the Sale and Distribution or Offer for Sale
and Distribution of Specific Appliances
B. Criteria and Conditions Established Under Sec. 615 of CAAA
1. What are the impacts on stratospheric ozone resulting from
continued activities?
2. What factors will influence the costs of pre-charged
appliances charged with substitutes?
3. Are there implications for other markets?
4. Without taking action are there impacts associated with
unequal treatment of stakeholders?
C. Establishing 40 CFR Part 82 Subpart I
D. Air-Conditioning and Refrigeration Appliances Banned From
Sales and Distribution or Offer for Sale or Distribution in
Interstate Commerce
1. Resale of Used Air-Conditioning and Refrigeration Appliances
in Interstate Commerce
2. Servicing Air-Conditioning and Refrigeration Appliances
3. Identifying Banned Appliances
4. Ban on Sale or Distribution in Interstate Commerce
5. Imports and Exports
6. Sale and Distribution of Appliances Manufactured Prior to
January 1, 2010
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Regulated Entities
These proposed amendments will affect the following categories:
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Category NAICS code SIC code Examples of regulated entities
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Chlorofluorocarbon gas manufacturing....... 325120 2869 Chlorodifluoromethane manufacturers;
Dichlorofluoroethane manufacturers;
Chlorodifluoroethane manufacturers.
Chlorofluorocarbon gas importers........... 325120 2869 Chlorodifluoromethane importers;
Dichlorofluoroethane importers;
Chlorodifluoroethane importers.
Chlorofluorocarbon gas exporters........... 325120 2869 Chlorodifluoromethane exporters;
Dichlorofluoroethane exporters;
Chlorodifluoroethane exporters.
Manufacturers of air conditioners and 333415 ............ Air-Conditioning Equipment and
refrigerators. Commercial and Industrial
Refrigeration Equipment Manufacturing.
Importers of air conditioners and 333415 3585 Air-Conditioning Equipment and
refrigerators. Commercial and Industrial
Refrigeration Equipment Manufacturing.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
potentially could be regulated by this action. Other types of entities
not listed in this table could also be affected. To determine whether
your facility, company, business organization, or other entity is
regulated by this action, you should carefully examine these
regulations. 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.
II. Background
In 1973 chemists Frank Sherwood Rowland and Mario Molina at the
University of California-Irvine began studying the impacts of
chlorofluorocarbons (CFCs) in the earth's atmosphere. They discovered
that CFC molecules were stable enough to migrate to the stratosphere
and that the chorine atoms contained in these molecules could cause the
breakdown of large amounts of ozone in the stratosphere. The Toxic
Substances Control Act (TSCA), passed in 1976, included regulatory
authority over CFCs. EPA's first regulatory response to the concerns
for stratospheric ozone protection resulted in a ban on CFC aerosol
propellants (43 FR 11301, March 17, 1978; 43 FR 11318, March 17, 1978).
EPA followed this initial regulatory approach with an Advance
Notice of Proposed Rulemaking (ANPRM) which discussed a freeze on the
production of certain CFCs and a system of marketable permits to
allocate CFC consumption among industries (45 FR 66726; October 7,
1980). EPA did not act immediately on the 1980 ANPRM and was
subsequently sued by the Natural Resources Defense Council (NRDC v.
Thomas, No. 84-3587 (D.D.C.)) for failure to regulate CFCs further. EPA
and NRDC settled the case and agreed that EPA would propose further
regulatory controls on CFCs, or state the reasons for deciding not to
issue a
[[Page 78707]]
proposal, by December 1, 1987, and would take final action by August 1,
1988.
On January 10, 1986 (51 FR 1257), EPA published its Stratospheric
Ozone Protection Plan. That plan described the analytic basis for
supporting negotiations for an international agreement to control CFCs
and for reassessing the need for additional domestic regulations of
CFCs and other ozone-depleting substances (ODS). The United States
participated in negotiations organized by the United Nations
Environment Programme (UNEP) to develop an international agreement to
protect stratospheric ozone. These negotiations, preceded by the 1985
signing of the Vienna Convention, resulted in the signing of the
Montreal Protocol in 1987. The United States ratified the Montreal
Protocol on April 21, 1988. In 1988, EPA promulgated regulations
implementing the requirements of the Montreal Protocol through a system
of tradable allowances under section 157(b) of the Clean Air Act as
amended in 1977. This section was subsequently modified by the 1990
Amendments and became CAAA Sec. 615. The Senate Report on the 1990
Amendments, Senate Rep. No. 101-228: ``Authority of the Administrator''
notes that this section ``is intended * * * to preserve the authority
and responsibility of the Administrator as set forth in section 157 of
the existing Clean Air Act,'' although the Conference report to the
1990 CAAA is silent on this matter.
Since the CAAA were passed in 1990, EPA has promulgated regulations
based on various provisions of Title VI. For example, EPA has
promulgated a production and consumption phaseout schedule that
included a revised trading regime for Class I ODS, a production and
consumption phaseout schedule and trading regime for Class II ODS,
servicing requirements for air-conditioning and refrigeration
appliances, bans on nonessential products containing or manufactured
with ODS, and labeling requirements.
Concern for ozone layer protection remains paramount for the global
community. In an effort to further protect human health and the
environment, the Parties to the Montreal Protocol adjusted the Montreal
Protocol's phaseout schedule for HCFCs in September 2007. The Parties
agreed that industrialized countries, including the United States,
would reduce production and consumption of HCFCs to 75 percent below
the established baseline in 2010, to 90 percent below the established
baseline in 2015, and to 99.5 percent in 2020--allowing for only 0.5
percent production and consumption between 2020-2030 to be used solely
for servicing existing appliances culminating in the terminal phaseout
in 2030. In addition, the Parties adjusted the schedule for non-
industrialized countries by agreeing to set production and consumption
baselines based on the average values for 2009-2010 production and
consumption, respectively; to freeze production and consumption in
2013; and to add stepwise reductions as follows: 10 percent below
baselines in 2015, 35 percent below in 2020, 67.5 percent below in 2025
and allowing for a servicing tail to average no more than 2.5 percent
between 2030-2040 to be used solely for servicing existing appliances,
culminating in the terminal phaseout in 2040.
The requirements already established at Sec. 82.16(c) will make it
unlawful to produce or import HCFC-22 or HCFC-142b on or after January
1, 2010 for use in refrigeration or air-conditioning appliances
manufactured on or after that date. The practical result of this
provision is that effective January 1, 2010, domestic manufacturers of
air-conditioning and refrigeration appliances will not be able to
charge newly manufactured appliances with newly produced or imported
HCFC-22 or HCFC-142b, and thus will not be introducing appliances
containing these newly produced substances into interstate commerce.
This regulatory provision does not lead to similar results for imported
products, because these appliances are charged before entering the
United States.
