Protection of Stratospheric Ozone: Ban on the Sale or Distribution of Pre-Charged Appliances, 66450-66467 [E9-29560]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 239 (Tuesday, December 15, 2009)]
[Rules and Regulations]
[Pages 66450-66467]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29560]



[[Page 66449]]

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

Part III





Environmental Protection Agency





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



40 CFR Part 82



Protection of Stratospheric Ozone: Ban on the Sale or Distribution of 
Pre-Charged Appliances; Final Rule

Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / 
Rules and Regulations

[[Page 66450]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2007-0163; FRL-9091-9]
RIN 2060-AN58


Protection of Stratospheric Ozone: Ban on the Sale or 
Distribution of Pre-Charged Appliances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: This final rule bans 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 banning the sale or distribution 
of air-conditioning and refrigeration appliance components that are 
pre-charged with HCFC-22, HCFC-142b, or blends containing one or both 
of these controlled substances as the refrigerant. These prohibitions 
apply only to appliances and components manufactured on or after 
January 1, 2010.

DATES: This final rule is effective on January 1, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. HQ-OAR-2007-0163. All documents in the docket are listed on the 
https://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through https://www.regulations.gov or in hard copy at the Air and Radiation Docket; 
EPA West; Room 3334; 1301 Constitution Avenue NW., Washington, DC 
20460. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the OAR Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Julius Banks, EPA, Stratospheric 
Protection Division, Office of Atmospheric Programs, Office of Air and 
Radiation (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
(202) 343-9870, banks.julius@epa.gov.

SUPPLEMENTARY INFORMATION: 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 establishes a ban on sale or 
distribution in interstate commerce of air-conditioning and 
refrigeration appliances, as well as appliance components that are pre-
charged with HCFC-22, HCFC-142b, or blends containing one or both of 
these controlled substances. It does not, however, affect the sale or 
distribution of appliances or components manufactured before January 1, 
2010.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. EPA is 
issuing this final rule under section 307(d)(1) of the Clean Air Act, 
which states: ``The provisions of section 553 through 557 * * * of 
Title 5 shall not, except as expressly provided in this section, apply 
to actions to which this subsection applies.'' Thus, section 553(d) of 
the APA does not apply to this rule. EPA is nevertheless acting 
consistently with the policies underlying APA section 553(d) in making 
this rule effective on January 1, 2010. APA section 553(d) provides an 
exception for any action for which the agency provides good cause found 
and published within the rule. EPA finds that there is good cause to 
make this rule effective January 1, 2010. This final rule accompanies a 
second rule, ``Protection of Stratospheric Ozone: Adjustments to the 
Allowance System for Controlling HCFC Production, Import, and Export'' 
(EPA Docket: EPA-HQ-OAR-2008-0496) which contains interrelated 
requirements. The effective date of the other rule is January 1, 2010. 
Having two different effective dates for the two rules would create a 
discontinuity and potentially generate confusion among the regulated 
community. The interrelated nature of the two rules is discussed in 
Section II of the preamble.

Table of Contents

I. General Information
    A. Does This Action Apply to Me?
    B. Background
II. Final Action
    A. Establishing 40 CFR Part 82, Subpart I
    B. Authority To Prohibit Sale or Distribution, or Offer for Sale 
or Distribution, of Specific Types of Appliances
    C. Criteria and Conditions Established Under Sec.  615 of CAAA
    D. Defining Air-Conditioning and Refrigeration Appliances and 
Pre-Charged Appliance Components
    i. Appliance
    ii. Pre-Charged Appliance Component
    iii. ``Manufactured'' and Date of ``Manufacture''
    E. Ban on Sale or Distribution or Offer for Sale or Distribution 
in Interstate Commerce
    i. Existing Inventories of Pre-Charged Appliances and Components 
Manufactured Prior to January 1, 2010
    ii. Use of Recovered and Reclaimed HCFC-22 and HCFC-142b
    iii. Sale and Distribution of Appliances and Components Without 
Refrigerant
    iv. Imports and Exports of Pre-Charged Appliances and Components
    v. Transhipments of Pre-Charged Appliances and Components
    vi. Existing Contracts or Plans for Pre-Charged Appliances and 
Components
    F. Costs Analysis and Small Business Economic Impacts
    i. What Are the Impacts On Stratospheric Ozone Avoided through 
This Final Action?
    ii. What Factors Will Influence the Costs of Pre-Charged 
Appliances Charged With Substitutes?
    iii. Impacts on the General Public
    iv. Implications for Other Markets
    v. In the Absence of This Action, Are There Impacts Associated 
With Unequal Treatment of Stakeholders?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    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. The National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. The Congressional Review Act


[[Page 66451]]



I. General Information

A. Does This Action Apply to Me?

    This final rule will affect the following categories:

