IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Petitioner,

v. Case No. ______

ANDREW WHEELER, Administrator, U.S. Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR REVIEW of a final rule of the U.S. Environmental Protection Agency

Pursuant to Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1), Rule 15 of

the Federal Rules of Appellate Procedure, and D.C. Circuit Rule 15, the Natural

Resources Defense Council hereby petitions the Court for review of the final rule of Respondents Andrew Wheeler, Administrator, U.S. Environmental Protection

Agency (EPA), and EPA, titled “Protection of Stratospheric Ozone: Revisions to

the Refrigerant Management Program’s Extension to Substitutes.” This rule was

published in the Federal Register at 85 Fed. Reg. 14,150 on March 11, 2020. A

copy of the rule is attached as Exhibit A. Dated: May 11, 2020 Respectfully submitted,

/s/ Melissa J. Lynch Melissa J. Lynch David D. Doniger Natural Resources Defense Council 1152 15th Street NW, Ste. 300 Washington, DC 20005 Telephone: (202) 289-6868 [email protected] [email protected]

Sarah C. Tallman Natural Resources Defense Council 20 N. Wacker Dr., Ste. 1600 Chicago, IL 60606 Telephone: (312) 651-7918 [email protected]

Counsel for Petitioner Natural Resources Defense Council, Inc.

2

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Petitioner,

v. Case No. ______

ANDREW WHEELER, Administrator, U.S. Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule

26.1, Petitioner Natural Resources Defense Council makes the following

disclosures:

Non-Governmental Corporate Party to this Action: Natural Resources Defense

Council, Inc. (NRDC).

Parent Corporations: None.

Publicly Held Company that Owns 10% or More of Party’s Stock: None.

Party’s General Nature and Purpose: NRDC, a corporation organized and existing under the laws of the State of New York, is a national nonprofit organization dedicated to improving the quality of the human environment and protecting the nation’s endangered natural resources.

Dated: May 11, 2020 Respectfully submitted,

/s/ Melissa J. Lynch Melissa J. Lynch David D. Doniger Natural Resources Defense Council 1152 15th Street NW, Ste. 300 Washington, DC 20005 Telephone: (202) 289-6868 [email protected] [email protected]

Sarah C. Tallman Natural Resources Defense Council 20 N. Wacker Dr., Ste. 1600 Chicago, IL 60606 Telephone: (312) 651-7918 [email protected]

Counsel for Petitioner Natural Resources Defense Council, Inc.

2

CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of May, 2020, the foregoing Petition for Review and Rule 26.1 Corporate Disclosure Statement of the Natural

Resources Defense Council have been served by certified U.S. mail, return receipt requested on each of the following:

Andrew Wheeler Administrator U.S. Environmental Protection Agency Mail Code 1101A 1200 Pennsylvania Avenue, NW Washington, DC 20460

Correspondence Control Unit Office of General Counsel (2311) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

William P. Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

/s/ Melissa J. Lynch Melissa J. Lynch

Exhibit A

U.S. EPA, Protection of Stratospheric Ozone: Revisions to the Refrigerant Management Program’s Extension to Substitutes, 85 Fed. Reg. 14,150 (Mar. 11, 2020)

14150 Federal Register / Vol. 85, No. 48 / Wednesday, March 11, 2020 / Rules and Regulations

Subpart II—North Carolina ‘‘110(a)(1) and (2) Infrastructure § 52.1770 Identification of plan. Requirements for the 2015 8-Hour * * * * * ■ 3. Section 52.1770, is amended in Ozone NAAQS’’ at the end of the table (e) * * * paragraph (e) by adding an entry for to read as follows:

EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS

State EPA Provision effective approval Federal Register Explanation date date citation

*******

110(a)(1) and (2) Infra- 9/27/2018 3/11/2020 [Insert citation of publica- With the exception of 110(a)(2)(D)(i)(I) (prongs 1 and structure Requirements tion]. 2) and PSD provisions related to major sources for the 2015 8-Hour under sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) Ozone NAAQS. (prong 3), and 110(a)(2)(J).

[FR Doc. 2020–04855 Filed 3–10–20; 8:45 am] documents in the docket are listed on refrigerants 2 and their substitutes 3 in BILLING CODE 6560–50–P the www.regulations.gov website. the course of maintaining, servicing, Although listed in the index, some repairing, or disposing of appliances or information is not publicly available, industrial process refrigeration (IPR). ENVIRONMENTAL PROTECTION e.g., confidential business information The EPA refers to this third component AGENCY or other information whose disclosure is as the ‘‘venting prohibition.’’ Section restricted by statute. Certain other 608(c)(1) establishes the venting 40 CFR Part 82 material, such as copyrighted material, prohibition for ODS refrigerants [EPA–HQ–OAR–2017–0629; FRL–10006–10– is not placed on the internet and will be effective July 1, 1992, and it includes an OAR] publicly available only in hard copy exemption from this prohibition for form. All other publicly available docket ‘‘[d]e minimis releases associated with RIN 2060–AT81 materials are available electronically good faith attempts to recapture and through www.regulations.gov. recycle or safely dispose’’ any such Protection of Stratospheric Ozone: substance. Section 608(c)(2) extends Revisions to the Refrigerant FOR FURTHER INFORMATION CONTACT: Jeremy Arling by regular mail: U.S. 608(c)(1) to substitute refrigerants, Management Program’s Extension to effective November 15, 1995. Section Substitutes Environmental Protection Agency, Stratospheric Protection Division 608(c)(2) also includes a provision that AGENCY: Environmental Protection (6205T), 1200 Pennsylvania Avenue allows the Administrator to exempt a Agency (EPA). NW, Washington, DC 20460; by substitute refrigerant from the venting prohibition if he or she determines that ACTION: Final rule. telephone: (202) 343–9055; or by email: [email protected]. More such venting, release, or disposal of a SUMMARY: The Clean Air Act prohibits information can also be found at: substitute refrigerant ‘‘does not pose a 4 knowingly venting or releasing ozone- https://www.epa.gov/section608. threat to the environment.’’ The EPA first issued regulations depleting and substitute refrigerants in SUPPLEMENTARY INFORMATION: the course of maintaining, servicing, under section 608 of the CAA on May repairing, or disposing of appliances or I. General Information 14, 1993 (58 FR 28660, ‘‘1993 Rule’’), to industrial process refrigeration. In 2016, establish the national refrigerant A. What is the National Recycling and management program for ODS the EPA amended the regulatory Emission Reduction Program? refrigerant management requirements refrigerants recovered during the Section 608 of the Clean Air Act and extended requirements that service, repair, or disposal of air- (CAA), titled ‘‘National Recycling and previously applied only to refrigerants conditioning and refrigeration Emission Reduction Program,’’ has three appliances. The 1993 Rule required that containing an ozone-depleting main components. First, section 608(a) persons servicing air-conditioning and substance to substitute refrigerants that requires the EPA to establish standards refrigeration equipment containing ODS are subject to the venting prohibition and requirements regarding the use and refrigerants observe certain practices (i.e., those that have not been exempted disposal of class I and class II that reduce emissions. It established from that prohibition) such as substances.1 The second component, hydrofluorocarbons. Based on changes section 608(b), requires that the 2 The term ‘‘ODS refrigerant’’ as used in this to the legal interpretation that supported regulations issued pursuant to document refers to any refrigerant or refrigerant that 2016 rule, this action revises some blend in which one or more of the components is subsection (a) contain requirements for of those requirements—specifically, the a class I or class II substance. the safe disposal of class I and class II 3 appliance maintenance and leak repair The term ‘‘substitute’’ is defined at § 82.152. substances. The third component, 4 provisions—so they apply only to The EPA is using the term ‘‘non-exempt section 608(c), prohibits the knowing substitute’’ in this document to refer to substitute equipment using refrigerant containing venting, release, or disposal of ODS refrigerants that have not been exempted from the an ozone-depleting substance. venting prohibition under CAA section 608(c)(2) and § 82.154(a) in the relevant end-use. Similarly, DATES: This final rule is effective on 1 A class I or class II substance is an ozone- the term ‘‘exempt substitute’’ refers to a substitute April 10, 2020. depleting substance (ODS) listed at 40 CFR part 82, refrigerant that has been exempted from the venting ADDRESSES: The EPA has established a subpart A, appendix A or appendix B, respectively. prohibition under section 608(c)(2) and § 82.154(a) This document refers to class I and class II in the relevant end-use. A few exempt substitutes docket for this action under Docket ID substances collectively as ozone-depleting have been exempted from the venting prohibition No. EPA–HQ–OAR–2017–0629. All substances, or ODS. in all end-uses.