III. Proposed Action
EPA is proposing to establish regulations that ban the sale or
distribution or offer for sale or distribution in interstate commerce
of all air-conditioning and refrigeration appliances containing HCFC-
22, HCFC-142b, or blends containing one or both of these controlled
substances, beginning January 1, 2010. The ban would cover imported
appliances and appliances ultimately destined for export, as well as
appliances manufactured in the United States for domestic use. In
addition, EPA is proposing to extend these requirements to air-
conditioning and refrigeration appliances that are suitable only for
use with newly produced HCFC-22, HCFC-142b, or blends containing one or
both of these controlled substances as the refrigerant, as well as pre-
charged appliance components.
Over 9.7 million pre-charged air-conditioning and refrigeration
appliances (e.g., window air conditioners, refrigerators) were imported
into the United States in 2006. Coupled with any pre-charged appliances
that were manufactured domestically, they represent a concern for ozone
layer recovery after the January 1, 2010 restriction on production and
import of HCFC-22 and HCFC-142b becomes effective. The United States is
committed to protecting stratospheric ozone because a thinning of the
ozone layer results in greater ultraviolet radiation, and more
incidences of related human health damages, such as incidences of skin
cancer.
A. Authority to Ban Sale or Distribution, or Offer for Sale and
Distribution, of Specific Types of Appliances
Section 301(a) gives EPA statutory authority to promulgate
regulations as are necessary to carry out its functions under the Clean
Air Act, such as issuing prohibitions and standards. Further, Sec. 615
of the CAAA states that:
If, in the Administrator's judgment, any substance, practice,
process, or activity may reasonably be anticipated to affect the
stratosphere, especially ozone in the stratosphere, and such effect
may reasonably be anticipated to endanger public health or welfare,
the Administrator shall promptly promulgate regulations respecting
the control of such substance, practice, process or activity, and
shall submit notice of the proposal and promulgation of such
regulation to the Congress.
As discussed in the Background section to this proposal, EPA acted
under pre-1990 CAA authority that is substantially the same as the
authority provided by CAAA Sec. 615.\1\ Various sections of Title VI
of the CAAA include statutory language that is the same as, or similar
to, the statutory authority that existed prior to 1990. Provisions
contained in Title VI of the CAAA include specific legislative language
pertaining to individual ODSs or specific programs while also including
non-specific authority in Sec. 615 to determine when action is
necessary to ensure adequate protection of stratospheric ozone. For
example, Sec. 606 authorizes EPA to accelerate the phaseout
requirements to take further action necessary to protect stratospheric
ozone. The general authority in Sec. 615 serves as a supplement to
other more specific authority contained in Title VI.
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\1\ In 1988, EPA promulgated regulations implementing the
requirements of the Montreal Protocol through a system of tradable
allowances under section 157(b) of the Clean Air Act as amended in
1977. Section 157(b) was subsequently modified by the 1990
Amendments and became section 615. Thus EPA has taken action
previously under similar authority.
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[[Page 78708]]
While Sec. 615 sets forth the authority and responsibility of the
Administrator to protect stratospheric ozone in order to protect public
health and welfare, EPA recognizes that this authority was intended to
augment the other authorities and responsibilities established by Title
VI and not to serve as a basis for prohibiting practices, processes, or
activities that Congress specifically exempted. For example, EPA does
not intend to promulgate regulations eliminating the exceptions from
the phaseout for essential uses as established by Sec. 604.
Since 1990, EPA has rarely relied on the authority in Sec. 615 to
support rulemaking activity, since the activities that the Agency
regulates have generally been addressed under other, more specific,
Title VI authorities. In 1993, EPA promulgated trade restrictions using
Sec. 615 authority in order to conform EPA regulations to Montreal
Protocol provisions on trade with countries that were not Parties to
the Protocol (March 18, 1993, 58 FR 15014, 15039 and December 10, 1993,
58 FR 65018, 65044). These trade restrictions prevented shipments of
ozone-depleting substances from the U.S. to countries with no
regulatory infrastructure to control their use. Promulgating these
restrictions reduced the release of ozone-depleting substances into the
atmosphere, thereby reducing effects on public health and welfare. The
restrictions also resulted in eliminating the U.S. as a potential
market for ODS produced in non-Parties, thereby discouraging shifts of
production to non-Parties and limiting the potential for undermining
the phaseout. Since 1993, EPA has stated that Sec. 615 authority is
available and would be used if the other Title VI authorities were not
sufficient to address concerns for ozone layer protection. For example,
in the late 1990s, EPA, the National Aeronautics and Space
Administration (NASA), and the Federal Aviation Administration (FAA)
considered options for addressing potential ozone depletion concerns
that would result from supersonic commercial aircraft. EPA and NASA
analyzed the impacts from a theoretical fleet of supersonic commercial
aircraft, known as High Speed Civil Transport (HCST), and in an October
1998 Memorandum of Agreement between the two agencies (signed by Spence
M. Armstrong, Associate Administrator for Aeronautics and Space
Transportation Technology (NASA) and Robert Perciasepe, Assistant
Administrator for Air and Radiation (EPA)) (available in the docket)
noted the potential to rely on Sec. 615 in conjunction with other
regulatory authorities.
Through this action EPA is proposing to establish regulations under
authority of Sec. 615, to take effect January 1, 2010, that would ban
the sale or distribution or offer for sale or distribution in
interstate commerce of all air-conditioning and refrigeration
appliances containing HCFC-22, HCFC-142b, or blends containing one or
both of these controlled substances. Furthermore, EPA is proposing to
ban effective January 1, 2010, the sale or distribution or offer for
sale or distribution in interstate commerce of all air-conditioning and
refrigeration appliances suitable for use solely with newly produced
HCFC-22, HCFC-142b, or blends containing one or both of these
controlled substances, as well as pre-charged appliance parts. As
discussed elsewhere in this proposal, EPA believes that not exercising
Sec. 615 authority for precharged appliances could lead to problematic
consequences in light of the January 1, 2010, ban on the manufacture of
HCFC-22, HCFC-142b, or blends containing one or both of these
substances for servicing new appliances. This ban makes it more likely
that new appliances containing these substances could be serviced or
disposed of illegally by non-certified technicians lacking training on
emissions minimization. Furthermore, reducing the installed base of
HCFC appliances results in reducing potential emissions and lessening
the need for HCFCs for servicing. While some of the HCFCs used in
appliances can be reclaimed and reused, a certain amount of the HCFCs
becomes contaminated and is not available for future use. Thus
restricting the installed base of HCFC appliances will have the effect
of reducing the overall amount of HCFC consumption and emissions. This
approach is consistent with the previous actions taken to restrict
applications of ozone-depleting substances where suitable substitutes
exist. This proposal also helps further the goals of the Montreal
Protocol, in particular the Parties' recent emphasis on reducing
emissions of HCFCs, as evidenced by the Parties' agreement in September
2007 to accelerate the HCFC production and consumption phaseout. The
result of the rulemaking will be fewer appliances pre-charged with
HCFCs that could be emitted either during the useful lifetimes of the
appliances via leaks or improper servicing, or by the improper disposal
of the appliances resulting in the release of refrigerant. EPA requests
comments regarding whether this is an appropriate circumstance to
invoke the authority provided by Sec. 615.