----------------------------------------------------------------------------------------------------------------
                  Category                     NAICS code       SIC code        Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Contractors and Servicing..................          238220      1711, 7623  Plumbing, Heating, and Air-
                                                                              Conditioning Contractors.
Manufacturers of air conditioners and                333415            3585  Air-Conditioning Equipment and
 refrigerators.                                                               Commercial and Industrial
                                                                              Refrigeration Equipment
                                                                              Manufacturing.
Air-Conditioning Equipment and Supplies              423730            5075  Air-conditioning (condensing unit,
 Merchant Wholesalers.                                                        compressors) merchant wholesalers.
Electrical and Electronic Appliance,                 423620            5064  Air-conditioning (room units)
 Television, and Radio Set Merchant                                           merchant wholesalers.
 Wholesalers.
Importers of air conditioners and                    333415            3585  Air-Conditioning Equipment and
 refrigerators.                                                               Commercial and Industrial
                                                                              Refrigeration Equipment
                                                                              Manufacturing.
----------------------------------------------------------------------------------------------------------------

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.

B. 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 and 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 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 CAA 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 40 CFR 82.16(c) make it 
unlawful to produce or import HCFC-22 or HCFC-142b on or after January 
1, 2010, for use

[[Page 66452]]

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 new appliances containing 
these substances into interstate commerce.

II. Final Action

    EPA is establishing 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\1\, beginning January 1, 2010. The prohibition includes 
fully assembled appliances that are sold pre-charged with HCFC-22 or 
HCFC-142b (such as window air-conditioning units), as well as 
appliances that are field assembled with HCFC-22 or HCFC-142b (such as 
residential split systems and supermarket refrigeration equipment). 
This prohibition extends to imported appliances as well as U.S. 
manufactured appliances that are destined for export. EPA is also 
banning the sale or distribution in interstate commerce of appliance 
components that are pre-charged with HCFC-22 or HCFC-142b beginning 
January 1, 2010. The prohibitions do not apply to pre-charged 
appliances or pre-charged appliance components that are manufactured 
prior to January 1, 2010. Pre-charged appliances and components that 
have been manufactured prior to January 1, 2010 may be sold and 
distributed in interstate commerce.
---------------------------------------------------------------------------

    \1\ Throughout this action, where EPA refers to HCFC-22 or HCFC-
142b, it also refers to blends containing one or both of those 
HCFCs.
---------------------------------------------------------------------------

    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 
industrial and residential applications, most of which are field 
installed and charged on-site. 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.
     Refrigerated transport.
     Public transport (e.g., buses, trains, subway air-
conditioning).
    HCFC-22 is often used as a component in refrigerant blends that 
contain several chemical compounds. HCFC-22 refrigerant blends are used 
in various industrial, commercial, and residential end uses including: 
Retail food refrigeration, cold storage warehouses, industrial process 
refrigeration (IPR), and transport refrigeration appliances. As a 
refrigerant, HCFC-142b is rarely used by itself; it is generally a 
component of a refrigerant blend. For example, R-401A (Suva[supreg] 
MP39), R-406A (Autofrost GHG-X3), R-414B (Hot Shot[supreg]), Freeze-
12TM are all refrigerant blends containing HCFC-22 and/or 
HCFC-142b.
    Readers interested in substitutes for ODS refrigerants should 
review the Significant New Alternatives Policy (SNAP) program which 
evaluates and determines whether a substitute for an ODS in a specific 
end-use may be used safely in comparison to other available 
substitutes. Section 612 authorizes EPA to identify and publish lists 
of acceptable and unacceptable substitutes for class I or class II 
ozone-depleting substances. EPA has determined that 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 for those substances or processes 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: https://www.epa.gov/ozone/snap/refrigerants/.
    This final rule does not restrict or prohibit the sale of 
appliances containing HCFC-22 or HCFC-142b as blowing agents in closed 
cell insulation foam. However, EPA has promulgated SNAP Rule 13: The 
use of HCFC-22 and HCFC-142b in foams/listing of ozone depleting 
substitutes in foam blowing (72 FR 14432), finding HCFC-22 and HCFC-
142b as unacceptable substitutes for HCFC-141b in the manufacture of 
commercial refrigeration, sandwich panels, slabstock, and other ``pour 
foam'' applications.
    This final 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 (i.e., section 608 regulations). Service and repair of 
existing equipment using HCFC-22 or HCFC-142b is not affected by this 
final rule. 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 non-ODS 
alternatives.
    This final rule prohibits the sale or distribution, and the offer 
for sale or distribution, in interstate commerce of air-conditioning 
and refrigeration appliances and their components containing HCFC-22 or 
HCFC-142b beginning January 1, 2010. The ban applies to appliances and 
components manufactured on or after January 1, 2010, but not to 
appliances or components manufactured before that date. This final 
rule, combined with the accompanying final rule titled ``Protection of 
Stratospheric Ozone: Adjustments to the Allowance System for 
Controlling HCFC Production, Import, and Export'' (EPA Docket: EPA-HQ-
OAR-2008-0496) published elsewhere in this issue of the Federal 
Register, which we refer to below as the ``allocation rulemaking,'' 
will have the following effects on the sale, distribution, and 
installation of air-conditioning and refrigeration products charged 
with HCFC-22 or HCFC-142b.
     Sale and distribution of appliances pre-charged with HCFC-
22 or HCFC-142b is allowed for self-contained, factory-charged 
appliances such as pre-charged window units, packaged terminal air 
conditioners (PTACs), and some commercial refrigeration units, if 
manufactured before January 1, 2010. The pre-charged appliance rule 
does not prohibit sale and distribution of pre-2010 inventory (i.e., 
stockpiled inventories).
     Sale and distribution of appliances pre-charged with HCFC-
22 or HCFC-142b is not allowed for self-contained, factory-charged 
appliances such as pre-charged window units, packaged terminal air 
conditioners (PTACs), and some commercial refrigeration units, if