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requirements for refrigerant recovery certain regulatory requirements were to conduct leak rate calculations when equipment, reclaimer certification, and followed. refrigerant is added to an appliance, technician certification, and also Additionally, the 2004 and 2005 rules repair an appliance that leaks above the restricted the sale of ODS refrigerant so exempted certain substitute refrigerants threshold leak rate applicable to that that only certified technicians could from the venting prohibition either in type of appliance, conduct verification purchase it. In addition, the 1993 Rule specific end uses or in all end uses. (See tests on repairs, conduct periodic leak required that ODS be removed from 69 FR 11953–11954; 70 FR 19278; inspections on appliances that have appliances prior to disposal, and that all § 82.154(a) (2005)). The EPA has exceeded the threshold leak rate, report air-conditioning and refrigeration periodically updated this list of to the EPA on chronically leaking equipment using an ODS be provided exemptions from the venting appliances, retrofit or retire appliances with a servicing aperture or process stub prohibition in the regulations at that are not repaired, and maintain to facilitate refrigerant recovery. The § 82.154(a) since 2005. The EPA also related documentation to verify 1993 Rule also established a issued proposed rules to revise the compliance. The regulatory changes in requirement to repair leaking appliances regulations in subpart F on June 11, the 2016 Rule became effective on containing more than 50 pounds of ODS 1998 (63 FR 32044), elements of which January 1, 2017, but the revisions to the refrigerant. The rule set an annual leak were not finalized, and on December 15, leak repair provisions had a compliance rate of 35 percent for commercial 2010 (75 FR 78558), no elements of date of January 1, 2019 to allow time for refrigeration appliances and IPR and 15 which were finalized. A more detailed the regulated community to prepare for percent for comfort cooling appliances. history of these regulatory updates can those changes. (81 FR 82343). The 2016 If the applicable leak rate is exceeded, be found at 81 FR 82275. Rule additionally made numerous the appliance must be repaired within On November 18, 2016, the EPA revisions to improve the efficacy of the 30 days. Further, consistent with CAA published a rule updating existing refrigerant management program as a section 608(c)(1), the 1993 Rule refrigerant management requirements whole, such as revisions of regulatory included a regulatory provision and extending the full set of the subpart provisions for increased clarity and prohibiting the knowing venting or F refrigerant management requirements, readability, and removal of provisions which prior to that rule applied only to that had become obsolete. release of ODS refrigerant by any person 5 maintaining, servicing, repairing, or ODS refrigerants, to non-exempt Two industry coalitions, the National disposing of an appliance. (58 FR 28714; substitute refrigerants, such as Environmental Development 40 CFR 82.154(a) (1993)). It also hydrofluorocarbons (HFCs) and Association’s Clean Air Project (NEDA/ provided that such releases would be hydrofluoroolefins (HFOs) (81 FR CAP) and the Air Permitting Forum considered de minimis, and therefore 82272, ‘‘2016 Rule’’). The 2016 Rule (APF), filed petitions for judicial review not subject to the prohibition, if they also clarified how regulated entities of the 2016 Rule in the U.S. Court of could avail themselves of the de occurred when certain regulatory Appeals for the District of Columbia minimis exemption for non-exempt requirements were followed. (40 CFR Circuit (D.C. Circuit), and the cases have substitutes. (See, e.g., 81 FR 82283– 82.154(a) (1993)). been consolidated. (See NEDA/CAP v. 82285). Among the subpart F EPA, No. 17–1016 (D.C. Cir. filed The EPA revised these regulations, requirements extended to non-exempt January 17, 2017); APF v. EPA, No. 17– which are found at 40 CFR part 82, substitute refrigerants in the 2016 Rule 1017 (D.C. Cir. filed January 17, 2017)). subpart F (‘‘subpart F’’), through were provisions that restrict the The Chemours Company, Honeywell subsequent rulemakings published on servicing of appliances and the sale of International Inc., the Natural Resources August 19, 1994 (59 FR 42950), refrigerant to certified technicians, Defense Council, and the Alliance for November 9, 1994 (59 FR 55912), specify the proper evacuation levels Responsible Atmospheric Policy are August 8, 1995 (60 FR 40420), July 24, before opening an appliance, require the participating as intervenor-respondents 2003 (68 FR 43786), March 12, 2004 (69 use of certified refrigerant recovery and/ in that litigation, in support of the 2016 FR 11946), January 11, 2005 (70 FR or recycling equipment, require that Rule. In addition, APF has filed a 1972), April 13, 2005 (70 FR 19273), refrigerant be removed from appliances petition with the EPA for administrative May 23, 2014 (79 FR 29682), April 10, prior to disposal, require that appliances reconsideration of the 2016 Rule. The 2015 (80 FR 19453), and November 18, have a servicing aperture or process stub petition for reconsideration is available 2016 (81 FR 82272). to facilitate refrigerant recovery, require in the docket for this action and raises In the April 2005 rulemaking, the EPA that refrigerant reclaimers be certified to several issues regarding changes made revised the regulatory venting reclaim and sell used refrigerant, and in the 2016 Rule, such as the EPA’s prohibition in § 82.154, so that it also establish standards for technician statutory authority for its decision in the applied to non-exempt substitute certification programs, recovery 2016 Rule to expand the scope of the refrigerants, and included such equipment, and quality of reclaimed refrigerant management requirements— substitutes in the regulatory provision refrigerant. The 2016 Rule also extended including, but not limited to, leak repair implementing the de minimis the appliance maintenance and leak requirements—to cover non-exempt exemption, so that it exempted ‘‘de repair provisions, currently codified at substitute refrigerants. Honeywell minimis releases associated with good § 82.157, to appliances that contain 50 International Inc. submitted a document faith attempts to recycle or recover or more pounds of non-exempt styled as a response to APF’s petition refrigerants or non-exempt substitutes’’ substitute refrigerant. For ease of for reconsideration, which is also from the prohibition. (70 FR 19278). reference, in this document the EPA available in the docket for this action. However, in contrast to how these uses the terms ‘‘leak repair provisions’’ regulations applied to ODS refrigerants, or ‘‘leak repair requirements’’ B. Does this action apply to me? they did not provide that releases of interchangeably to refer to all of the Categories and entities potentially non-exempt substitute refrigerants provisions at § 82.157. Included in these affected by this action include those would be considered de minimis if leak repair provisions are requirements who own or operate refrigeration and

5 The only subpart F requirements that applied to the venting prohibition and certain exemptions substitute refrigerants prior to the 2016 Rule were from that prohibition, as set forth in § 82.154(a).

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air-conditioning appliances. Potentially affected entities include, but are not limited to, the following:

TABLE 1—POTENTIALLY AFFECTED ENTITIES

North American Industry Classification System Category (NAICS) code Examples of regulated entities

Industrial Proc- 111, 11251, 11511, 21111, 2211, 2212, 2213, 311, 3121, Owners or operators of refrigeration equipment used in agri- ess Refrigera- 3221, 3222, 32311, 32411, 3251, 32512, 3252, 3253, culture and crop production, oil and gas extraction, ice tion (IPR). 32541, 3256, 3259, 3261, 3262, 3324, 3328, 33324, rinks, and the manufacture of frozen food, dairy products, 33341, 33361, 3341, 3344, 3345, 3346, 3364, 33911, food and beverages, ice, petrochemicals, chemicals, ma- 339999. chinery, medical equipment, plastics, paper, and elec- tronics. Commercial Re- 42374, 42393, 42399, 4242, 4244, 42459, 42469, 42481, Owners or operators of refrigerated warehousing and storage frigeration. 42493, 4451, 4452, 45291, 48422, 4885, 4931, 49312, facilities, supermarkets, grocery stores, warehouse clubs, 72231. supercenters, convenience stores, and refrigerated trans- port. Comfort Cooling 45211, 45299, 453998, 512, 522, 524, 531, 5417, 551, 561, Owners or operators of air-conditioning equipment used in 6111, 6112, 6113, 61151, 622, 7121, 71394, 721, 722, the following: Hospitals, office buildings, colleges and uni- 813, 92. versities, metropolitan transit authorities, real estate rental & leased properties, lodging and food services, property management, schools, and public administration or other public institutions.

This list is not intended to be discussed above, these provisions Consistent with the proposal, this action exhaustive, but rather to provide a guide include requirements related to does not change any of the regulatory for readers regarding entities likely to be appliance maintenance and leak repair. requirements for ODS in 40 CFR part 82, affected by this action. To determine This action finalizes that proposed subpart F. whether your facility, company, withdrawal and will relieve businesses business, or organization could be from having to repair leaks, conduct D. What is the agency’s authority for affected by this action, you should leak inspections, and keep records for taking this action? carefully examine the regulations at 40 appliances containing only substitute This action is based on changes to a CFR part 82, subpart F and the revisions refrigerant. legal interpretation of the EPA’s below. If you have questions regarding The 2018 proposal also requested authority under CAA section 608 that the applicability of this action to a comment on whether to withdraw the supported the extension of the leak particular entity, consult the person 2016 Rule’s extension of the full set of repair requirements at § 82.157 to non- listed in the FOR FURTHER INFORMATION subpart F provisions to non-exempt exempt substitute refrigerants in the CONTACT section. substitute refrigerants. Subpart F 2016 Rule. As described in greater detail C. What action is the agency taking? includes provisions that restrict the in Section II below, the EPA concludes servicing of appliances and the sale of that, as a legal matter, the 2016 Rule’s The EPA reviewed the 2016 Rule, refrigerant to certified technicians, extension of the leak repair focusing in particular on whether the specify the proper evacuation levels requirements to non-exempt substitute agency had the statutory authority to before opening an appliance, require the refrigerants exceeded the EPA’s extend the full set of subpart F use of certified refrigerant recovery and/ statutory authority under CAA section refrigerant management regulations to or recycling equipment, require that non-exempt substitute refrigerants, such refrigerant be removed from appliances 608. Accordingly, the EPA is rescinding as HFCs and HFOs. Based on that prior to disposal, require that appliances the 2016 Rule’s extension of the leak review, Administrator Pruitt signed a have a servicing aperture or process stub repair requirements to non-exempt letter on August 10, 2017 stating that the to facilitate refrigerant recovery, require substitutes. However, the EPA continues EPA is ‘‘planning to issue a proposed that refrigerant reclaimers be certified to to interpret section 608 as providing the rule to revisit aspects of the 2016 Rule’s reclaim and sell used refrigerant, and agency some authority to regulate extension of the 40 CFR part 82, subpart establish standards for technician substitutes. That includes authority to F refrigerant management requirements certification programs, recovery issue regulations that interpret, explain, to non-exempt substitutes.’’ 6 Consistent equipment, and quality of reclaimed and enforce the venting prohibition and with that letter, in 2018 the agency refrigerant (40 CFR part 82, subpart F). the de minimis exemption under section proposed to withdraw the extension of In this action the EPA is not making any 608(c) or that are necessary to fulfill the the provisions at § 82.157 to appliances changes to the subpart F provisions purposes set forth in section 608(a)(3) using only non-exempt substitute other than (1) limiting the applicability (i.e., to reduce the use and emission of refrigerants.7 (83 FR 43922). As of the leak repair provisions in § 82.157 ODS to the lowest achievable level or to to appliances that use ODS refrigerants maximize the recapture and recycling of 6 Letter from the EPA to National Environmental or a blend containing ODS refrigerants ODS). Because the extension of the non- Development Association’s Clean Air Project and leak repair provisions in subpart F to the Air Permitting Forum (Aug. 10, 2017), available and (2) correspondingly clarifying that at www.epa.gov/sites/production/files/2017-08/ the reference to § 82.157 in non-exempt substitute refrigerants documents/608_update_letter.pdf and in the docket § 82.154(a)(2)(i) (the regulatory remains within the scope of the EPA’s to this rule. provision implementing the de minimis authority under 608 under the revised 7 Ozone-depleting refrigerants and appliances that statutory interpretation described in this contain or use any amount of ODS continue to be exemption to the venting prohibition) subject to all applicable subpart F requirements, only applies for appliances that contain action, the extension of those including those in § 82.157. ODS refrigerants (including in a blend). requirements is not being rescinded.

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E. What are the incremental costs and 2016 Rule by approximately $39 million result in forgone annual greenhouse gas benefits of this action? per year. The EPA also estimates this (GHG) emissions reductions benefits of Although this action is based on rule will increase the need to purchase about 3 million metric tons of carbon changes in the EPA’s statutory non-exempt substitute refrigerant for dioxide equivalent (MMTCO2e). This interpretation, the agency is providing a leaking appliances, at an overall cost of rule will not result in an increase in summary of incremental costs and approximately $15 million per year. ODS emissions. benefits associated with this action for Thus, incremental compliance savings Table 2 presents a summary of the purposes of transparency and public and increased refrigerant costs annual costs, forgone emission information. Using a 7% discount rate, combined are estimated to be a reductions, and benefits associated with agency analyses indicate that rescinding reduction of at least $24 million per rescinding the extension of the leak the extension of the leak repair year. These estimates are somewhat repair provisions to non-exempt provisions to non-exempt substitutes lower if a 3% discount rate is used. The substitutes, using a 7% or a 3% reduces the burden associated with the EPA estimates that this action will discount rate, respectively.