B. Criteria and Conditions Established Under Sec. 615 of CAAA
Under Sec. 615, if in the Administrator's judgment, any substance,
practice, process, or activity may reasonably be anticipated to affect
the stratosphere, especially ozone in the stratosphere, and such effect
may reasonably be anticipated to endanger public health or welfare,
then the Administrator must promptly promulgate regulations respecting
the control of such substance, practice, process or activity. In this
proposal, the Administrator proposes to conclude that, beginning
January 1, 2010, the practice of selling and distributing precharged
air-conditioning and refrigeration appliances and pre-charged appliance
parts containing HCFC-22, HCFC-142b, or blends of these substances, as
well as air-conditioning and refrigeration appliances suitable for use
solely with newly produced HCFC-22, HCFC-142b, or blends of these
substances, may reasonably be anticipated to affect ozone in the
stratosphere, and such effect may reasonably be anticipated to endanger
public health.\2\ EPA requests comment on these proposed findings.
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\2\ EPA is not addressing in this proposed action the separate
question of whether such effect also may reasonably be anticipated
to endanger public welfare.
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As summarized in the background section of this preamble, the
effects of ODS on stratospheric ozone are well known. Further
information on the science of ozone depletion is available in the
docket. The specific ODS addressed in this action, HCFC-22 and HCFC-
142b, are class II substances listed under section 602(b) of the Clean
Air Act. Pursuant to section 602(b), class II substances are those
substances that are ``known or may reasonably be anticipated to cause
or contribute to harmful effects on the stratospheric ozone layer.'' As
discussed below under the heading ``What are the impacts on
stratospheric ozone resulting from continued activities?,'' EPA has
prepared an estimate of the reduction in HCFC emissions attributable to
a ban on pre-charged appliances. EPA estimates that a ban on HCFC pre-
charged imports will reduce HCFC emissions by approximately 4,700 ODP
tons from 2010 through 2019. EPA plans to assess whether it is feasible
to compare the HCFC emissions averted through this rulemaking to the
overall ODS emission rate for the same period. (For purposes of
approximate comparison, an assumed average of 470 ODP tons per year of
[[Page 78709]]
averted emissions during this time period is approximately 12 percent
of the 3,810 ODP ton U.S. compliance cap for consumption of all HCFCs
each year during 2010-2014, and 31 percent of the cap during 2015-
2019.)
The phrase ``such effect,'' as used in section 615, could be read
to refer to (1) stratospheric ozone depletion generally; (2)
stratospheric ozone depletion associated with HCFCs; or (3)
stratospheric ozone depletion attributable to the specific practice of
importing HCFC pre-charged appliances. As indicated above, the
Administrator proposes to conclude that, the stratospheric ozone
depletion attributable to the specific practice of importing HCFC pre-
charged appliances ``may reasonably be anticipated to endanger'' public
health and thus is sufficient in itself. Therefore, it is not necessary
to arrive at additional or definitive interpretations for purposes of
this action.
The links between stratospheric ozone depletion and skin cancer are
well established. Other public health concerns include cataracts and
immune suppression. Since the appearance of an ozone hole over the
Antarctic in the 1980s, Americans have become aware of the health
threats posed by ozone depletion, which decreases the atmosphere's
ability to protect the earth's surface from the sun's UV rays. The 2006
documents Scientific Assessment of Ozone Depletion, prepared by the
Scientific Assessment Panel to the Montreal Protocol, and Environmental
Effects of Ozone Depletion and its Interactions with Climate Change,
prepared by the Environmental Effects Assessment Panel (see http://ozone.unep.org/Assessment_Panels/), provide comprehensive information
regarding the links between emissions of ODS, ozone layer depletion, UV
radiation, and human health effects.
Skin cancer is the most common form of cancer in the U.S., with
more than 1,000,000 new cases diagnosed annually (National Cancer
Institute, ``Common Cancer Types,'' at http://www.cancer/gov/cancertopics/commoncancers). Melanoma, the most serious form of skin
cancer, is also one of the fastest growing types of cancer in the U.S.;
melanoma cases in this country have more than doubled in the past two
decades, and the rise is expected to continue (Ries, L., Eisner, M.P.,
Kosary, C.L., et al., eds. SEER Cancer Statistics Review, 1973-1999.
Vol 2003. Bethesda (MD): National Cancer Institute; 2002.) In 2007,
invasive melanoma was expected to strike more than 59,000 Americans and
kill more than 8,000 (National Cancer Institute, ``Melanomas,'' at
http://www.cancer/gov/cancertopics/types/melanoma).
Nonmelanoma skin cancers are less deadly than melanomas.
Nevertheless, left untreated, they can spread, causing disfigurement
and more serious health problems. There are two primary types of
nonmelanoma skin cancers. Basal cell carcinomas are the most common
type of skin cancer tumors. They usually appear as small, fleshy bumps
or nodules on the head and neck, but can occur on other skin areas.
Basal cell carcinoma grows slowly, and rarely spreads to other parts of
the body. It can, however, penetrate to the bone and cause considerable
damage. Squamous cell carcinomas are tumors that may appear as nodules
or as red, scaly patches. This cancer can develop into large masses,
and unlike basal cell carcinoma, it can spread to other parts of the
body.
EPA projects that approximately 1,700 total cases of cancer
(nonmelanoma and cutaneous malignant melanoma) and approximately 9
premature mortalities will be avoided by banning the sale and
distribution of pre-charged appliances beginning in 2010. More
information regarding this projection is available in a memorandum
prepared by ICF Consulting for EPA (``Avoidance of Skin Cancer
Incidences and Mortalities Associated with a 2010 Ban on Products Pre-
Charged with R-22'') and placed in the docket for this rulemaking. EPA
does not routinely provide projections of this nature in developing
rules under Title VI of the CAA. Other UV-related health effects, which
EPA has not quantified, are discussed below.
Other UV-related skin disorders include actinic keratoses and
premature aging of the skin. Actinic keratoses are skin growths that
occur on body areas exposed to the sun. The face, hands, forearms, and
the ``V'' of the neck are especially susceptible to this type of
lesion. Although premalignant, actinic keratoses are a risk factor for
squamous cell carcinoma. Chronic exposure to the sun also causes
premature aging, which over time can make the skin become thick,
wrinkled, and leathery.
Cataracts are a form of eye damage in which a loss of transparency
in the lens of the eye clouds vision. If left untreated, cataracts can
lead to blindness. Research has shown that UV radiation increases the
likelihood of certain cataracts. Although curable with modern eye
surgery, cataracts diminish the eyesight of millions of Americans.