[[Page 66453]]

manufactured on or after January 1, 2010. This prohibition, which is 
contained in the pre-charged appliance rule, applies regardless of when 
the refrigerant was produced and whether it is virgin or reclaimed.\2\ 
Under the allocation rule, neither stockpiled HCFC-22 produced prior to 
January 1, 2010, nor new HCFC-22 produced after that date can be used 
to manufacture new appliances on or after January 1, 2010.
---------------------------------------------------------------------------

    \2\ At 40 CFR 82.152, EPA has defined reclaim refrigerant to 
mean to reprocess refrigerant to all of the specifications in 
appendix A to 40 CFR part 82, subpart F (based on ARI Standard 700-
1995, Specification for Fluorocarbons and Other Refrigerants) that 
are applicable to that refrigerant and to verify that the 
refrigerant meets these specifications using the analytical 
methodology prescribed in section 5 of appendix A of 40 CFR part 82, 
subpart F.
---------------------------------------------------------------------------

     Sale and distribution of appliance components pre-charged 
with HCFC-22 or HCFC-142b is allowed if the components (e.g., 
condensing units, line sets, and coils that are charged with 
refrigerant) were manufactured before January 1, 2010. The pre-charged 
appliance rule does not prohibit sale and distribution of pre-2010 
inventory (i.e., stockpiled inventories).
     Pre-charged appliance components manufactured before 
January 1, 2010 may be used to service appliances manufactured before 
January 1, 2010, but may not be assembled to create new appliances 
unless there is no use of virgin HCFC-22 or HCFC-142b, in the 
components or otherwise. The allocation rule prohibits use of virgin 
HCFC-22 and HCFC-142b in manufacturing new appliances.
     There is no exemption from the pre-charged appliance rule 
for the sale or distribution of pre-charged appliances and pre-charged 
components that are charged with reclaimed HCFC-22 or HCFC-142b 
refrigerant. In other words, the provisions banning sale and 
distribution apply equally regardless of whether the appliances or 
components contain virgin or reclaimed refrigerant.
     Under the allocation rule, virgin HCFC-22 and HCFC-142b 
may only be used to service existing appliances. Virgin HCFC-22 and 
HCFC-142b may not be used to manufacture new pre-charged appliances or 
appliance components. Virgin HCFC-22 and HCFC-142b also may not be used 
to charge new appliances assembled onsite on or after January 1, 2010, 
though new appliances (not pre-charged) may be charged with reclaimed 
refrigerant.
     EPA is providing an exception to the allocation rule that 
allows virgin HCFC-22 to be used in the onsite ``manufacture'' of 
appliances for a particular project between January 1, 2010, and 
December 31, 2011, if the components have been specified for use at 
that project under a building permit or contract dated before January 
1, 2010.
     Under the allocation rule, HCFC-22 produced prior to 
January 1, 2010, may be used until January 1, 2015, for the manufacture 
of thermostatic expansion valves (TXVs).
     The sale and distribution of used appliances is not 
affected by either rule.

A. Establishing 40 CFR Part 82, Subpart I

    Today's final rule prohibits the sale or distribution and the offer 
for sale or distribution of pre-charged appliances and appliance 
components in interstate commerce in a new subpart I to 40 CFR part 82. 
The new subpart is titled Ban on Refrigeration and Air-Conditioning 
Appliances Containing HCFCs. A new subpart is warranted since existing 
subparts dealing with the phaseout of production and consumption of 
controlled substances generally apply to bulk substances and not 
finished goods.
    As discussed in the NPRM, EPA considered amending subpart C, since 
that subpart includes a ban on the sale and distribution of certain 
products manufactured with or containing HCFCs, as well as air-
conditioning and refrigeration appliances containing CFCs as the 
refrigerant, but those provisions were promulgated under CAA section 
610. Given that EPA is using different authority for these provisions 
and is structuring them somewhat differently, EPA finds that for ease 
of reference, these new provisions should be housed in a new and easily 
identifiable subpart in the CFR.