TABLE 2—ANNUAL COSTS AND BENEFITS

Rescinding extension of leak repair provisions to non-exempt substitutes 7% Discount rate 3% Discount rate

Cost Savings (Burden Reduction) ...... $38,958,000 ...... $35,264,000. Total Cost (Refrigerant Replacement) ...... ¥$14,874,000 ...... ¥$14,874,000. Net Cost Savings ...... $24,084,000 ...... $20,390,000. Forgone Emissions Reductions (non-monetized disbenefit) ...... 2.946 MMTCO2e ... 2.946 MMTCO2e.

Additional discussion of these appliances and IPR.8 Section 608(a)(3) Section 608(c)(1), effective July 1, 1992, analyses can be found in Section III of provides that regulations under section makes it unlawful for any person, in the this document and in the Analysis of the 608(a) are to include requirements to course of maintaining, servicing, Economic Impact of the Proposed 2018 reduce the use and emission of ODS to repairing, or disposing of an appliance Revisions to the National Recycling and the lowest achievable level, and to or IPR to knowingly vent, release, or Emission Reduction Program in the maximize the recapture and recycling of dispose of any ODS used as a refrigerant docket. such substances. Section 608(a)(3) in such equipment in a manner that II. The Final Rule further provides that ‘‘[s]uch regulations permits that substance to enter the may include requirements to use environment. Section 608(c)(1) also A. Legal Background and the 2016 Rule alternative substances (including includes an exemption from this This action results from the EPA’s substances which are not class I or class prohibition for ‘‘[d]e minimis releases decision to revisit aspects of the 2016 II substances) or to minimize use of associated with good faith attempts to Rule’s extension of the 40 CFR part 82, class I or class II substances, or to recapture and recycle or safely dispose’’ subpart F refrigerant management promote the use of safe alternatives of such a substance. Section 608(c)(2) requirements to non-exempt substitutes. pursuant to section [612] or any states that, effective November 15, 1995, That process resulted in changes to the combination of the foregoing.’’ 9 ‘‘paragraph (1) shall also apply to the legal interpretation supporting the 2016 Section 608(c) establishes a self- venting, release, or disposal of any Rule, which are reflected in this action. effectuating prohibition, commonly substitute substance for a class I or class For context, we begin by summarizing called the ‘‘venting prohibition.’’ 10 II substance by any person maintaining, the key statutory provisions and the servicing, repairing, or disposing of an EPA’s view of its legal authority as 8 We note that section 608(a) is not limited to appliance or [IPR] which contains and presented in the 2016 Rule. The refrigerants, and that the EPA has applied its uses as a refrigerant any such substance, authority under section 608(a) to establish or discussion of the EPA’s statutory consider regulations for ODS in non-refrigerant unless the Administrator determines authority to extend refrigerant applications. See, e.g., 63 FR 11084. that venting, releasing, or disposing of management requirements to non- 9 While section 608(a)(3) provides that the such substance does not pose a threat to exempt substitute refrigerants in the regulations issued under section 608(a) ‘‘may the environment.’’ The EPA interprets 2016 Rule focused primarily on CAA include requirements to use alternative substances (including substances which are not class I or class section 608(c)(2)’s extension of section section 608, especially on sections II substances), . . . or to promote the use of safe 608(c)(1) to substitute refrigerants to 608(c) and 608(a). (See generally 81 FR alternatives pursuant to section [612]’’, the EPA is extend both the prohibition on venting 82284–82288). not relying upon these provisions in 608(a)(3) in and the de minimis exemption to non- Section 608(a) requires the EPA to this document, as the regulatory changes effected by the 2016 Rule, which today’s action partially exempt substitute refrigerants. This is a establish standards and requirements rescinds, do not relate to requirements to use long-held position which the EPA is not regarding the use and disposal of class substitutes or promote their use pursuant to section revisiting in this action. (See, e.g., 69 FR I and class II substances. With regard to 612. (In implementing Title VI, the EPA has at times 11949, March 12, 2004; and 70 FR refrigerants, under sections 608(a)(1) used the terms ‘‘alternative’’ and ‘‘substitute’’ interchangeably. See, e.g., 81 FR 86779, n.1; 81 FR 19274–19275, April 13, 2005). Section and 608(a)(2), the EPA is required to 82276, 82291.) Furthermore, the EPA did not rely 608(c) does not expressly provide that promulgate regulations establishing on these authorities in 608(a)(3) in extending the the EPA may write regulations under standards and requirements for the use refrigerant management requirements to substitute that section. Section 301, however, and disposal of class I and class II refrigerants in the 2016 Rule, and it is not relying on them in addressing the underlying questions of states that the ‘‘Administrator is substances, respectively, during the statutory interpretation at issue here. service, repair, or disposal of air- 10 In this context, the EPA uses the term ‘‘self- on venting is itself legally binding even in the conditioning and refrigeration effectuating’’ to mean that the statutory prohibition absence of implementing regulations.

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authorized to prescribe such regulations substitute refrigerants largely on section have broad discretion to reconsider a as are necessary to carry out his 608(c), which the EPA interpreted to regulation at any time.’’ Clean Air functions under [the Clean Air Act].’’ provide it authority to promulgate Council v. Pruitt, 862 F.3d 1, 8–9 (D.C. In the 2016 Rule, the EPA interpreted regulations that interpret, explain, and Cir. 2017). Similarly, the fact that an section 608 of the CAA as being enforce the venting prohibition and the agency has previously adopted one ambiguous with regard to the agency’s de minimis exemption as they apply to interpretation of a statute does not authority to establish refrigerant non-exempt substitute refrigerants. (See preclude it from later exercising its management regulations for non-exempt 81 FR 82283–82284). In reaching this discretion to change its interpretation. substitute refrigerants because Congress interpretation, the EPA relied in part on National Cable & Telecommunications had not precisely spoken to this issue. a policy rationale that by establishing a Ass’n, 545 U.S. at 981. In addition, an Accordingly, the EPA took the view that comprehensive and consistent agency may ‘‘justify its policy choice by it had the discretion under Chevron, framework that applies to both ODS and explaining why that policy ‘is more U.S.A., Inc. v. Natural Res. Def. Council, non-exempt substitute refrigerants, the consistent with statutory language’ than Inc., 467 U.S. 837, 843–44 (1984), to 2016 Rule would provide clarity to the alternative policies.’’ Encino Motorcars, interpret section 608 as providing the regulated community concerning the 136 S.Ct. at 2127 (quoting Long Island EPA with authority to extend all aspects measures that should be taken to Care at Home Ltd. v. Coke, 551 U.S. 158, of its refrigerant management comply with the venting prohibition for 175 (2007)). The CAA complements the regulations under section 608 to non- non-exempt substitutes and would thus EPA’s inherent authority to reconsider exempt substitute refrigerants, including reduce confusion and enhance prior rulemakings by providing the those regulations that had previously compliance for both ODS and non- agency with broad authority to prescribe only applied to ODS refrigerants. (See exempt substitutes. The EPA further regulations as necessary to carry out the 81 FR 82283). The 2016 Rule explained explained its view in the 2016 Rule that agency’s functions under the CAA in that section 608(a) expressly requires the extension of requirements under section 301(a). the EPA to issue regulations that apply section 608 to non-exempt substitutes In this action the agency has to class I and class II substances, but it was also supported by section 608(a) reassessed the 2016 Rule’s assertion of does not expressly address whether the because having a consistent regulatory legal authority to extend the full set of EPA could establish the same refrigerant framework for non-exempt substitutes subpart F requirements to non-exempt management practices for substitute and ODS is expected to reduce substitute refrigerants under CAA substances. On the other hand, section emissions of ODS refrigerants. In section 608. While the agency is 608(c)(2) explicitly mentions substitute addition, the EPA located supplemental retaining aspects of the interpretation refrigerants and directly applies the authority for the 2016 Rule in section that supported the 2016 Rule, it is provisions for ODS refrigerants in 301(a), which provides authority for the revising that interpretation in some section 608(c)(1) to them. The 2016 Rule EPA to ‘‘prescribe such regulations as important respects for greater noted that this created a tension in the are necessary to carry out [the EPA consistency with the statutory text, regulatory scheme for substitute Administrator’s] functions’’ under the structure, and purposes, as described refrigerants because the regulated Act. Id. Further, the EPA identified below. As in the 2016 Rule, the EPA community is subject to the prohibition section 114, which provides authority to continues to interpret section 608 as on knowing venting, releasing, or the EPA Administrator to require being ambiguous with regard to the disposing of non-exempt substitute recordkeeping and reporting in carrying agency’s authority to establish refrigerants while maintaining, out provisions of the CAA, as providing refrigerant management regulations for servicing, repairing, or disposing of air supplemental authority to extend the non-exempt substitute refrigerants. conditioning and refrigeration recordkeeping and reporting Sections 608(a)(1) and (2) explicitly equipment but at the same time section requirements to non-exempt substitutes. require the EPA to promulgate 608(a) does not direct the EPA to Id. regulations regarding the use and promulgate regulations requiring the disposal of ODS but as these provisions regulated community to recover non- B. The EPA’s Reassessment of Its Legal make no mention of substitutes they exempt substitute refrigerant prior to Authority Under Section 608 neither expressly preclude nor expressly servicing or disposing of such The EPA’s ability to revisit existing authorize regulation of substitutes for equipment or to engage in any of the regulations is well-grounded in the law. the purpose of achieving the ODS goals practices or behaviors that the EPA has Specifically, the EPA has inherent of those provisions. Section 608(c)(2) established to minimize the emission authority to reconsider, repeal, or revise does expressly mention substitute and release of ODS refrigerants during past decisions to the extent permitted by refrigerants, but that provision focuses such maintenance, service, repair, or law so long as the agency provides a on prohibiting knowing releases of disposal. The 2016 Rule further reasoned explanation. See, e.g., Encino substitute refrigerants in the course of explained that while the subpart F Motorcars LLC v. Navarro, 136 S.Ct. specific activities (maintenance, service, regulations made clear that ODS 2117, 2125 (2016). The authority to repair, and disposal) and on providing refrigerant releases would be considered reconsider prior decisions exists in part an exemption for de minimis releases de minimis if (and only if) certain because the EPA’s interpretations of without specifying the mechanisms for regulatory requirements were followed, statutes it administers ‘‘[are not] carrying out this prohibition and the rules did not provide any such instantly carved in stone,’’ but must be exemption. Thus, Congress did not clarity regarding what practices evaluated ‘‘on a continuing basis.’’ precisely delineate in section 608 the regulated parties must follow to qualify Chevron U.S.A. Inc. v. NRDC, Inc., 467 scope of the EPA’s authority to regulate for the de minimis exemption, and U.S. 837, 863–64 (1984). This is true substitute refrigerants by issuing thereby comply with the venting when, as is the case here, review is refrigerant management regulations. prohibition, for non-exempt substitute undertaken ‘‘in response to . . . a change The EPA also continues to believe refrigerants. (See 81 FR 82284). in administrations.’’ National Cable & that it is reasonable to interpret both In the 2016 Rule, the EPA grounded Telecommunications Ass’n v. Brand X sections 608(a) and (c) as providing its authority for the extension of Internet Services, 545 U.S. 967, 981 authority that could support the refrigerant requirements to non-exempt (2005). Indeed, ‘‘[a]gencies obviously extension of certain subpart F