Other kinds of eye damage include pterygium (i.e., tissue growth that
can block vision), skin cancer around the eyes, and degeneration of the
macula (i.e., the part of the retina where visual perception is most
acute).
Scientists have found that overexposure to UV radiation may
suppress proper functioning of the body's immune system and the skin's
natural defenses. All people, regardless of skin color, might be
vulnerable to effects including impaired response to immunizations,
increased sensitivity to sunlight, and reactions to certain
medications.
EPA seeks comment on whether the practice of selling and
distributing air-conditioning and refrigeration appliances containing
HCFC-22, HCFC-142b, or blends of these substances may reasonably be
anticipated to affect ozone in the stratosphere, and such effect may
reasonably be anticipated to endanger public health or welfare.
EPA investigated the potential impacts of failure to control the
import of refrigeration and air-conditioning appliances containing
HCFC-22, HCFC-142b, or blends containing one or both of these
controlled substances. EPA believes the impacts fall into two broad
categories: environmental impacts on stratospheric ozone resulting from
continued activities and financial impacts.
The first impact category--impacts on stratospheric ozone resulting
from continued activities--can be further delineated into:
Impacts from the continued production of HCFC-22, HCFC-
142b, and blends containing one or both of these substances for use as
a refrigerant in air-conditioning and refrigeration appliances that
cannot be initially charged in the U.S. but could be charged abroad and
subsequently imported into the U.S. if EPA did not take action; and
Impacts from improperly servicing equipment and/or venting
controlled substances.
1. What are the impacts on stratospheric ozone resulting from continued
activities?
The global HCFC phaseout is already underway, and restrictions on
production, import, and sale and distribution of specific types of HCFC
products are already in place in the United States and in international
markets. The United States banned sale and distribution of aerosols,
pressurized dispensers, and foam products containing HCFCs in 1994, and
the European Union has banned HCFCs for refrigerant use in new
equipment since 2001 (Regulation EC No 2037/2000 of the European
Parliament). Many manufacturers of pre-charged appliances already
service the European market and other markets with non-
[[Page 78710]]
HCFC pre-charged appliances, thus they are already manufacturing air-
conditioning and refrigeration pre-charged appliances with non-ozone
depleting refrigerants. EPA believes this should ease the
implementation of a proposed ban, and given that retooling and other
design changes have either already occurred to meet the European and
other markets, or will occur as a result of the global phaseout of
HCFCs, EPA believes costs associated directly with this proposed
rulemaking are limited.
EPA estimates that in 2006, approximately 9.7 million pre-charged
appliances, including heat pumps, window air conditioners, and
dehumidifiers, were imported into the United States and sold throughout
the country. This figure includes units pre-charged with other
refrigerants. EPA estimates that 9.0 million pre-charged appliances,
the vast majority, were pre-charged with HCFC-22. In addition to the
9.7 million imported pre-charged appliances, appliances were sold that
were manufactured domestically. EPA believes this is a mature and
stable market and EPA projects that in the absence of a restriction, as
many as 12.7 million pre-charged HCFC appliances could be imported and
made available for sale or distribution in the U.S., on an annual
basis, during 2010-2019 using reasonable assumptions concerning market
growth. Separate domestic restrictions on the production and import of
HCFC-22 and HCFC-142b would essentially preclude the manufacture and
initial charging of these appliances with newly manufactured HCFC-22,
HCFC-142b, and blends containing one or both of these controlled
substances, as of January 1, 2010.
In estimating the environmental impacts associated with continuing
to allow sale and distribution of HCFC pre-charged appliances in
interstate commerce, EPA considered factors such as the number of
different appliances likely to be available, the average charge sizes
for the appliances, and the leak rates associated with the appliances
that are likely to be serviced during their useful lifetime. The
projected emission of HCFC-22 between January 1, 2010 and December 31,
2019, in the absence of a ban on pre-charged appliances, based on
charge sizes and leak rates is approximately 4,700 ODP-weighted metric
tons from these pre-charged appliances. By comparison, in accordance
with the Montreal Protocol adjustments from September 2007, in 2010 the
cap for consumption for the total basket of HCFCs in the United States
will be 3,810 ODP tons annually for the years 2010-2014 and 1,524 ODP
tons for the years 2015-2020. This consumption is for the total basket
of HCFCs, with HCFC-22 and HCFC-142b restricted to servicing the
existing base of air-conditioning and refrigeration appliances--in
particular the units that are charged onsite, including but not limited
to, chillers and residential unitary units.
The maximum level of consumption will also be used to service and
charge both existing and newly manufactured appliances with other
HCFCs, and in other applications such as niche solvent uses prior to
2015, and will include amounts for consumption of HCFC-123, HCFC-124,
HCFC-225ca, HCFC-225cb, and--in some extremely narrow cases--HCFC-141b.
EPA requests comments on the projected number of pre-charged HCFC
appliances that could be available after January 1, 2010, and the
associated amount of ODS that would be necessary to both charge and
service these appliances during their useful lifetimes.
2. What factors will influence the costs of pre-charged appliances
charged with substitutes?
EPA believes that for the air-conditioning and refrigeration
applications affected by this proposed rule, the price of the
refrigerant is a comparatively small fraction of the total price of the
appliance, ranging from 1 to 3 percent of total cost. EPA also believes
that only a limited number of appliance components will be replaced to
accommodate an alternative refrigerant. The decision by the Parties to
the Montreal Protocol to adjust the phaseout schedules for HCFCs was
based partly on reliable information concerning commercially available
substitute refrigerants that has been provided to the Parties by the
technical assessment panels the Parties sponsor. For some applications,
manufacturers have a suite of refrigerants from which to choose and can
therefore consider a range of price and operational factors.
EPA considered whether the transition to alternative refrigerants
in pre-charged appliances would involve differential costs. Considering
that these appliances are not retrofitted, this would be an upstream
cost occurring at the point of manufacture, not after consumer
purchase. EPA's evaluation, included in the docket for this rulemaking,
examined potential consumer impacts from differences in refrigerant
cost and differences in costs associated with changes to certain
appliance components to accommodate an alternative refrigerant.
Generally the R-410A appliances are more energy-efficient than their
HCFC-22 counterparts, which may result in reduction of energy usage by
consumers and thus would result in a net savings. EPA assessed existing
industry data and applied assumptions regarding future manufacturing
and marketing trends. Several critical limitations associated with
projecting differential refrigerant and component prices precluded the
Agency from determining an incremental cost estimate with certainty.
However, given the relatively limited range of impacts, EPA believes it
can estimate, with a reasonable degree of certainty, a range of
possible cost impacts.
The prices of HCFC-22 in developing countries range widely from $2/
kg to $13/kg. The current average price for R-410A--one substitute for
HCFC-22 in non-industrialized countries--is approximately $13/kg.