B. Authority To Prohibit Sale or Distribution, or Offer for Sale or 
Distribution, of Specific Types of Appliances

    EPA proposed to establish regulations under authority of section 
615 of the Act, 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 and 
components containing HCFC-22 or HCFC-142b containing one or both of 
these controlled substances. EPA also proposed 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 or HCFC-
142b.
    Section 301(a) authorizes EPA to promulgate regulations as are 
necessary to carry out its functions under the Clean Air Act, such as 
issuing prohibitions and standards. Further, section 615 of the CAA 
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.

    For the reasons discussed below, EPA has determined that the 
practice of selling and distributing pre-charged air-conditioning and 
refrigeration appliances and components containing HCFC-22 or HCFC-142b 
may reasonably be anticipated to affect ozone in the stratosphere, and 
such effect may reasonably be anticipated to endanger public health.

C. 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.
    EPA proposed to conclude that, beginning January 1, 2010, the 
practice of selling and distributing pre-charged air-conditioning and 
refrigeration appliances and pre-charged appliance components 
containing HCFC-22 or HCFC-142b, as well as air-conditioning and 
refrigeration appliances suitable for use solely with newly produced 
HCFC-22 or HCFC-142b may reasonably be anticipated to affect ozone in 
the stratosphere, and such effect may reasonably be anticipated to 
endanger public health. EPA sought comment on this proposed conclusion. 
EPA explained that the impacts on stratospheric ozone resulting from 
continuing these activities can be delineated into impacts from the 
continued production of HCFC-22 or HCFC-142b 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. These impacts are discussed in this notice.

[[Page 66454]]

    Three commenters stated that EPA must ensure that its findings 
regarding public health are well supported, documented in the record, 
and clearly meet the statutory criteria for an endangerment finding, 
under section 615. These commenters did not find EPA's finding to be 
well supported and instead said it was based on general assumptions, 
incomplete analyses, and extrapolations of calculations made by one 
consultant in one brief analysis. Other commenters found that the 
Agency's approach is an appropriate exercise of section 615 authority 
as it would fill a regulatory gap and is well-tailored to the section 
615 endangerment finding.
    After considering the comments, EPA is finalizing its proposed 
conclusion that the practice of selling and distributing air-
conditioning and refrigeration appliances containing HCFC-22 or HCFC-
142b may reasonably be anticipated to affect ozone in the stratosphere, 
and that such effect may reasonably be anticipated to endanger public 
health. Specific concerns raised by commenters regarding the ``Draft 
Memorandum on Costs Associated with Refrigerant Substitution from R-22 
to R-410A in Pre-Charged Equipment Imports'' and the basis for 
estimates used in that document are discussed in the response to 
comments document available in the docket.
    In reaching our conclusion, we considered both of the criteria 
contained in section 615. The first criterion is whether the substance, 
practice, process, or activity in question may reasonably be 
anticipated to affect the stratosphere. 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 
``Costs Analysis and Small Business Economic Impacts,'' EPA has 
prepared an estimate of the reduction in HCFC emissions attributable to 
a ban on pre-charged appliances. EPA estimates that the projected 
emissions of HCFC-22 between January 1, 2010 and December 31, 2019, in 
the absence of a ban on pre-charged appliances (based in part on charge 
sizes and estimated leak rates of pre-charged appliances), is 
approximately 4,070 ODP weighted tons. For purposes of approximate 
comparison, an assumed average of 407 ODP tons per year of averted 
emissions during this time period is approximately 11 percent of the 
3,810 ODP ton U.S. compliance cap for consumption of all HCFCs each 
year during 2010-2014, and 27 percent of the cap during 2015-2019. 
Additionally, the avoided emissions of 4,070 ODP weighted tons is 
approximately 9 percent of all HCFC emissions projected for the United 
States for this same time period. These estimated reductions assume 
that HCFCs to be used for the US market will not be diverted to other 
markets in the world.
    EPA believes that a reduction in the amount of the installed base 
of HCFC appliances reduces potential emissions and lessens 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 in the US. This 
approach is consistent with the previous actions taken to restrict 
applications of ozone-depleting substances where suitable substitutes 
exist. This action 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 pursue a more aggressive 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 in the U.S.
    The second criterion in section 615 is whether ``such effect'' may 
reasonably be anticipated to endanger public health or welfare. The 
phrase ``such effect,'' as used in section 615, could be read in the 
context of this action 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, EPA 
proposed 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. As further discussed below, EPA is 
finalizing this conclusion in this action. Therefore, it is not 
necessary to arrive at additional or definitive interpretations for 
purposes of this action. However, the following discussion briefly 
addresses the public health consequences of stratospheric ozone 
depletion generally as well as the stratospheric ozone depletion 
attributable to the specific practice of importing HCFC pre-charged 
appliances.
    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 ultraviolet (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 https://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 https://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 
https://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, and even death. 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,

[[Page 66455]]

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's analysis estimates that approximately 1,700 total cases of 
cancer (nonmelanoma and cutaneous malignant melanoma) and approximately 
9 premature mortalities in the United States would 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'') \3\ 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.
---------------------------------------------------------------------------