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requirements to non-exempt substitute extension is within the ambit of its C. The EPA Lacked Authority Under refrigerants. The EPA maintains the authority under section 608(a). Section 608 To Extend Leak Repair position that section 608(c) is In contrast to the 2016 Rule, however, Requirements To Substitute Refrigerants reasonably construed as providing the the EPA has concluded that its statutory Applying the interpretive framework agency discretionary authority to authority under section 608, taking that described in Section II.B above, the EPA interpret, explain, and enforce the authority as a whole, does not extend as has re-examined whether the 2016 venting prohibition and the de minimis far with respect to substitutes as it does Rule’s extension of the leak repair exemption for substitute refrigerants, as with respect to ODS. This conclusion is requirements to appliances that contain section 608(c)(2) incorporates both the supported by the text and structure of only substitute refrigerants was within prohibition and the exemption and section 608. The fact that Congress its authority under section 608, either as applies them to substitutes. Thus, these specifically included the term (1) an appropriate means of interpreting, are both elements in the statutory ‘‘substitutes’’ in section 608(c) but not explaining, and enforcing the venting regime that the EPA is entrusted to in sections 608(a)(1) or (2), contrasted prohibition and the de minimis with the express references to ODS administer for substitute refrigerants. exemption under section 608(c), or (2) (class I and class II substances) in both The fact that Congress extended the de as regulations that are necessary to subsections, suggests that the EPA’s minimis exemption for ‘‘releases fulfill the purposes of section 608(a) to authority to address substitutes under reduce the use and emission of ODS to associated with good faith attempts to section 608 is more limited than its recapture and recycle or safely dispose the lowest achievable level or to authority to address ODS. If Congress maximize the recapture and recycling of of any such substance’’ to substitutes had intended to convey authority to the under section 608(c)(2) but did not ODS. As described further below, based EPA to promulgate the same, full set of on that legal analysis, the agency specify what practices or actions should refrigerant management requirements be taken to qualify for this exemption, concludes that the extension of the leak for substitutes as for ODS, it is repair requirements to non-exempt creates a statutory ambiguity that the reasonable to expect that Congress EPA can resolve through regulation. substitute refrigerants exceeded the would have expressly included EPA’s legal authority under section 608 However, section 608(c) is limited in the substitutes in sections 608(a)(1) or (2), scope of releases and activities it because it relied on an unreasonable as it did for section 608(c)—but it did interpretation of that authority. addresses: It specifically covers not. In addition, the differences in the knowing venting, release, or disposal of Consequently, the EPA determines that verbs used in section 608(a) (authorizing the extension of the leak repair substitute refrigerants in the course of regulations related to the ‘‘use and requirements to non-exempt substitute maintaining, servicing, repairing, or disposal’’ of ODS ‘‘including use and refrigerants must be rescinded and is disposing of appliances. To the extent disposal during service, repair, or finalizing that rescission in this action. that the subpart F provisions extended disposal’’ of appliances) compared to This rescission is also consistent with to non-exempt substitutes in the 2016 those used in section 608(c) (prohibiting the agency’s view that the scope of its Rule address the potential for such knowing releases ‘‘in the course of authority under section 608 is more releases during one of these covered maintaining, servicing, repairing, or limited for substitutes than for ODS, and activities, those provisions continue to disposing’’ of appliances) further the EPA today is finalizing changes to supports the conclusion that Congress be within the scope of the EPA’s its subpart F regulations to conform envisioned that the regulations under authority under section 608(c) under the those regulations to its interpretation of section 608(a) would affect a broader interpretation supporting this action. the statute. As for section 608(a), section 608(a)(3) range of activities than those under requires the agency to issue regulations section 608(c), as regulations under i. Section 608(c) that reduce the use and emission of ODS section 608(a) could address any use or To justify the extension of the leak disposal of ODS, rather than being to the lowest achievable level and repair requirements to non-exempt limited to particular activities. maximize the recapture and recycling of substitute refrigerants in the 2016 Rule, In sum, while the EPA continues to the EPA reversed its longstanding such substances. While section 608(a)(3) interpret section 608 to provide some contains discretionary language about position that ‘‘topping off’’ leaking authority to regulate substitute appliances was not knowing venting or what requirements those regulations refrigerants, the EPA now reads sections a knowing release of refrigerant in the may include, it does not contain any 608(a) and (c) together to determine that course of maintaining, servicing, more specific mandates about how the its authority is more limited for repairing, or disposing of an appliance required objectives should be achieved. substitute refrigerants than for ODS. In within the meaning of section 608(c). Given this ambiguity, the EPA addition, the EPA continues to interpret The EPA’s historic position, and the one reasonably interprets section 608(a) to CAA section 301(a), which provides that that the agency is returning to through provide authority to issue regulations the EPA may ‘‘prescribe such this action, is that refrigerant released that reduce the use and emission of ODS regulations as are necessary to carry out during the normal operation of an to the lowest achievable level or that [the EPA Administrator’s] functions’’ appliance is generally not subject to the maximize the recapture and recycling of under the Act, to supplement its such substances, even if the regulations authority to issue regulations necessary venting prohibition. When establishing the original leak do not directly regulate ODS. Thus, as to address substitute refrigerants under repair provisions in 1993, the EPA in the 2016 Rule, to the extent that the section 608(c). Further, the agency stated that: extension of certain subpart F continues to interpret CAA section 114, requirements to non-exempt substitutes which provides authority to the EPA [T]he venting prohibition itself, which is necessary to achieve the purposes set Administrator to require recordkeeping applies to the maintenance, service, repair, forth in section 608(a)(3) (i.e., reducing and reporting in carrying out provisions and disposal of equipment, does not prohibit ‘‘topping off’’ systems, which leads to the use and emission of ODS to the of the CAA, as providing supplemental emissions of refrigerant during the use of lowest achievable level or maximizing authority to extend the subpart F equipment. The provision on knowing the recapture and recycling of such recordkeeping and reporting releases does, however, include the situation substances), the EPA concludes that the requirements to non-exempt substitutes. in which a technician is practically certain

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that his or her conduct will cause a release the normal operation of the appliance, that it is reasonable to interpret of refrigerant during the maintenance, rather than ‘‘in the course of ‘‘maintaining’’ to include the normal service, repair, or disposal of equipment. maintaining, servicing, repairing, or operation of the appliance. Knowing releases also include situations in disposing of’’ an appliance. The which a technician closes his or her eyes to The EPA is accordingly returning to operational leaks that trigger the leak obvious facts or fails to investigate them the agency’s reasonable interpretation of repair provisions may take the form of when aware of facts that demand 608(c) with respect to leaks, which had investigation. [58 FR 28672.] a slow leak that results in the need to add refrigerant, and such releases occur been long-held until it was revised in In the 2016 Rule, the EPA changed the in the weeks or months prior to the the 2016 Rule. Based on this change in agency’s interpretation of the venting servicing event. Leaks may also result interpretation, the EPA therefore prohibition as part of the rationale that from an unintended catastrophic failure, concludes that the leak repair supported applying the leak repair which leads to a subsequent service provisions apply to activities and requirements to non-exempt substitute event to recharge the appliance. Neither releases that are too distinct from those refrigerants. The EPA stated in the 2016 of these types of releases typically occur identified in section 608(c) to provide Rule that it: in the course of maintaining, servicing, the EPA with regulatory authority to concludes that its statements in the 1993 repairing, or disposing of an appliance. extend the leak repair regulations to Rule presented an overly narrow Rather, in these situations the release of non-exempt substitute refrigerants.13 interpretation of the statutory venting refrigerant typically occurs before the The EPA notes that under this prohibition. Consistent with the direction servicing event, and the owner or articulated in the proposed 2010 Leak Repair interpretation the venting prohibition operator may not be aware of the release Rule, EPA is adopting a broader under section 608(c) would continue to until it affects equipment performance. interpretation. When refrigerant must be apply to actions taken in the course of The EPA has always understood that added to an existing appliance, other than maintaining, servicing, repairing, or when originally charging the system or for a few appliances are leak-free, which seasonal variance, the owner or operator further supports the notion that leaks disposing of appliances containing non- necessarily knows that the system has leaks. commonly occur during the normal exempt substitute refrigerant, including At that point the owner or operator is operation of an appliance, rather than those containing 50 or more pounds of required to calculate the leak rate. If the leaks during appliance maintenance, service, such refrigerant. For example, knowing exceed the applicable leak rate for that repair, or disposal.12 The EPA has also release from cutting refrigerant lines particular type of appliance, the owner or when disposing of an appliance is operator will know that absent repairs, recognized that ‘‘[t]his is particularly subsequent additions of refrigerant will be likely for larger and more complicated prohibited. Similarly, opening an released in a manner that will permit the appliances like those subject to the appliance to repair a component refrigerant to enter the environment. subpart F leak repair provisions.’’ (81 without first isolating it and recovering Therefore, EPA interprets section 608(c) such FR 82313). the refrigerant would typically lead to a that if a person adds refrigerant to an In addition, while the 2016 Rule cited knowing release of refrigerant to the appliance that he or she knows is leaking, he various dictionary definitions of the environment during the service, or she also violates the venting prohibition term ‘‘maintain’’ to support an maintenance, or repair of an appliance unless he or she has complied with the interpretation that the inclusion of the and thus would also be prohibited. It is applicable practices referenced in concept of maintenance in section § 82.154(a)(2), as revised, including the leak also possible that some ‘‘topping off’’ repair requirements, as applicable. [81 FR 608(c) covered a broad range of may occur in an appliance with a leak 82285.] 11 activities involved in preserving that is so visible, audible, or frequent equipment in normal working order (see The EPA now concludes that this that adding refrigerant to the appliance 81 FR 82291), the EPA does not believe creates the practical certainty that the 2016 interpretation was unreasonable that Congress intended the statutory and that extending the leak repair refrigerant will be released term ‘‘maintaining’’ in section 608(c) to contemporaneously with the servicing provisions to substitute refrigerants include the normal operation of an exceeded the scope of the agency’s event to add refrigerant and therefore appliance. Congress did use broad may constitute a knowing release authority under section 608(c)(2). The language in 608(a) (‘‘use . . . of class I subject to the venting prohibition. For leak repair provisions include and class II substances’’) that example, hearing hissing or noticing a requirements to determine whether an encompasses activities during normal ruptured line while continuing to add appliance is leaking above the threshold operation of appliances. If Congress had refrigerant to an appliance would leak rate applicable to that type of intended for 608(c) to apply to normal appliance, to repair an appliance that operations, it could have included the constitute a knowing release. However, leaks above the applicable leak rate, and term ‘‘use’’ in section 608(c), as it did the EPA has no information to suggest to conduct verification tests and in section 608(a)—but it did not. In that this occurs in a substantial number periodic leak inspections on appliances addition, the term appears in section of situations, and the mere possibility of that have exceeded the threshold leak 608(c) as part of a group with three such an event does not justify a blanket rate, as well as requirements to retrofit other terms (‘‘servicing, repairing, or interpretation that ‘‘topping off’’ an or retire appliances that are not repaired disposing’’) that are distinct from appliance that has leaked, absent and recordkeeping and reporting normal operation of an appliance. Thus, adherence to the requirements at requirements. The 2016 interpretation is reading the term in the overall context § 82.157, is necessarily and per se a an unreasonable reading of section of section 608, the EPA does not believe violation of 608(c). 608(c)(2) because the refrigerant releases from such leaks typically occur during 12 Recognizing that appliances can leak during 13 Furthermore, the leak repair provisions are not their normal operation, § 82.157(g) requires periodic sufficiently related to ‘‘good faith attempts to 11 The EPA did not finalize the 2010 leak repair leak inspections of appliances with 50 or more recapture and recycle or safely dispose’’ of proposal (75 FR 78558). As noted in the 2016 Rule pounds of refrigerant that have been repaired after refrigerant under the de minimis exemption in (81 FR 82275), the EPA withdrew the 2010 proposal leaking above the applicable threshold rate. section 608(c) for that provision to provide in the 2016 rulemaking and re-proposed elements Automatic leak detection equipment is also allowed independent authority for the extension of the leak on the 2010 proposal in the notice of proposed in lieu of inspections for such appliances, or repair requirements to non-exempt substitute rulemaking (80 FR 69461) for the 2016 Rule. portions of such appliances. refrigerants.