Refrigerant prices vary widely based on factors such as volumes
purchased and negotiation of purchasing contracts; further, projecting
prices into the future is complicated by variability in individual
manufacturers' business decisions regarding when to make the long-term
capital investments to alternative refrigerants. EPA expects, however,
that the prices of alternative refrigerants such as R-410A will drop as
demand increases and patents expire. The more aggressive phasedown of
HCFC-22 production and import resulting from the decision taken at the
19th Meeting of the Parties is likely to lead to an increase in the
price of HCFC-22 and a drop in the price of R-410A. Prices of HCFC-22
will likely increase as the stepwise reductions in production and
consumption continue. As the global phaseout of HCFCs continues, other
international markets may become more restrictive, further influencing
the global pricing.
Equipment charged with alternative refrigerants such as R-410A
requires slightly different components--such as thicker-walled copper
tubing--that may cost slightly more than the components used in older
HCFC-22 appliances. EPA is not aware of any industry data now available
that projects the likely future differences in component costs between
equipment designed for HCFC-22 and equipment designed for alternatives
including R-410A, whether from manufacturers in developed countries or
developing countries. EPA's evaluation estimates that for appliances
manufactured in the United States, incremental costs associated with
component modifications could range from zero to 10 percent of the cost
of the appliances--an estimated per-unit difference of $5 for smaller
units and $45 for larger units. The cost differential
[[Page 78711]]
for manufacturers in developing countries could be less or more, and
the degree to which any such differential would be passed along to U.S.
consumers is unknown. The more efficient operations of the R-410A
appliances may result in reduced energy costs.
Given the caveats above, EPA estimates that the price differential
could range from zero to $45 (with a mid-range of $42.50) for each of
the larger units (e.g., unitary air conditioners) that would be
imported annually during the period 2010-2019, and that the
differential for the smaller units (e.g., room air-conditioners) would
range from zero to $5 (with a mid-range of $3.50).
In the analysis included in the docket for this proposed
rulemaking, EPA states that 9.0 million appliances pre-charged with
HCFC-22 were imported into the United States in 2006. Applying
assumptions identified in the docket concerning market growth, EPA
estimates that the market for imported pre-charged appliances will grow
to an annual average rate of 12.7 million appliances per year during
the period 2010-2019. Thus, during the period 2010-2019, EPA projects
that an average of 12.7 million appliances per year would be imported
pre-charged with a non-ozone-depleting alternative refrigerant such as
R-134a, R-407C, or R-410A. EPA's analysis shows that the engineering
modifications to components of appliances using R-134a or R-407C are
likely to have negligible cost. EPA has, however, calculated the
incremental cost associated with the more significant modifications
necessary for units using R-410A, which EPA estimates will constitute
approximately 64 percent of the pre-charged imports during this time,
or approximately 8.1 million of the 12.7 million pre-charged units
imported with alternative refrigerants on an annual basis during 2010-
2019.
The annual aggregate of such impacts would range from zero to $48
million, with a mid-range estimate of $41 million.
Assumptions regarding the market, growth, and factors concerning
costs are further considered in a draft memorandum Costs Associated
with Refrigerant Substitution from R-22 to R-410A in Pre-charged
Equipment,\3\ prepared by ICF Consulting for EPA and available in the
docket for this rulemaking. EPA seeks comment on that draft memorandum,
including the assumptions regarding likely refrigerant replacement and
the cost impacts. In addition, EPA requests comments regarding the
current and potential availability and prices of pre-charged appliances
that do not contain HCFC-22, HCFC-142b, or blends containing either of
these refrigerants. In particular, EPA is interested in information
regarding likely market trends considering both the promulgation of a
ban on sale and distribution and in the absence of such a restriction.
EPA requests comments on the projected number of appliances that could
be available after January 1, 2010, and the associated amount of ODS
that would be necessary to both charge and service these appliances
during their useful lifetimes.
---------------------------------------------------------------------------
\3\ HCFC-22 is also referred to as R-22, particularly where it
is used in refrigeration and air-conditioning applications.
---------------------------------------------------------------------------
3. Are There Implications for Other Markets?
EPA believes that there is an additional impact associated with not
banning the sale and distribution in interstate commerce of these
appliances as of January 1, 2010. EPA believes that prolonging U.S.
demand for imported pre-charged appliances would discourage global
efforts to transition to non-ODS technologies in manufactured air-
conditioning and refrigeration appliances. Given the commitments of the
United States and its trading partners to ultimately phase out HCFCs,
investment in HFC product lines is occurring and will continue to occur
globally. Production capacity requires a long-term capital investment
and the choice of refrigerant dictates some of that investment in the
form of factory tooling, design, and a network of suppliers for
components. Without this proposed ban, investment decisions influenced
by demand could foster continued investment in HCFC-based manufacturing
rather than investment in alternatives and would run counter to the
United States's domestic approach to promote smooth transitions rather
than a rush to transition at the tail end of global phaseout. EPA has
not calculated these potential impacts but does recognize that such
impacts potentially exist. EPA requests comments regarding the timing
for transitioning pre-charged appliances to non-ODS refrigerants.
4. Without Taking Action Are There Impacts Associated With Unequal
Treatment of Stakeholders?
The requirements established at Sec. 82.16(c) make it unlawful,
effective January 1, 2010, to produce or import HCFC-22 or HCFC-142b
for use in refrigeration or air-conditioning appliances manufactured on
or after that date. The result of this provision is that, effective
January 1, 2010, domestic air-conditioning and refrigeration appliance
manufacturers will no longer have newly manufactured or imported HCFC-
22 or HCFC-142b available to charge their newly manufactured
appliances. EPA believes that this proposal, once finalized, will have
the effect of providing more equitable treatment of domestically
manufactured and imported appliances by holding the equipment to the
same requirements for sale and distribution within interstate commerce.
EPA would like to clarify that when referring to appliances that
are suitable for use solely with newly produced HCFC-22, HCFC-142b, and
blends containing one or both of these controlled substances, EPA means
to refer to appliances that according to the manufacturer would not be
suitable for use with recycled or reclaimed refrigerants. EPA believes
that such a situation could potentially arise if, for example,
manufacturer's directions stated specifically that the appliance must
be charged with newly manufactured refrigerants. EPA is not suggesting
through this action to create any differentiated standards, just to
clarify that the proposed rule is not intended to extend to newly
manufactured appliances charged with used refrigerants.
EPA believes that not promulgating these proposed requirements, or
a very similar set of requirements, could result in differing treatment
with regard to sale and distribution in interstate commerce for similar
appliances based on the location of the manufacturing facility. EPA
requests comments on the application of a sales restriction in
interstate commerce on all pre-charged appliances.
C. Establishing 40 CFR Part 82 Subpart I
EPA intends to house the proposed requirements in a new subpart.