    \3\ HCFC-22 is also referred to as R-22, particularly where it 
is used in refrigeration and air-conditioning applications.
---------------------------------------------------------------------------

    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 UV radiation 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).
    Based on the discussion above of the two criteria contained in 
section 615, EPA concludes that beginning January 1, 2010, the practice 
of selling and distributing pre-charged air-conditioning and 
refrigeration appliances and pre-charged appliance components 
containing HCFC-22 or HCFC-142b, as well as air-conditioning and 
refrigeration appliances suitable for use solely with newly produced 
HCFC-22 or HCFC-142b may reasonably be anticipated to affect ozone in 
the stratosphere, and such effect may reasonably be anticipated to 
endanger public health.

D. Defining Air-Conditioning and Refrigeration Appliances and Pre-
Charged Appliance Components

    In the NPRM, EPA proposed that any air-conditioning or 
refrigeration appliances containing HCFC-22 or HCFC-142b would be 
subject to the proposed ban on the sale and distribution in interstate 
commerce if manufactured on or after January 1, 2010. EPA proposed that 
the ban include pre-charged components for appliances, such as line-
sets and pre-charged compressors, because such pre-charged components 
present the same concerns as pre-charged appliances.
i. Appliance
    Section 601 of the CAA defines the term ``Appliance'' to mean ``* * 
* any device which contains and uses a class I or class II substance as 
a refrigerant and which is used for household or commercial purposes, 
including any air conditioner, refrigerator, chiller, or freezer.'' For 
purposes of Subpart I, EPA proposed to use the definition of 
``appliance'' in EPA's refrigerant recycling and emissions reduction 
regulations at 40 CFR part 82, subpart F, which is identical to the 
statutory definition.
    EPA requested comment on using the definition of appliance that 
appears in subpart F to determine what would be subject to the proposed 
ban. In response to the Agency's request, commenters noted that they do 
not believe that every air-conditioning and refrigeration system--
regardless of size, use, application, complexity (such as an industrial 
process refrigeration system)--should be subject to the proposed rule 
in the same manner. Specifically, these commenters suggested that the 
scope of the appliances covered by the rule be revised to clearly 
exclude residential, commercial, and industrial process refrigeration 
systems that are not pre-charged when they leave the factory, but are 
designed to use HCFC-22 or HCFC-142b. The commenters requested that EPA 
clarify that ``any device which contains and uses a refrigerant'' would 
not include systems that can use refrigerants, but are not pre-charged.
    EPA agrees with comments stating that appliance be defined 
consistently with the previously promulgated definition of appliance at 
subpart F. EPA is noting, and later discusses in detail, that equipment 
(including residential, commercial, and industrial process 
refrigeration) that is not pre-charged with HCFC-22 or HCFC-142b is not 
covered under this rulemaking. EPA believes that consistency in these 
definitions benefits the regulated community. Failure to provide a 
consistent regulatory definition would likely lead to uncertainly in 
the refrigeration and air-conditioning supply and service sectors, 
countering the Agency's efforts to phase out use of HCFC-22 and HCFC-
142b in new installations.
    In order to provide regulatory clarity, this final rule applies the 
same definition of appliance that is found at CAA section 601 and 
promulgated at 40 CFR part 82, subpart F. The definition of 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.
    For further clarification, EPA considers the following equipment as 
appliances, some of which are typically pre-charged with HCFC-22 or 
HCFC-142b:
     Air-to-air heat pumps;
     Chest or upright freezers;
     Ductless air conditioners;
     Dehumidifiers;
     Ground-source heat pumps;
     Packaged air conditioners and heat pumps;
     Unitary air conditioners; and
     Window air-conditioning units.
    This listing is not intended to be exhaustive, but includes 
appliances that may be manufactured and shipped pre-charged with 
refrigerant.
ii. Pre-Charged Appliance Component
    In the NPRM, EPA proposed to define pre-charged appliance component 
as any portion of a pre-charged appliance including but not limited to 
condensers and line sets that are charged with refrigerant prior to 
sale or distribution or offer for sale or distribution in interstate 
commerce.
    EPA has not previously promulgated a definition of pre-charged 
appliance component. However, in an earlier rulemaking addressing the 
sales of pre-charged appliance components, the Agency stated that pre-
charged components are parts of but ``are clearly not 
appliances''(November 9, 1994; 59 FR 55912). Commenters noted that EPA 
provides similar language on its