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ii. Section 608(a) and recycling of ODS. For example, the entire extension of subpart F The EPA stated in the preamble to the since the EPA is retaining the requirements to non-exempt substitute 2016 Rule that the agency’s authority for requirement that only a certified refrigerants in the 2016 Rule given its extending the refrigerant management technician can open an appliance proposed interpretation. As described in regulations to substitute refrigerants is containing non-exempt substitute more detail below, after considering the based in part on section 608(a), in light refrigerant, it is unlikely that leaks in comments received, and analyzing the of the corresponding reductions in ODS appliances with 50 or more pounds of relevant provisions under the emissions and increases in ODS ODS refrigerant would not be repaired interpretive framework described in recapture and recycling that are because of a difference in the duty to Section II.B above, the EPA concludes expected to result from requiring repair between appliances containing that, except for the leak repair consistent practices for ODS and ODS and those containing substitute provisions, the 2016 Rule’s extension of substitute refrigerants. (81 FR 82288). In refrigerants. The repair of leaks in ODS- the subpart F requirements to non- part, this was based on the potential for containing appliances in this size range exempt substitute refrigerants was cross-contamination, refrigerant mixing, has been required since 1993, and within the scope of its authority under and related releases from ODS owners and operators of such section 608. Thus, aside from the appliances in the absence of consistent appliances as well as certified rescission of the extension of the leak practices. The response to comments for technicians are well aware of those repair provisions discussed in Section the 2016 Rule 14 also noted, in the requirements. II.C, the EPA is not withdrawing the context of explaining the EPA’s The EPA also does not believe that extension of any of the non-leak repair authority for the revisions to § 82.157, applying the leak repair provisions to provisions in subpart F to non-exempt that providing a consistent standard for appliances that use only non-exempt substitute refrigerants. substitute refrigerants would ODS and non-exempt substitute i. Section 608(c) refrigerants would reduce emissions of independently reduce cross- The EPA is retaining the extension of ODS by reducing the incidence of contamination, refrigerant mixing, or the non-leak repair provisions in failure to follow the requirements for related releases from an ODS appliance. subpart F for non-exempt substitute ODS appliances due to refrigerant As discussed further in Section II.D of refrigerants as appropriate measures to confusion. However, in neither this document, the agency will continue interpret, explain, and enforce the discussion did the EPA address to apply the other elements of the 608 venting prohibition and the de minimis whether, if all other subpart F program, such as the refrigerant sales exemption for non-exempt substitute requirements were extended to non- restriction, technician certification, refrigerants under 608(c). In contrast to exempt substitutes, it would be reclamation requirements, and the leak repair requirements, the other necessary to also extend § 82.157 to evacuation standards, to non-exempt provisions of subpart F that the EPA non-exempt substitute refrigerants to substitute refrigerants, and these extended to non-exempt substitute serve the purposes of section 608(a), as elements address those concerns. Taken refrigerants in the 2016 Rule relate articulated in sections 608(a)(3)(A) and together, the other subpart F directly to releases that necessarily (B). requirements also reduce the incidence After further consideration, the EPA of failure to follow the requirements for occur in the course of maintaining, believes that these statements in the ODS appliances. By contrast, servicing, repairing, or disposing of an 2016 Rule, which were advanced application specifically of the leak appliance. Accordingly, those generally and without distinction to repair requirements to equipment provisions directly address the potential support extending all the subpart F containing only substitute refrigerants for knowing releases of non-exempt requirements to non-exempt substitute would not lead to additional reductions substitute refrigerants that would be refrigerants, failed to recognize that the in ODS emissions. Nor would it lead to within the scope of section 608(c)(2) or leak repair provisions have a more additional increases in the recapture the application of the de minimis attenuated connection to the purposes and recycling of ODS because there is exemption to non-exempt substitute of section 608(a) when applied to non- no ODS in these appliances to be refrigerants under section 608(c)(2), and exempt substitute refrigerants than do recaptured or recycled. therefore are within the EPA’s authority the rest of the subpart F requirements, Thus, insofar as the 2016 Rule was under section 608(c)(2). The EPA has long recognized especially once application of all the grounded in an argument that section connections between the non-leak repair other subpart F requirements to such 608(a) supports the extension of the leak requirements in subpart F and the refrigerants is taken into account. After repair provisions to non-exempt potential for releases to occur during further consideration, the EPA believes substitute refrigerants, the EPA is appliance maintenance, service, repair, that extending the leak repair withdrawing that interpretation. or disposal, and continues to do so. For requirements to appliances containing Accordingly, the EPA concludes that the example, failure to properly evacuate an non-exempt substitutes is not necessary connection between applying the leak appliance (§ 82.156 and § 82.158) before to meet the purposes of section 608(a). repair requirements to appliances with opening it for servicing will create the Because the EPA is retaining the other only substitute refrigerants and serving practical certainty that the refrigerant in subpart F requirements for non-exempt the purposes in section 608(a)(3) is too the appliance will be released during substitute refrigerants, the rescission of tenuous to reasonably support reliance the servicing event. The requirement the extension only of the leak repair on CAA section 608(a) as a basis for that small appliances be equipped with requirements is unlikely to directly authority to extend the leak repair a process stub (§ 82.154(e)(2)) facilitates affect ODS emissions or the recapture requirements to non-exempt substitutes. the removal of refrigerant at servicing D. The EPA Had Authority Under and disposal. The requirements 14 Response to Comments for the Notice of Section 608 To Extend Subpart F Proposed Rulemaking: Protection of Stratospheric (§§ 82.156 and 82.158) that recovery Ozone: Update to the Refrigerant Management Provisions Other Than Leak Repair and/or recycling equipment be used Requirements under the Clean Air Act, pages 13– Provisions To Substitute Refrigerants during the maintenance, servicing, 14 (pdf pages 18–19). Available at: https:// www.regulations.gov/document?D=EPA-HQ-OAR- The EPA requested comments on repair or disposal of an appliance, and 2015-0453-0226. whether the agency should withdraw that such equipment be tested and

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certified by an EPA-approved laboratory into the atmosphere’’ was one of the venting prohibition under 608(c), the or organization, are intended ‘‘to ensure primary reasons many technicians agency also has authority to address that recycling and recovery equipment commented in support of the what constitutes disposal of an on the market is capable of limiting certification program when it was appliance. The agency defines emissions’’ during such servicing and initially promulgated. (58 FR 28691). ‘‘disposal’’ in Subpart F to mean ‘‘the disposal activities. (58 FR 28682). The Thus, the EPA continues to agree with process leading to and including’’ vapor recovery efficiency and the the assessment in the 2016 Rule that several listed activities, such as ‘‘the efficiency of noncondensable purge these refrigerant management provisions discharge, deposit, dumping or placing devices on recycling machines affect address releases that necessarily occur of any discarded appliance into or on total recovery efficiency and thus how in the course of maintaining, servicing, any land or water;’’ the ‘‘disassembly of much refrigerant will be released to the repairing, or disposing of an appliance. any appliance for discharge, deposit, environment once the appliance is Accordingly, the agency concludes that dumping or placing of its discarded opened for maintenance, servicing, the 2016 Rule’s extension of these component parts into or on any land or repair or disposal. After a certified subpart F requirements to non-exempt water’’ or for reuse of its component technician properly evacuates an substitute refrigerants is within the parts; the ‘‘vandalism of any appliance appliance according to the requirements scope of the EPA’s authority under CAA such that the refrigerant is released into of § 82.156, any remaining refrigerant section 608(c)(2), because these the environment or would be released that is then released during the requirements interpret, explain, or help into the environment if it had not been maintenance, service, repair or disposal enforce that provision’s venting recovered prior to the destructive prohibition and the application of the of the appliance can be considered a de activity;’’ and the ‘‘recycling of any de minimis exemption. minimis release associated with good appliance for scrap.’’ (§ 82.152). The EPA views the agency’s authority The reclamation requirements explain faith attempts to recycle or recover to extend the reclamation requirements how to ‘‘recapture and recycle’’ refrigerants. Similarly, disposing of an to non-exempt substitute refrigerants refrigerants that are recovered in the appliance without removing the under section 608(c) as relating course of servicing or disposing of an refrigerant as required under § 82.155 specifically to appliance servicing and appliance in lieu of releasing them into will result in the release of any disposal. By ‘‘reclamation the environment. Reclamation, a process remaining refrigerant during disposal of requirements,’’ the EPA means: The whereby used refrigerant is purified to the appliance. The EPA has long requirements under § 82.164, including meet required specifications and then emphasized this point. When the EPA the requirements to reclaim used permitted to be sold for reuse, is a first issued the safe disposal refrigerant before it is sold for use in an means of ‘‘recaptur[ing] and recycl[ing]’’ requirements in 1993, the EPA stated: appliance; the requirement that refrigerant. The reclamation ‘‘The Agency wishes to clarify that the reclaimed refrigerant be tested and meet requirements have the added benefit of prohibition on venting refrigerant AHRI Standard 700–2016, supporting a market in which includes individuals who are preparing Specifications for Refrigerants (an technicians can sell recovered to dispose of a used appliance.’’ (58 FR industry developed consensus standard refrigerant to reclaimers for 28703). The recordkeeping provisions at that the EPA has adopted into its compensation; this provides a financial § 82.155(c)(2) are necessary to ensure regulations); and the requirement that benefit to technicians who recover that disposers of small appliances are reclaimers be certified by the EPA and refrigerant during appliance disposal adhering to the venting prohibition and agree to meet certain standards. The rather than venting it.15 the evacuation requirements. Similarly, EPA interprets section 608(c), The interpretation that the the recordkeeping provisions at particularly the provisions relating to reclamation requirements directly relate § 82.156(a)(3) ensure that technicians the servicing and disposal of appliances to interpreting, explaining, and are adhering to the venting prohibition as described below, to provide authority enforcing the prohibition on venting and evacuation requirements when that supports the extension of the during appliance servicing and disposal disposing of mid-sized appliances. reclamation requirements to non- is further supported by the fact that These recordkeeping requirements help exempt substitute refrigerants. Congress included ‘‘releases associated ensure accountability for compliance Section 608(c)(1) states that ‘‘it shall with good faith attempts to . . . recycle with the venting prohibition, as well as be unlawful for any person in the course or safely dispose of any such substance’’ improving the enforceability of the of maintaining, servicing, repairing, or in the de minimis exemption to the prohibition. With respect to the sales disposing of an appliance . . . to venting prohibition. This indicates that restriction and technician certification knowingly vent or otherwise knowingly Congress clearly contemplated that requirements, consistent with its long- release or dispose of any class I or class certain refrigerant-related actions could standing view, the EPA continues to II substance used as a refrigerant . . . in be implicated by the appliance-related believe that ‘‘unrestricted sales will a manner which permits such substance actions covered by the venting enable untrained or undertrained to enter the environment.’’ Furthermore, prohibition. technicians to obtain access to the de minimis exemption encompasses The EPA further interprets the phrase refrigerants that are likely to be used ‘‘releases associated with good faith ‘‘recycle or safely dispose of any such improperly in connection with servicing attempts to recapture and recycle or substance,’’ when referring to either activities that will result in the venting safely dispose of any such substance ODS or non-exempt substitute of refrigerants’’ (58 FR 28698) and that . . .’’ As described above, the EPA refrigerants, to include reclamation. restricting servicing activities to interprets section 608(c)(2) to extend the Accordingly, the EPA believes the technicians trained on the regulatory prohibitions in 608(c)(1), including the extension of the reclamation requirements and proper use of restriction on releases in the course of equipment reduces emissions and disposing and servicing of appliances 15 Much of the refrigerant recovered and sent for enhances compliance (see 58 FR 28692). and the de minimis exemption, to reclamation occurs during the disposal of an appliance. However, some refrigerant that is sent for Further, ‘‘[e]ducating technicians on substitute substances. reclamation is also recovered during the servicing how to contain and conserve refrigerant As part of the EPA’s authority to of an appliance, including the retrofitting of an effectively, curtailing illegal venting interpret, explain, and enforce the appliance for use with a different refrigerant.