EPA intends to create 40 CFR Part 82 Subpart I, to be named Ban on
Refrigeration and Air-Conditioning Appliances Containing HCFCs. While
alternatively these proposed requirements could be contained within
existing subparts, particularly subpart A or subpart C, EPA believes a
new subpart is more appropriate. The requirements could be housed in
subpart A, but subpart A generally applies to bulk substances and not
finished goods. EPA could house the provisions in subpart C, since that
subpart includes a ban on the sale and distribution of certain products
manufactured with or containing HCFCs, but those provisions were
[[Page 78712]]
promulgated under CAA section 610. Given that EPA is using different
authority for these provisions and is structuring them somewhat
differently, EPA is planning to house these provisions separately for
ease of reference.
D. Air-Conditioning and Refrigeration Appliances Banned From Sale or
Distribution, or Offer for Sale or Distribution, in Interstate Commerce
EPA is proposing that any air-conditioning or refrigeration
appliances containing HCFC-22, HCFC-142b, or any blend that contains
one or both of these controlled substances, would be subject to the ban
proposed through this action. EPA requests comment on banning the sale
or distribution, or offer for sale or distribution, of these appliances
recognizing the wide availability of substitutes. EPA additionally
requests comments on whether the types of appliances listed below in
this section comprise the universe of affected appliances that
currently or potentially could use HCFC-22, HCFC-142b, or any blend
that contains one or both of these controlled substances as a
refrigerant.
Refrigeration and air-conditioning end-uses typically use a
refrigerant in a vapor compression cycle to cool and/or dehumidify a
substance or space, like a refrigerator cabinet, room, office building,
or warehouse. HCFC-22 is a popular refrigerant that is commonly used in
a variety of refrigeration and air conditioning equipment including
both industrial and residential applications, most of which are not
pre-charged but are instead charged onsite. HCFC-22 can be used in a
large range of equipment including:
Residential Uses
Window air conditioning units.
Dehumidifiers.
Central air conditioners.
Air-to-air heat pumps.
Ground-source heat pumps.
Ductless air conditioners.
Chest or upright freezers.
Commercial and Industrial Uses
Packaged air conditioners and heat pumps.
Chillers.
Retail food refrigeration.
Cold storage warehouses.
Industrial process refrigeration.
Transport refrigeration.
HCFC-22 is often used as a component in refrigerant blends that
contain several chemicals. Some common end uses for refrigerant blends
that contain HCFC-22 are:
Retail food refrigeration.
Cold storage warehouses.
Industrial process refrigeration.
Transport refrigeration.
As a refrigerant, HCFC-142b is rarely used by itself; it is
generally a component of a refrigerant blend. For example, it is part
of a blend known as R-409A, which also includes HCFC-22 and can be used
in some applications.
Readers interested in substitutes for CFC refrigerants should
review the Significant New Alternatives Policy (SNAP) program which
evaluates and regulates substitutes for ODS. Section 612 authorizes EPA
to identify and publish lists of acceptable and unacceptable
substitutes for class I or class II ozone-depleting substances. The
Administrator has determined a large number of alternatives are
acceptable because they provide limited risk to human health and the
environment. The purpose of SNAP is to allow a safe, smooth transition
away from ODS by identifying as acceptable substitutes that offer lower
overall risks to human health and the environment than the ODS they
replace and by prohibiting substitutes that provide significantly
greater risk than other substitutes that are available. Additional
information concerning substitutes specifically for air-conditioning
and refrigeration applications can be found at: http://www.epa.gov/ozone/snap/refrigerants/index.html.
1. Resale of Used Air-Conditioning and Refrigeration Appliances in
Interstate Commerce
This proposed rule concerns only the sale or distribution, and
offer for sale or distribution, of newly manufactured appliances. This
action is not intended to govern the sale or distribution, or offer for
sale or distribution, of any previously owned or used appliances. EPA
believes appliances previously owned or used should continue to be
available in interstate commerce. However, EPA is concerned with the
potential for appliances to be marked as previously owned and used when
those appliances were actually newly manufactured. Therefore, we are
requesting comments on whether we can continue to permit the sale or
distribution, and offer for sale or distribution, of used appliances
while maintaining the integrity of this proposal. EPA requests comments
on whether there is a need for additional requirements to distinguish
between newly manufactured and previously manufactured appliances.
2. Servicing Air-Conditioning and Refrigeration Appliances
This proposed rule does not affect the servicing of air-
conditioning or refrigeration appliances manufactured prior to January
1, 2010. Servicing is regulated under other authorities, notably 40 CFR
part 82, subpart F. EPA believes it is necessary to continue to permit
the servicing of air-conditioning and refrigeration appliances
manufactured prior to January 1, 2010, to ensure a smooth transition to
alternatives. As noted above, regardless of whether EPA takes final
action on this proposed rule, it will be illegal to produce or import
HCFC-22, HCFC-142b or blends containing one or both of these controlled
substances to charge appliances manufactured after January 1, 2010. If
new appliances that use these banned refrigerants are available for
sale after this time, there may be a temptation to illegally recharge
them with the banned refrigerants. This could increase the potential
for poor servicing practices resulting in leaks or venting in violation
of the Subpart F prohibitions.
3. Identifying Banned Appliances
The term ``appliance'' is defined in section 601 of the CAAA and in
EPA's regulations at 40 CFR part 82, subpart F. EPA is proposing to
apply the same definition of ``appliance'' as appears in subpart F: any
device which contains and uses a refrigerant and which is used for
household or commercial purposes, including any air conditioner,
refrigerator, chiller, or freezer. Further, EPA is proposing to use the
same definition of ``refrigerant'' that appears in 40 CFR part 82,
subpart F: any substance consisting in part or whole of a class I or
class II ozone-depleting substance that is used for heat transfer
purposes and provides a cooling effect. EPA believes that consistency
in these definitions benefits the regulated community. For further
clarification, EPA is providing below a listing of appliances that
would be banned by this proposal, if they were pre-charged with HCFC-
22, HCFC-142b or a blend containing one or both of these controlled
substances. EPA notes that most of the pre-charged appliances are
characterized as small appliances (e.g.; window air conditioning units,
upright freezers, refrigerators) and that some of these (e.g.;
refrigerators) have already transitioned away from HCFCs. However, EPA
is including other appliances that commonly use HCFC refrigerants as
well in case some significant change in industry and/or shipping
practices results in pre-charging new categories of appliances.
[[Page 78713]]
EPA believes this is important both to ensure that EPA is not
inadvertently excluding appliances that should be included and in
recognition that business practices do change. Therefore, while certain
items are not practical to pre-charge now, there may be significant
changes at some future date. This is not intended to be an exhaustive
list but can be used as guidance when for the reader to judge whether
there is any potential now or in the future for a particular appliance
to be covered by this proposal if it were sold or distributed in
interstate commerce pre-charged. For example, EPA is not aware of any
industrial process refrigeration appliances sold or distributed pre-
charged, but for completeness, industrial process refrigeration
appliances, chillers, and other appliances not currently sold or
distributed pre-charged are included:
Air-to-air heat pumps.