[[Page 66456]]

refrigerant sales restriction factsheet, stating that EPA considers a 
``part'' to be ``any component or set of components that makes up less 
than an appliance. For example, this includes line sets, evaporators, 
or condensers that are not sold as part of a set from which one can 
construct a complete split system or other appliance. EPA considers a 
part to be ``pre-charged'' if it contains a CFC or HCFC that will 
become part of the operating charge of an appliance'' (https://www.epa.gov/ozone/title6/608/sales/sales.html).
    In proposing to define pre-charged appliance component, EPA 
requested comment regarding the universe of components that are 
typically manufactured and/or shipped pre-charged with HCFC-22 or HCFC-
142b. EPA received comment from major appliance and component 
manufacturers identifying equipment that is typically pre-charged with 
refrigerant, specifically HCFC-22. These manufacturers stated that 
components such as evaporator coils, condenser coils, compressors or 
line sets are often shipped pre-charged with HCFC-22. EPA received one 
request to add ``condensing units'' to the listed examples of pre-
charged appliance components. The remaining comments concerning the 
universe of pre-charged appliance components concerned the sale of 
inventoried components and did not address the actual definition of 
pre-charged appliance component.
    EPA has consistently stated its interpretation that components that 
make up an appliance such as condensers, evaporators, compressors, and 
line sets in themselves do not constitute appliances. EPA considers 
components (such as compressors, condensers, and evaporators) to be 
portions of the refrigerant circuitry without which the appliance would 
not be able to function in its intended purpose. When sold charged with 
refrigerants, these components present all the same concerns as the 
pre-charged appliances. However, a major appliance component, such as a 
condensing unit, is not an appliance. A condensing unit is not an air 
conditioner, refrigerator, chiller, or freezer that provides a cooling 
effect, but it is certainly a component of such equipment. In addition, 
it is conceivable that major components would have different dates of 
manufacture, making the equation of date of appliance manufacture with 
the date of component manufacture difficult if not impossible. By 
comparison, it is relatively simple to determine the date of 
manufacture for pre-charged appliances where the refrigerant circuitry 
is typically intact and charged, and the appliance is ready to serve 
its intended purpose at the point of manufacture (e.g., a window air 
conditioner).
    For further clarification, the following are components that in 
themselves do not satisfy the definition of appliance, but are 
typically pre-charged with HCFC-22 or HCFC-142b:
     Line sets;
     Condensing units;
     Compressors; and
     Coils.
    This listing is not intended to be exhaustive, but includes 
components that may be manufactured and shipped pre-charged with 
refrigerant.
    EPA is changing the proposed definition of pre-charged appliance 
component to add compressors, condensing units, and coils to the list 
of examples of appliance components that may be pre-charged with 
refrigerant as a part of the manufacturing process prior to the 
component's sale or distribution or offer for sale or distribution in 
interstate commerce. EPA is also changing the proposed definition to 
make clear that the definition is not limited to pre-charged appliance 
components found solely in pre-charged appliances. EPA intends the 
definition to include any appliance component that may be pre-charged 
prior to sale or distribution. Therefore, EPA is defining pre-charged 
appliance component to mean any portion of an appliance including but 
not limited to condensers, compressors, line sets, and coils, that is 
charged with refrigerant prior to sale or distribution or offer for 
sale or distribution in interstate commerce.
iii. ``Manufactured'' and ``Date of Manufacture''
    EPA did not propose a definition of ``manufactured'' in the NPRM. 
However, the term manufactured as it relates to the sale or 
distribution of pre-charged appliances and appliance components was 
discussed in detail in the preamble to the NPRM adjusting the allowance 
system for HCFC production, import, and export (73 FR 78680), which was 
published on the same day (December 23, 2008) as the NPRM for this 
final pre-charged appliance rule. That discussion of the term included 
four criteria for when an appliance would be considered 
``manufactured.'' Due to the volume of comments concerning manufacture 
and date of manufacture, EPA believes that further explanation of EPA's 
use of the term ``manufactured'' in the context of this action is 
warranted.
    The vast majority of comments received in response to the NPRM 
related to the sale of inventoried appliances and components that were 
manufactured prior to January 1, 2010, but would likely remain in 
inventories after 2010. EPA received comment that its understanding of 
the term ``manufactured'' is not consistent with previous conventions 
defining a product as ``manufactured'' when it leaves the 
manufacturer's final assembly process, is packed for shipment, and 
placed into initial inventory. Several commenters noted that they 
preferred a definition of manufactured under which, the date of 
manufacture is a finite date controlled by the manufacturer and is not 
dependent on the dealer network or purchase by the ultimate consumer.
    EPA received numerous comments from manufacturers and distributors 
of pre-charged appliances and components stating that the Agency should 
interpret ``date of manufacture'' for an appliance to conform to the 
date of manufacture of components, such as the date of condenser 
manufacture. These commenters recommended that EPA define the date of 
manufacture in terms of the date of manufacture displayed on name-plate 
marking, but no sooner than the date on which the assembly and end-of-
line testing of the equipment item in question are substantially 
completed or the equipment is shipped from the factory or put into the 
original equipment manufacturer's (OEM's) inventory, whichever occurs 
first.
    EPA believes that the concern expressed in many of the comments 
arises from a commingling of the definitions of the terms ``appliance'' 
and ``pre-charged appliance component.'' There are several reasons why 
EPA does not equate the date of component manufacture to the date of 
appliance manufacture. As previously stated, components in themselves 
do not satisfy the previously promulgated definition of appliance, 
which is identical to the statutory definition. Components likely have 
distinct individual manufacture dates and may be field installed months 
or even years after their manufacture. EPA's reliance on the date of a 
particular component's manufacture, as a means of determining when an 
appliance was manufactured, would lead to a patchwork approach that 
could create confusion. In addition, because components may have 
differing manufacture dates, such an approach would require the Agency 
to provide makeshift determinations as to which major component's 
manufacture date would determine the date of appliance manufacture.
    EPA is promulgating a definition in today's final rule stating that 
an appliance is ``manufactured'' on the date that the appliance meets 
four