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requirements to non-exempt substitutes cylinders with mixtures of ODS and prohibit the immediate reuse of refrigerants is supported by 608(c) non-ODS substitutes. Contaminated recovered refrigerant, with the because these requirements interpret, appliances may lead to equipment exception of use in equipment owned explain, and enforce section 608(c)’s failures and emissions from those by the same entity owning the prohibition on releases of non-exempt systems, including emissions of ODS. equipment from which the refrigerant substitute refrigerants during the Contaminated refrigerant is more costly was removed. In 1993, the EPA servicing and disposal of appliances and to reclaim for re-use and the only other expressed concern that recovered the de minimis exemption for recycling option besides reclamation (or recycling refrigerant may contain moisture, acids, or safely disposing of such refrigerants. for use by the same owner) to avoid its oil, particulates, or other contaminants entry to the environment is that it be that can lead to serious damage to the ii. Section 608(a) destroyed. However, the costs of equipment if it is reused without taking The EPA also concludes that section reclaiming or destroying these mixed some action to remove these 608(a) provides the EPA authority for refrigerants incentivizes intentional contaminants. Recovered non-exempt the 2016 Rule’s extension of the non- releases, including of ODS, to the substitute refrigerants today contain leak repair subpart F requirements to atmosphere from contaminated those same contaminants as in 1993 the extent that there is demonstrably a appliances and recovery cylinders. with one significant difference: The connection between those requirements Applying the same requirements for increase in the use of substitute and the purposes of 608(a), as servicing and disposing of appliances refrigerants, including multi-component articulated in sections 608(a)(3)(A) and containing ODS and non-exempt blends, has resulted in more types of (B). As the EPA concluded in the substitute refrigerant ensures standard refrigerant encountered by technicians. preamble to the 2016 Rule: procedures are followed, which reduces Often ODS and non-ODS refrigerants are This action extending the regulations the possibility for errors and the risk of improperly recovered into the same under subpart F to non-exempt substitutes is ODS emissions associated with recovery cylinder, leading to mixed additionally supported by the authority in misidentification or mishandling of the refrigerant which contains both ODS section 608(a) because regulations that refrigerant. and non-ODS. This is supported by data minimize the release and maximize the The EPA also concludes that section reported annually by EPA-certified recapture and recovery of non-exempt 608(a) provides the EPA authority for reclaimers under § 82.164(d)(3) which substitutes will also reduce the release and the 2016 Rule’s extension of the show that the amount of mixed increase the recovery of ozone-depleting reclamation requirements to non- 16 substances. Improper handling of substitute refrigerant they receive is increasing. refrigerants is likely to contaminate exempt substitute refrigerants. The EPA The lack of consistent reclamation appliances and recovery cylinders with established the reclamation requirement requirements for non-exempt substitutes mixtures of ODS and non-ODS substitutes, for used ODS refrigerant in 1993 to could result in confusion about what to which can lead to illegal venting because prevent equipment damage, and the do if there is uncertainty about the such mixtures are difficult or expensive to resultant emissions caused by use of contents of a cylinder or about the reclaim or appropriately dispose of.... In contaminated refrigerant in appliances, proper treatment of mixtures. short, the authority to promulgate regulations and to provide confidence in the market Equipment can be damaged, resulting in regarding the use of class I and II substances for used refrigerants (58 FR 28678). encompasses the authority to establish refrigerant emissions, including ODS regulations regarding the proper handling of Because of the venting prohibition, emissions, if such mixed refrigerant is substitutes where this is needed to reduce combined with the phaseout of ODS, the not sent for reclamation but rather sold emissions and maximize recapture and EPA in 1993 anticipated a large increase and recharged into appliances designed recycling of class I and II substances. in recovered refrigerant and was for non-exempt substitute refrigerants. Applying consistent requirements to all non- concerned about the risks to appliances Reclamation requirements to remove exempt refrigerants will reduce complexity posed by use of contaminated impurities and separate mixed and increase clarity for the regulated refrigerant. As the EPA stated in the refrigerants reduce the likelihood of community and promote compliance with 1993 Rule, damaged equipment would those requirements for ODS refrigerants, as equipment failure and subsequent well as their substitutes. [81 FR 82286.] often leak during operation and would emissions of ODS. These requirements require servicing or replacement more also promote the recycling of ODS The 2016 Rule discussed how failure often than undamaged equipment, because once it is separated from the to apply consistent standards to increasing refrigerant emissions. mixed refrigerant the ODS can appliances containing non-exempt Damage to equipment would also subsequently be reclaimed for reuse. substitute refrigerants and those reduce consumer confidence in the In addition, the combined effect of the containing ODS refrigerants could lead quality of used refrigerant, leading to reclamation provisions relating to EPA’s to emissions of ODS (81 FR 82288). erosion of the market for used certification of reclaimers, the purity After additional consideration, the EPA refrigerants and possibly to their release. standards that reclaimed refrigerant affirms the potential for such As described further below, the 2016 must meet, and the testing of that inconsistent requirements to increase Rule’s extension of the reclamation refrigerant to ensure it meets those ODS emissions. For example, applying requirements to non-exempt substitute standards together provide confidence the sales restriction and technician refrigerants addresses these concerns in the market for used refrigerants. certification requirements for persons and therefore furthers the goals of Reclamation is performed by private servicing appliances using non-exempt section 608(a)(3) to reduce the businesses and is subject to market substitute refrigerants reduces the emissions of ODS and maximize the forces. Currently these market forces possibility that refrigerant in the recapture and recycling of ODS. provide a financial incentive to appliances may be misidentified or An important aspect of the technicians to recover refrigerant and mishandled by an uncertified person reclamation requirements is the send it to a reclaimer in as pure a state attempting to service the appliance. requirement that used refrigerant be as possible to maximize the Improper handling of non-exempt reclaimed to certain purity standards substitute refrigerants by persons prior to sale for re-use. By requiring that 16 These data can be found at: https:// lacking the requisite training may used refrigerant be reclaimed prior to www.epa.gov/section608/summary-refrigerant- contaminate appliances and recovery sale, the reclamation requirements also reclamation-trends.