Chest or upright freezers.
Chillers.
Cold storage warehouses.
Ductless air conditioners.
Dehumidifiers.
Ground-source heat pumps.
Industrial process refrigeration.
Packaged air conditioners and heat pumps.
Retail food refrigeration.
Transport refrigeration.
Unitary air conditioners.
Window air conditioning units.
Furthermore, EPA is also including pre-charged components for
appliances, such as line-sets and pre-charged compressors. When sold
charged with refrigerants, these components present all the same
concerns as the pre-charged appliances. EPA requests comments on using
the definitions of appliance and refrigerant that appears in subpart F
to determine what is subject to this proposed ban. EPA further requests
comments on including pre-charged components.
4. Ban on Sale or Distribution in Interstate Commerce
EPA has previously banned the sale or distribution, and offer for
sale or distribution in interstate commerce, of certain products
containing or manufactured with class II substances, including most
pressurized dispensers and plastic foam products (58 FR 69637). EPA has
also previously banned the sale or distribution, and offer for sale or
distribution in interstate commerce, of air-conditioning and
refrigeration appliances containing class I substances (66 FR 57512).
Consistent with those previous actions, EPA is proposing to apply the
term ``interstate commerce'' to the product's entire distribution chain
up to and including the point of sale to the ultimate consumer.
EPA's interpretation of interstate commerce for this purpose does
not cover the sale, distribution, or offer of sale or distribution of
an appliance if the appliance is completely manufactured, distributed,
and sold without ever crossing state lines. However, to avoid coverage
by this proposed rulemaking, the appliance must be manufactured,
distributed, and sold exclusively within a particular state, and also
all of the raw materials, components, equipment, and labor that went
into the manufacturing, distributing, selling, or offering for sale or
distribution of such a product originated within that state as well.
The sale and distribution of the affected appliance includes every
sale and distribution up to and including the sale to the ultimate
consumer and all these sales would need to occur without ever crossing
a state line for the product to be considered not part of interstate
commerce and thus not banned by this proposed rulemaking. This is
consistent with the sales restriction promulgated under section 610 and
housed at 40 CFR Part 82 subpart C. EPA requests comments on banning
the sale or distribution or offer for sale or distribution of these
appliances in interstate commerce.
5. Imports and Exports
EPA intends to treat both the domestic sale or distribution of any
appliance imported into the United States, and the domestic sale or
distribution of any appliance intended for ultimate export from the
United States, as acts of interstate commerce within the meaning of
today's proposal. This interpretation was previously discussed by EPA
in the regulations implementing the ban on Nonessential Products
containing or manufactured with a class II substance (58 FR 69638). The
sale or distribution, or offer for sale or distribution, of imported
products or products destined for export within the scope of this
proposal would be subject to the same restrictions as the sale or
distribution, or offer of sale or distribution, of products within the
scope of that Nonessential Products ban. EPA is not proposing to
regulate foreign commerce through this action. These proposed
requirements would only apply to interstate commerce and would only
affect appliances that would be in interstate commerce within the
borders of the United States including those that would be in
interstate commerce prior to export or subsequent to import. EPA
requests comments regarding the import and export of banned appliances.
6. Sale and Distribution of Products Manufactured Prior to January 1,
2010
EPA recognizes that air-conditioning and refrigeration appliances
containing HCFC-22, HCFC-142b or a blend where either or both of these
substances are components, could be manufactured prior to January 1,
2010, but may not have reached the ultimate consumer by January 1,
2010. EPA contemplated mechanisms to either permit for a `sell through'
or `grandfather' appliances that were previously manufactured and
placed into an initial inventory--similar to the approaches in 40 CFR
Part 82, subpart C. While such an approach could smooth the transition
to non-ODS pre-charged appliances, given that this proposed regulation
is based on meeting the criteria established by Section 615, EPA is
concerned that any ``sell through'' or ``grandfathering'' provision
would provide less environmental protection. Therefore, EPA would only
adopt such an approach if it were very limited and narrowly defined. In
addition, EPA is proposing that these provisions have an effective date
of January 1, 2010 rather than 60 days from the date that the final
rule is published in the Federal Register. EPA chose this date partly
because it corresponds with other milestones, mostly notably the
implementation of the reduction to 75 percent below the United States
baseline for production and consumption of all HCFCs. However, a
secondary reason for proposing this date is to provide adequate
planning time for the various stakeholders to take actions to permit
for a smooth transition to non-HCFC pre-charged appliances. EPA
requests comments on whether the Agency should adopt a narrowly
tailored sell-through or grandfathering provision.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because OMB believes
that it may raise novel legal or policy issues. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
Rather, this rule proposed to ban the sale or
[[Page 78714]]
distribution of air-conditioning and refrigeration appliances
containing HCFC-22, HCFC-142b, or blends containing one or both of
these substances, beginning January 1, 2010. However, the Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations at 40 CFR
part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB control number 2060-0498. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
part 9.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposal on small
entities, small entity is defined as: (1) An entity that is primarily
engaged in Chlorofluorocarbon gas, air conditioner, and refrigerator
importing, exporting and manufacturing, as defined by NAIC codes 333415
and 325120 (based on Small Business Size Standards.) See table below
for examples and additional details; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
This proposal will affect the following categories:
----------------------------------------------------------------------------------------------------------------
Category NAICS code SIC code Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Chlorofluorocarbon gas manufacturing....... 325120 2869 Chlorodifluoromethane manufacturers;
Dichlorofluoroethane manufacturers;
Chlorodifluoroethane manufacturers.
Chlorofluorocarbon gas importers........... 325120 2869 Chlorodifluoromethane importers;
Dichlorofluoroethane importers;
Chlorodifluoroethane importers.
Chlorofluorocarbon gas exporters........... 325120 2869 Chlorodifluoromethane exporters;
Dichlorofluoroethane exporters;
Chlorodifluoroethane exporters.
Manufacturers of air conditioners and 333415 ............ Air-Conditioning Equipment and
refrigerators. Commercial and Industrial
Refrigeration Equipment Manufacturing.
Importers of air conditioners and 333415 3585 Air-Conditioning Equipment and
refrigerators. Commercial and Industrial
Refrigeration Equipment Manufacturing.