[[Page 66457]]

criteria: (1) The appliance's refrigerant circuit is complete, (2) the 
appliance can function, (3) the appliance is charged with refrigerant, 
and (4) the appliance is ready for use for its intended purpose. Small 
appliances, such as refrigerators and window air-conditioners, thus are 
``manufactured'' while the appliance is at a manufacturing facility. 
For instance, a small appliance (such as a residential refrigerator) 
that has been pre-charged with refrigerant by the OEM has gone through 
the entire production line so that all mechanical and electrical 
procedures are complete, and is a ``stand-alone'' piece of equipment 
(i.e., it only needs to be plugged into an electrical outlet and turned 
on to function properly). For such appliances, EPA intends to treat the 
date identified on the appliance by the OEM as the date of manufacture.
    Under the definition of ``manufactured'' in today's final rule, 
appliances that are field charged or have the refrigerant circuit 
completed onsite (for example, residential split systems), regardless 
of whether additional refrigerant is added on-site or not, would not be 
``manufactured'' until installation of all of the components and other 
parts is completed and the appliance is charged with refrigerant. EPA 
will not consider such an appliance to be ``manufactured'' unless all 
four criteria of the definition are met. For such appliances, the date 
of manufacture may be determined by invoices, contracts, or service 
records indicating the date that the appliance manufacture was 
completed.
    For pre-charged components of appliances, EPA considers the 
component to be ``manufactured'' on the date that the OEM has 
physically completed assembly of the component, the component is 
charged with refrigerant, and the component is ready for initial 
distribution or sale. EPA intends to treat the date identified on the 
pre-charged component by the OEM or provided in documentation by the 
OEM as the date of component manufacture. While EPA did not propose a 
definition of ``manufactured'' for appliance components, EPA believes 
including such a definition in the final rule is appropriate in light 
of the extensive comments requesting clarification on the date of 
manufacture of both components and complete appliances. This definition 
reflects the understanding expressed by commenters as it pertains to 
when components are manufactured.
    Due to the volume of comments received concerning the date of 
manufacture, including the request that the Agency promulgate a 
definition of ``manufactured,'' EPA is adding a definition of 
``manufactured,'' with respect to appliances and appliance components, 
at Sec.  82.302. Manufactured, for an appliance, means the date on 
which the appliance's refrigerant circuit is complete, the appliance 
can function, the appliance holds a refrigerant charge, and the 
appliance is ready for use for its intended purposes; for a pre-charged 
appliance component, ``manufactured'' means the date that the original 
equipment manufacturer has physically completed assembly of the 
component, the component is charged with refrigerant, and the component 
is ready for initial sale or distribution.