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compensation they receive. Absent that venting. Most of these commenters disposing of appliances and on financial incentive, technicians may be support the EPA’s view of its authority providing an exemption for de minimis more likely to vent the refrigerant than as articulated in the 2016 Rule, both for releases without specifying the to send it for reclamation, which could the leak repair provisions and the non- mechanisms for carrying out this lead to ODS emissions when the leak repair provisions in subpart F. prohibition and exemption. In light of refrigerant vented is an ODS or a Other commenters, however, state that these differences in wording between mixture containing ODS. These market the EPA’s authority under 608(c) does 608(a) and 608(c), the EPA concludes in forces also sustain an industry whose not allow for the leak repair provisions this action that the 2016 Rule’s function is to reprocess used refrigerant. established in the 2016 Rule. One of extension of the full set of subpart F Reclamation is critical to achieving the those commenters states that the EPA requirements to non-exempt substitute goal of maximizing the recapture and has authority to establish the non-leak refrigerants exceeded its statutory recycling of ODS, as set forth in section repair requirements for substitutes, but authority under section 608 because the 608(a)(3)(B). Absent reclamation, banks not the leak repair provisions. Another extension of the full set of requirements of ODS refrigerant found in existing one of those commenters states that the (i.e., as an entirety) was inconsistent equipment, in stockpiles, or mixed with EPA’s authority under 608(c) does not with the more limited scope of the other used refrigerant will instead likely extend so far as to authorize regulations EPA’s authority under section 608 to be released, given the costs of for substitutes that are co-extensive with regulate substitute refrigerants as destruction. In sum, the EPA concludes the regulations required under 608(a) compared with its authority to regulate that the extension of the reclamation requirements for ODS. That commenter ODS refrigerants. In addition, as requirements to non-exempt substitutes states that the lack of an explicit grant explained in Section II of this is supported by section 608(a)(3) of authority from Congress for the EPA document, the EPA has concluded that because extending these requirements to to establish a regulatory program for the 2016 Rule’s extension of the leak non-exempt substitutes serves the substitutes indicates that no such repair requirements to non-exempt purposes set forth in 608(a)(3) of authority exists, arguing that substitute refrigerants exceeded its maximizing the recapture and recycling Congressional silence is not a delegation authority under both sections 608(c) and of ODS and reducing ODS emissions to of authority to regulate. Another 608(a). Therefore, the agency disagrees the lowest achievable level. commenter states that the EPA lacks with the comments concluding that the In conclusion, because the application authority to regulate substitutes in any EPA did have authority to extend the of the non-leak repair requirements to manner under section 608(c). The leak repair requirements to non-exempt non-exempt substitute refrigerants is commenter states that 608(c) is a self- substitute refrigerants, and agrees with connected to the purposes of section effectuating enforceable requirement to the comments that the extension of 608(a)(3) via the corresponding use good management practices and these requirements exceed the agency’s reductions in ODS emissions and does not provide the EPA with the authority under 608(c). increases in ODS recapture and authority to implement a regulatory To the extent that the comments are recycling that are expected to result program. intended to suggest that any overlap from maintaining the reclamation between regulations under sections requirements for non-exempt substitute The agency agrees that the EPA’s authority to issue regulations 608(a) and 608(c) exceeds the EPA’s refrigerants and retaining consistent statutory authority, the agency practices for ODS and non-exempt interpreting, explaining, and enforcing section 608(c) is not co-extensive with disagrees. The fact that Congress substitute refrigerants. Therefore, the required the EPA to address ODS EPA concludes that the extension of its authority to regulate under section 608(a). Thus, the agency disagrees with refrigerants in a specific way under these requirements is within the scope section 608(a), and then included a of its authority under CAA 608(a). the comments that supported the view of the EPA’s authority as articulated in separate provision under 608(c) to III. Summary and Response to Major the 2016 Rule. As explained in Section address knowing venting, release, and Comments II above, the agency now interprets disposal of ODS and substitute refrigerants during certain activities, This section summarizes many sections 608(a) and (c) together to does not demonstrate that Congress comments received on this rule, determine that while these provisions intended to preclude the EPA from particularly those related to the EPA’s are reasonably read to provide it some implementing section 608(a) and the legal authority to regulate substitute authority to regulate substitute venting prohibition in section 608(c) by refrigerants under section 608, and the refrigerants, its authority is more limited using similar requirements for ODS and EPA’s responses. Other comments for substitute refrigerants than for ODS. substitute refrigerants, when such an received for this action are addressed in In so doing, the EPA recognizes and approach is independently consistent Sections IV and V below, as well as in gives weight to the fact that sections with those statutory provisions. Taking the response to comments document 608(a) and 608(c) differ from one such an approach does not mean that found in the docket for this action. another in some key respects, including the fact that 608(a)(1) and (2) expressly the agency is using section 608(a) to A. Comments on the Scope of the require the EPA to issue regulations for implement section 608(c), or vice versa, Agency’s Authority To Regulate class I and class II substances, but but instead simply indicates that these Substitutes Under Section 608(c) include no such requirement for—or regulatory approaches can be justified 17 The EPA received multiple comments indeed any mention of—substitutes. In under both section 608(a) and 608(c). in support of the agency’s authority to contrast, 608(c) does explicitly apply to 17 As explained in the 2016 Rule, the EPA interpret and explain section 608(c) substitute refrigerants, but that continues to believe that using section 608(c) to through the issuance of regulations. subsection leaves the EPA discretion as establish similar requirements to those authorized These commenters point to the text, to whether to promulgate regulations under section 608(a) does not render section 608(a) purpose, context, and legislative history implementing its provisions and is a nullity: ‘‘Unlike section 608(c), section 608(a) is focused on preventing knowing releases not limited to refrigerants. EPA has applied its of section 608(c) to argue that the EPA authority under section 608(a) to establish or has broad authority to regulate of refrigerants in the course of consider regulations for ODS in non-refrigerant substitute refrigerants to prevent illegal maintaining, servicing, repairing, or applications. As an example, in 1998, EPA issued

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For example, as explained in Section II history indicates that in establishing the disposing of such substance does not above, the EPA concludes it was within venting prohibition, Congress expected pose a threat to the environment.’’ CAA its statutory authority under both the EPA to promulgate regulatory section 608(c)(2). Similarly, the sections 608(a) and 608(c) to extend the ‘‘provisions to foster implementation of regulations at § 82.154 in place before non-leak repair provisions in subpart F this prohibition, including guidance on the 2016 Rule included provisions to substitute refrigerants. what constitutes ‘de minimis’ and ‘good clarifying that ‘‘[ODS] releases shall be With regard to the comments that the faith’.’’ Report of the Committee on considered de minimis only if they EPA does not have regulatory authority Environment and Public Works United occur when’’ certain regulatory under section 608(c) either because that States Senate, Report Accompanying S. requirements are observed. provision is self-effectuating or because 1630 (S. Rept. 101–228) (December 20, (§ 82.154(a)(2) (2014)). However, those it does not contain explicit 1989) at 396 (reprinted in 5 A regulations did not provide the same authorization to issue regulations, the Legislative History of the Clean Air Act clarity regarding releases of non-exempt EPA disagrees. The agency has long Amendments of 1990, at 8736 (1993)). substitute refrigerants or what practices held and continues to maintain that Furthermore, as explained in Section would be considered to fall within the 608(c), though self-effectuating, II of this document, the agency ambit of ‘‘good faith attempts to recycle provides authority to issue continues to view section 608 as or recover’’ non-exempt substitute implementing regulations that interpret, ambiguous in important respects. In refrigerants. (§ 82.154(a)(2)). The EPA explain, and enforce the venting section 608(c) Congress provided an has long interpreted section 608(c)(2) to prohibition and the de minimis exemption to the venting prohibition for incorporate and extend both the venting exemption in section 608(c) and that certain de minimis releases, but it did prohibition and the de minimis include the venting prohibition in the not define what releases would be exemption in section 608(c)(1) to overall context of the regulatory scheme. considered ‘‘de minimis’’ nor which substitute refrigerants, but Congress did (See, e.g., 69 FR 11947). Thus, while activities would be considered ‘‘good not specify what practices or actions section 608(c) does not include a faith attempts to recapture and recycle should be taken to qualify for this requirement to issue regulations as or safely dispose’’ of such substances. exemption in either provision. Thus, it section 608(a) does, the agency does not Where Congress has not directly spoken is reasonable to interpret these view the lack of a requirement as to an issue or has left ambiguity in the provisions as indicating that Congress equivalent to a prohibition on issuing statute, that silence or ambiguity creates contemplated that the EPA would have regulations under section 608(c). This is an assumption that ‘‘Congress implicitly authority to resolve this ambiguity by not a situation where Congress was delegated to the agency the power to issuing regulations to implement section silent as to whether the statutory make policy choices that represent a 608(c). For these reasons, and as provision applies to substitutes. Rather, reasonable accommodation of explained in prior sections of this Congress specifically included conflicting policies that are committed document, the EPA continues to believe substitutes in the venting prohibition. It to the agency’s care by the statute.’’ that section 608(c) is reasonably also provided the agency additional National Ass’n of Mfrs. v. United States interpreted to provide it some authority discretion to exempt substitutes from DOI, 134 F.3d 1095, 1106 (D.C. Cir. to issue regulations applicable to the venting prohibition when it 1998). As the U.S. Supreme Court has substitute refrigerants and thus determined that the venting, release, or explained, the ‘‘power of an disagrees with these comments. disposal of the substitute did not pose administrative agency to administer a a threat to the environment. The EPA congressionally created . . . program B. Comments on Whether ‘‘Topping Off’’ construes the inclusion of substitutes in necessarily requires the formulation of a Leaking Appliance Constitutes a section 608(c)(2) in these ways to policy and the making of rules to fill Knowing Release Subject to the Venting indicate that Congress contemplated any gap left, implicitly or explicitly, by Prohibition that regulation of substitutes would Congress.’’ Chevron, 467 U.S. at 843–44. The EPA received multiple comments occur. Furthermore, while the EPA is Accordingly, Congress’s silence with stating that the operation of an not relying on CAA section 301(a) for regard to carrying out the venting appliance, and the ‘‘topping off’’ with primary or substantive authority in this prohibition and the exception for additional refrigerant, is not knowing action, the agency believes that the text certain releases leaves a gap for the venting prohibited under section 608(c). of CAA section 301(a), which provides Agency to fill. They state that venting must occur that the EPA may ‘‘prescribe such Consistent with this view, the EPA’s during the service, maintenance, repair, regulations as are necessary to carry out regulations at § 82.154 have included or disposal of an appliance to be [the EPA Administrator’s] functions’’ the venting prohibition since they were prohibited. Other comments disagree under the Act, supplements its authority originally promulgated in 1993. (58 FR with the EPA’s proposed decision to under section 608(c) to issue regulations 28714). Even before the 2016 Rule, the return to its pre-2016 interpretation of that interpret, explain, or enforce the subpart F regulations provided that ‘‘topping off.’’ A couple of commenters venting prohibition and the de minimis ‘‘[n]o person maintaining, servicing, state that the fact that refrigerant must exemption. In addition, as some repairing, or disposing of appliances be added demonstrates that there is a commenters point out, the legislative may knowingly vent or otherwise leak, which would continue if not release into the environment any repaired, and that a technician that a rule on halon management under the authority of refrigerant or substitute from such repeatedly tops off refrigerant from section 608(a)(2) (63 FR 11084, March 5, 1998). In appliances’’ and then provided for leaking equipment knows the refrigerant that action, EPA noted that section 608(a)(2) ‘directs exceptions from this prohibition for is being released. These commenters EPA to establish standards and requirements regarding the use and disposal of class I and II specified substitutes in specified end- object to the proposal to return to the substances other than refrigerants.’ 63 FR 11085. uses. (§ 82.154 (2014)). These exceptions prior interpretation of ‘‘topping off’’ Similarly, EPA considered whether to establish a implemented the discretion Congress because under that interpretation, no requirement to use gas impermeable tarps to reduce left the EPA under 608(c)(2) to exempt matter how significant the quantity of emissions of methyl bromide under section 608(a)(2), ultimately determining not to do so for certain releases from the venting lost refrigerant from a leaking appliance, technological and economic reasons. 63 FR 6008 prohibition, if the Administrator has it would not violate the venting (February 5, 1998).’’ (82 FR 82290). determined that ‘‘venting, releasing, or prohibition unless there was a practical

