
[Federal Register: December 23, 2008 (Volume 73, Number 247)]
[Proposed Rules]               
[Page 78705-78716]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de08-29]                         

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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: a-and-r-Docket@epa.gov.
     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, newberg.cindy@epa.gov.

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

[[Page 78716]]

    (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