----------------------------------------------------------------------------------------------------------------
After considering the economic impacts of the proposed rule on small
entities, EPA certifies that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. None
of the entities affected by this rule are considered small as defined
by the NAICS Codes listed above. We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The requirements already established at Sec. 82.16(c) will make it
unlawful to produce or import HCFC-22 or HCFC-142b on or after January
1, 2010 for use in refrigeration or air-conditioning appliances
manufactured on or after that date. The practical result is that
already domestic manufacturers of air-conditioning and refrigeration
appliances will not be able to charge newly manufactured appliances
with newly produced or imported HCFC-22 or HCFC-142b, and thus will not
be introducing appliances containing these newly produced substances
into interstate commerce. Thus, this rule is not subject to the
requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. As stated above,
this rule affects manufacturers of air-conditioning and refrigeration
appliances, not small governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This proposed rule 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,
as specified in Executive Order 13132. Today's proposal is expected to
primarily affect producers, importers and exporters of air-conditioning
and refrigeration appliances. Thus, the requirements of section 6 of
the Executive Order do not apply. In the spirit of Executive Order
13132, and consistent with EPA policy to promote communications between
EPA and State and local governments, EPA specifically solicits comment
on this proposed rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule
affects manufacturers of air-conditioning and refrigeration appliances,
not tribal governments. Thus, Executive Order 13175 does not apply to
this action. EPA specifically solicits additional comment on this
proposed action from tribal officials.
G. Applicability of Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because
[[Page 78715]]
it is not economically significant as defined in EO 12866. The Agency
nonetheless has reason to believe that the environmental health or
safety risk addressed by this action may have a disproportionate effect
on children. Depletion of stratospheric ozone results in greater
transmission of the sun's ultraviolet (UV) radiation to the earth's
surface. The following studies describe the effects on children of
excessive exposure to UV radiation: (1) Westerdahl J, Olsson H, Ingvar
C. ``At what age do sunburn episodes play a crucial role for the
development of malignant melanoma,'' Eur J Cancer 1994: 30A: 1647-54;
(2) Elwood JM Japson J. ``Melanoma and sun exposure: an overview of
published studies,'' Int J Cancer 1997; 73:198-203; (3) Armstrong BK,
``Melanoma: childhood or lifelong sun exposure,'' In: Grobb JJ, Stern
RS Mackie RM, Weinstock WA, eds. ``Epidemiology, causes and prevention
of skin diseases,'' 1st ed. London, England: Blackwell Science, 1997:
63-6; (4) Whieman D., Green A. ``Melanoma and Sunburn,'' Cancer Causes
Control, 1994: 5:564-72; (5) Heenan, PJ. ``Does intermittent sun
exposure cause basal cell carcinoma? A case control study in Western
Australia,'' Int J Cancer 1995; 60: 489-94; (6) Gallagher, RP, Hill,
GB, Bajdik, CD, et al. ``Sunlight exposure, pigmentary factors, and
risk of nonmelanocytic skin cancer I, Basal cell carcinoma.'' Arch
Dermatol 1995; 131: 157-63; (7) Armstrong, DK. ``How sun exposure
causes skin cancer: an epidemiological perspective,'' Prevention of
Skin Cancer. 2004. 89-116. The public is invited to submit or identify
peer-reviewed studies and data, of which EPA may not be aware, that
assess results of early life exposure to UV radiation.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The proposed
regulation solely impacts the sale or distribution, or offer for sale
or distribution of pre-charged appliances. Further, we have concluded
that this rule is not likely to have any adverse energy effects.
I. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. By restricting the sale and distribution of
appliances charged with HCFC-22 and HCFC-142b, emissions of these
ozone-depleting substances will be avoided lessening the adverse human
health effects for the entire population.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons, Exports,
Hydrochlorofluorocarbons, Imports, Reporting and recordkeeping
requirements.
Dated: December 11, 2008.
Stephen L. Johnson,
Administrator.
40 CFR part 82 is proposed to be amended 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, 7671-7671(q)
2. A new subpart I is added to read as follows:
Subpart I--Ban on Refrigeration and Air-Conditioning Appliances
Containing HCFCs
Sec.
82.300 Purpose.
82.302 Definitions.
82.304 Prohibitions.
82.306 Prohibited products.
Subpart I--Ban on Refrigeration and Air-Conditioning Appliances
Containing HCFCs
Sec. 82.300 Purpose.
The purpose of this subpart is to protect stratospheric ozone by
restricting the sale and distribution of HCFC appliances under
authority of section 615 of the Clean Air Act as amended in 1990.
Sec. 82.302 Definitions.
As used in this subpart, the term:
Administrator means the Administrator of the United States
Environmental Protection Agency or an authorized representative.
Appliance means any device which contains and uses a refrigerant
and which is used for household or commercial purposes, including any
air conditioner, refrigerator, chiller, or freezer.
Class I substance means any controlled substance designated as
class I in 40 CFR part 82, appendix A to subpart A.
Class II substance means any controlled substance designated as
class II in 40 CFR part 82, appendix B to subpart A.
Consumer, when used to describe a person taking action with regard
to a product, means the ultimate purchaser, recipient or user of a
product.
Distributor, when used to describe a person taking action with
regard to a product, means:
(1) The seller of a product to a consumer or another distributor;
or
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(2) A person who sells or distributes that product in interstate
commerce for export from the United States.
Hydrochlorofluorocarbon means any substance listed as class II in
40 CFR part 82, appendix B to subpart A.
Person means any individual or legal entity, including an
individual, corporation, partnership, association, state, municipality,
political subdivision of a state, Indian tribe; any agency, department,
or instrumentality of the United States; and any officer, agent, or
employee thereof.
Pre-charged appliance means any appliance charged with refrigerant
prior to sale or distribution, or offer for sale or distribution in
interstate commerce.
Pre-charged appliance component means any portion of a pre-charged
appliance including but not limited to condensers and line sets that
are charged prior to sale or distribution or offer for sale or
distribution in interstate commerce.
Product means an item or category of items manufactured from raw or
recycled materials which is used to perform a function or task.
Refrigerant means, for purposes of this subpart, any substance
consisting in part or whole of a class I or class II ozone-depleting
substance that is used for heat transfer purposes and provides a
cooling effect.
Sec. 82.304 Prohibitions.
Effective January 1, 2010, no person may sell or distribute, or
offer to sell or distribute, in interstate commerce any product
identified in Sec. 82.306.
Sec. 82.306 Prohibited products.
Effective January 1, 2010, the following products are subject to
the prohibitions specified under Sec. 82.304--
(a) Any air-conditioning or refrigeration appliance manufactured on
or after January 1, 2010 containing HCFC-22, HCFC-142b or a blend
containing one or both of these controlled substances,
(b) Any air-conditioning or refrigeration appliance manufactured on
or after January 1, 2010 that is suitable only for use with newly
produced HCFC-22, HCFC-142b or a blend containing one or both of these
controlled substances, and
(c) Any pre-charged appliance component for air-conditioning or
refrigeration appliances manufactured on or after January 1, 2010
containing HCFC-22, HCFC-142b, or a blend containing one or both of
these controlled substances, except
(d) This prohibition shall not apply where the HCFC-22 or HCFC-142b
(including the HCFC-22 or HCFC-142b contained in any blend) is used,
recovered and reclaimed.
[FR Doc. E8-29999 Filed 12-22-08; 8:45 am]
BILLING CODE 6560-50-P