E. Ban on Sale or Distribution or Offer for Sale or Distribution in 
Interstate Commerce

    In the NPRM, EPA proposed to ban the sale and distribution, or the 
offer for sale or distribution in interstate commerce, of any appliance 
or appliance component that is pre-charged with HCFC-22 or HCFC-142b 
and is manufactured on or after January 1, 2010. In the NPRM, EPA put 
forth the Agency's interpretation, consistent with previous actions 
under CAA Sec.  610, that the term ``interstate commerce'' applies to 
the product's entire distribution chain up to and including the point 
of sale to the ultimate consumer (73 FR 78713).
    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). 
EPA's interpretation of interstate commerce for purposes of these bans 
does not cover the sale, distribution, or offer of sale or distribution 
of an appliance or an appliance component if the appliance or component 
is completely manufactured, distributed, and sold without ever crossing 
State lines. To lie outside the interpretation of interstate commerce, 
the appliance or component must be manufactured, distributed, and sold 
exclusively within a particular State, and 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.
i. Existing Inventories of Pre-Charged Appliances and Components 
Manufactured Prior to January 1, 2010
    In the NPRM, EPA proposed that effective January 1, 2010, no person 
may sell or distribute, or offer to sell or distribute, in interstate 
commerce any pre-charged appliance or appliance component manufactured 
on or after January 1, 2010 containing HCFC-22, HCFC-142b, or a blend 
containing one or both of these controlled substances (73 FR 78713). It 
remains EPA's intent to ban the sale or distribution in interstate 
commerce of new pre-charged appliances and pre-charged components 
containing HCFC-22 or HCFC-142b that would be used to configure new 
appliances in the field, while still allowing the use of inventoried 
components that were manufactured prior to January 1, 2010 to service 
appliances that were manufactured prior to January 1, 2010.
    EPA received numerous comments in response to the proposal 
concerning the ``date of manufacture'' of an appliance as it applies to 
the sale of inventoried pre-charged appliances and components. 
Overwhelmingly, the commenters focused on the concern of stranding 
stockpiled inventory that was manufactured prior to January 1, 2010, 
but not yet sold or distributed. Commenters referenced the need to sell 
pre-charged appliances and components manufactured prior to January 1, 
2010, in order to service existing appliances across multiple 
refrigeration and air-conditioning sectors, and requested that EPA 
define a consistent policy for the date of manufacture that would apply 
to the refrigerant, the components, and the appliances.
    Some commenters believed that the proposed ban included existing 
pre-charged appliances and components that were manufactured prior to 
but remain in inventory as of January 1, 2010, and thus expressed 
concern about creating a great deal of stranded inventory, resulting in 
potentially large economic losses for manufacturers. The commenters 
requested that the final rule clearly state that industry is permitted 
to use existing inventories of pre-charged appliance components that 
were manufactured or imported prior to January 1, 2010 to service 
existing appliances. Other commenters suggested a sell-through for pre-
2010 pre-charged appliances and appliance components during the 2010 
calendar year.
    EPA also received comment from the Small Business Administration 
(SBA) requesting that EPA interpret ``manufactured'' as ``the date in 
which

[[Page 66458]]

the appliance is placed in initial inventory, where the original 
product has completed all of its manufacturing processes and is ready 
for sale by the manufacturer,'' a definition which the SBA finds 
consistent with both industry practice and the EPA final rule 
Reconsideration of the 610 Nonessential Products Ban (66 FR 57511; 
November 15, 2001). In the final rule, EPA permitted the sale and 
distribution of air-conditioning and refrigeration appliances 
containing class I controlled substances that were placed into initial 
inventory by January 14, 2002. SBA stated that the 2001 rule gives an 
interpretation of initial inventory that is compatible with common 
industry usage as the date ``that the original product has completed 
all its processes and is ready for sale by the manufacturer.''
    EPA recognizes that air-conditioning and refrigeration appliances 
containing HCFC-22 or HCFC-142b could be manufactured prior to January 
1, 2010, but may not have reached the ultimate consumer by January 1, 
2010. EPA contemplated mechanisms for either a ``sell-through'' or a 
``grandfathering'' of appliances that were previously manufactured and 
placed into an initial inventory--similar to the approaches in 40 CFR 
part 82 subpart C, under the Nonessential Products Ban for class I and 
class II controlled substances. However, we note that the proposed ban 
would not have prohibited the sale or distribution of any appliance or 
appliance component manufactured before January 1, 2010. Thus, in 
effect, the proposed ban already contained a ``sell-through'' 
provision.
    EPA does not intend to strand stocks of components or make existing 
appliances obsolete by not allowing them to be serviced with 
replacement components. EPA noted in the NPRM that it did not intend to 
regulate the servicing of appliances that were manufactured prior to 
January 1, 2010 (73 FR 78712). EPA noted that servicing is regulated 
under other authorities, notably 40 CFR part 82, subpart F. EPA is 
allowing the continued use of recovered and reclaimed HCFC-22 to 
service existing equipment, as well as allowing the limited production 
and import of virgin HCFC-22 and HCFC-142b to service existing 
appliances, as promulgated in the accompanying final rule titled 
``Protection of Stratospheric Ozone: Adjustments to the Allowance 
System for Controlling HCFC Production, Import, and Export'' (EPA 
Docket: EPA-HQ-OAR-2008-0496). 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.
    EPA recognizes that existing stockpiles of replacement components 
could be used to service existing appliances, and that such service 
would be likely to occur after the January 1, 2010 phaseout date. EPA 
intends to allow the continued servicing of these appliances in order 
to allow for a smooth transition away from HCFC-22 and HCFC-142b. This 
intent is consistent with the companion final rule allocating 
allowances for the production and consumption of HCFC-22 and HCFC-142b 
after January 1, 2010, in order to service the existing stock of 
appliances in residential, commercial, and industrial refrigeration and 
air-conditioning end-uses. EPA is clarifying that pre-charged appliance 
components, such as condensing units, line sets, evaporators, and 
compressors that were manufactured before January 1, 2010, may be sold 
for purposes of servicing appliances manufactured before that date. 
Manufacturers, distributors, and wholesalers maintaining stockpiles of 
pre-2010 components that are pre-charged with virgin HCFC-22 or HCFC-
142b can continue to sell such components in order to service existing 
appliances in the year 2010 and beyond.
    Consistent with the proposal, this final rule does not apply the 
prohibition against the sale and distribution in interstate commerce 
that does not apply to pre-charged components that were manufactured 
prior to January 1,