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certainty refrigerant was being released operation of an appliance. Rather, as in Section II above, a general analysis of during the servicing event. These discussed in Section II above, the EPA whether a provision leads to reductions commenters thought such a result believes it is reasonable to interpret this in ODS emissions would typically be conflicted with section 608’s purpose of term in light of the other terms in undertaken under section 608(a). In reducing emissions of ODS and their section 608(c) (servicing, repairing, or contrast to section 608(a), which substitutes. These commenters also disposing), all of which refer to requires regulations to reduce emissions generally found the EPA’s 2016 change activities that are distinct from the of ODS to the lowest achievable level, in its historical interpretation to be normal, day-to-day operation of the the agency interprets section 608(c) as reasonable and supported retaining that equipment. The EPA also disagrees with focusing on limiting particular types of interpretation. Other commenters look the commenters suggesting that failure emissions of ODS and substitute to the word ‘‘maintenance’’ in section to repair leaks is a failure to maintain refrigerants—those from knowing 608 as providing authority for the leak equipment that necessarily results in releases, venting, and disposal that repair provisions. One commenter states releases that violate the venting occur in the course of maintaining, that ‘‘maintenance’’ includes normal prohibition. The text of section 608(c)(1) servicing, repairing, or disposing of operation, noting the definition of prohibits knowing releases of ODS by appliances. The agency views its return maintenance includes ‘‘keep[ing] in an ‘‘any person, in the course of to its historic interpretation in this existing state’’ or ‘‘preserv[ing]’’ the maintaining, servicing, repairing, or action as consistent with the purposes machinery.18 Another comment states disposing’’ of appliances, and section of section 608(c) because it better that because proper maintenance 608(c)(2) extends that prohibition to focuses the regulations on knowing includes fixing leaks, failure to knowing releases of substitute releases that occur during the activities adequately repair leaks violates the refrigerants ‘‘by any person maintaining, listed in 608(c). In this interpretation it venting prohibition. servicing, repairing, or disposing of’’ an is not the quantity of refrigerant The EPA disagrees with commenters appliance. Thus, section 608(c) requires released, but rather the circumstances of that state that the ‘‘topping off’’ of a an actor (e.g., a technician) to conduct the release that determine whether the leaking appliance is necessarily one of a particular set of actions on an venting prohibition applies. The EPA prohibited under section 608(c). The object (an appliance) in order for the concludes that its legal authority under addition of refrigerant to an appliance venting prohibition to apply. The four section 608(c)(2) does not extend to during service, maintenance, or repair is terms ‘‘maintaining, servicing, repairing, emissions of substitute refrigerants that typically distinct and separate in time or disposing’’ included in section 608(c) do not occur during one of those four from the release of that refrigerant into are all forms of transitive verbs that activities. Thus, the agency agrees with the environment from a leak during the express an action by an actor (‘‘any the comments stating that the release normal operation of the appliance. As person’’) on an object (an appliance must occur during the service, discussed elsewhere in this document, containing or using refrigerant). maintenance, repair, or disposal of an while there may be a release of Interpreting the term ‘‘maintaining’’ as appliance to be prohibited under the refrigerant from a leaking appliance, all encompassing the lack of maintenance venting prohibition. appliances leak and such leaks typically or failure to repair leaks unreasonably A couple of commenters request that occur during normal operations. While transforms the prohibition against the EPA clarify how rescinding the 2016 there may be cases where there would knowing releases during certain defined Rule’s interpretation—that ‘‘topping off’’ be an ongoing release of refrigerant such activities into a requirement to a leaking appliance could in some that the refrigerant added to the system undertake those activities. In the EPA’s circumstances constitute a knowing is contemporaneously released and the view, it is not reasonable to interpret the release and violate the venting technician knows about such a release term ‘‘maintaining’’ to encompass prohibition—affects appliances during the servicing event (e.g., when normal, day-to-day operations of an containing ODS refrigerant. Noting that refrigerant is added to equipment that is appliance or to encompass failure to the proposed rule states that the Agency audibly or visibly leaking during the maintain an appliance. Rather, the EPA was not modifying any ODS provisions, servicing event), the EPA does not have concludes that the term ‘‘maintaining’’ the commenters state that the EPA any information to suggest that this is as used in section 608(c) should be should rescind this interpretation as it the norm. Accordingly, the EPA does interpreted to refer to work done on an applies to ODS appliances as well. The not have any information to suggest that appliance in furtherance of its EPA responds that the agency is these situations are common enough to continued functioning or to preserve its rescinding this interpretation for all sustain an extension of the leak repair existing state of repair. (See, e.g., The appliances, regardless of the type of requirements to equipment using solely American Heritage College Dictionary, refrigerant used. The original substitute refrigerants under the text of 4th ed. (Houghton Mifflin, 2002), at 834 interpretation that topping off an section 608(c). (listing definitions of ‘‘maintain’’ which appliance was not a knowing release The EPA also disagrees with the include ‘‘to keep in an existing state; was in the context of appliances commenters suggesting that inclusion of preserve or retain’’ and to ‘‘keep in a containing ODS refrigerant. (58 FR the term ‘‘maintaining’’ in section 608(c) condition of good repair or efficiency’’); 28672). Thus, reverting back to that provides the agency authority to apply Merriam Webster’s Collegiate original interpretation means it applies the leak repair provisions to appliances Dictionary, 11th ed. (Merriam Webster to appliances using ODS refrigerant, as containing only substitute refrigerants. Inc., 2003), at 749 (definitions of well as to those using non-ODS Contrary to the position that the EPA ‘‘maintain’’ include ‘‘to keep in an refrigerants. We further note that this took in the 2016 Rule (81 FR 82291), the existing state (as of repair, efficiency, or return to the original interpretation does EPA concludes in this action that the validity): preserve from failure or not change the required leak repair term ‘‘maintaining’’ in section 608(c) is decline <∼machinery>’’)). practices in § 82.157 for ODS not meant to encompass the normal The EPA disagrees with the comments equipment, as those requirements that its historic interpretation, to which reduce the emissions of ODS and 18 Maintain, MERRIAM–WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/ it returns today, is inconsistent with the maximize the recapture and recycling of dictionary/maintain (last visited Nov. 15, 2018). purpose of section 608(c). As explained ODS as provided in section 608(a). In

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addition, the agency is not changing the savings to owners and operators by containing a substitute will not reduce requirement under § 82.154(a)(2)(i) that encouraging proper leak management, the use or emission of ODS nor ODS releases only qualify for the de reducing harm to the atmosphere, and maximize the recapture and recycling of minimis exemption if certain regulatory reduced public safety hazards. ODS. practices, including those in § 82.157, The EPA responds that, as discussed The EPA responds that, as described have been observed. in Section II.B. above, while section in greater detail in Section II above, the 608(a)(3) states that regulations under agency interprets CAA section 608(a) to C. Comments on Whether Section 608(a) 608(a) shall include requirements that support the 2016 Rule’s extension of the Provides Any Statutory Authority To serve particular objectives and existing subpart F requirements to Regulate Substitute Refrigerants discretionary language about what appliances using only non-exempt The EPA requested comment on requirements those regulations may substitute refrigerants only if that whether, as a matter of statutory include, it does not contain any more extension is necessary to serve the interpretation, the agency can rely on specific mandates about how the purposes of 608(a). The EPA agrees with section 608(a) for the issuance of any of required objectives should be achieved. these commenters that applying the leak the subpart F requirements (leak repair Thus, the EPA agrees with the repair provisions to appliances or otherwise) for substitute refrigerants, comments that section 608(a) is containing only substitute refrigerants is including those provisions for which ambiguous with respect to the EPA’s not necessary to reduce ODS emissions there is demonstrably a connection authority to regulate substitute or to promote the recapture and between the regulatory requirement and refrigerants to achieve those purposes. recycling of ODS. This is especially true the purposes of section 608(a) to reduce Given this ambiguity, the EPA interprets since the EPA is retaining the non-leak use and emission of class I and II section 608(a) to provide authority to repair provisions in subpart F for non- substances to the lowest achievable issue regulations that reduce the use exempt substitutes. level and maximize the recapture and and emission of ODS to the lowest Three commenters state that the text recycling of such substances. As the achievable level or that maximize the of 608(a) demonstrates that Congress EPA discussed in the proposal, Congress recapture and recycling of such intended the section to provide an specifically required the EPA in section substances, even if the regulations do incentive to transition to non-ODS 608(a) to issue regulations for class I and not directly regulate ODS. Thus, as in substitutes. These commenters state that class II substances that would meet the 2016 Rule, to the extent that the rescinding the leak repair provisions for certain statutory purposes set forth in extension of certain subpart F non-exempt substitutes will restore that that section. But Congress did not list requirements to non-exempt substitutes incentive, which will minimize use and substitutes for coverage by those is necessary to achieve the purposes set emission of ODS. Likewise, one requirements. In contrast, section 608(c) forth in section 608(a)(3) (i.e., reducing commenter states that applying the does expressly apply to substitute the use and emission of ODS to the refrigerant management requirements to refrigerants. This difference between lowest achievable level or maximizing substitutes will disincentivize the section 608(a) and 608(c) could be the recapture and recycling of such development of new substitutes. interpreted as a manifestation of substances), the EPA concludes that the While the EPA is rescinding the leak Congressional intent to distinguish extension is within the ambit of its repair provisions for non-exempt between the categories of substances authority under section 608(a). substitutes based on its determination covered in these respective provisions However, the EPA disagrees with the that the extension of these provisions to and to only convey authority to address comments suggesting that 608(a) is so such substitutes exceeded its statutory substitute refrigerants under 608(c), not ambiguous as to allow the agency to authority because it was based on an 608(a), which is an issue on which the employ various policy rationales such unreasonable interpretation of that EPA solicited comment. as cost savings to the owners and authority, the EPA disagrees that section Three commenters state that 608(a) is operators, encouraging proper leak 608 drives the development of or not ambiguous with respect to the management, reducing harm to the transition to substitutes. Section 608 is extent to which Congress authorized the atmosphere, and reducing public safety one of several complementary measures EPA to issue refrigerant management hazards when considering whether the in Title VI of the CAA that support the regulations for substitutes. The extension of the subpart F requirements phaseout of class I and class II ODS. For commenters state that Congress did not to substitute refrigerants is supported by example, in section 610 Congress provide any explicit grant of authority 608(a). The EPA interprets section banned certain products containing in section 608(a) for the EPA to establish 608(a) to authorize the extension of ODS and granted the EPA authority a regulatory program for substitutes. The those requirements only if they meet the under to ban others. In section 611, fact that Congress so clearly provided explicit purpose(s) of that section, Congress required the EPA to such authority for ODS demonstrates including reducing the use and promulgate labeling requirements for that no such authority exists for emission of ODS to the lowest certain products containing or substitutes. One of those commenters achievable level and/or maximizing the manufactured with ODS. These aspects concludes that the EPA lacks the recapture and recycling of such of Title VI more directly establish discretion it claims to regulate non- substances. For the reasons discussed in incentives and support the transition to exempt substitutes in any manner. Section II of this document, the EPA ODS alternatives than the provisions in Other commenters state that the scope concludes that section 608(a) does not section 608, which establish a national of 608(a) is ambiguous and that to the support the 2016 extension of the leak recycling and emission reduction extent that the EPA determines that the repair requirements in § 82.157 to non- program. Further, the production and statutory language is ambiguous, then exempt substitute refrigerants but does import of class I ODS has been phased the EPA is free to make a policy support the extension of the non-leak out and the production and import of decision to resolve the ambiguity. These repair requirements to such refrigerants. class II ODS is well underway. commenters state that there are many Some commenters state that 608(a) Allowances for production and import policy rationales that support regulating does not provide authority to require of the most common HCFC refrigerant, non-ODS substitutes to an equal extent repairing leaks of non-ODS substitutes HCFC–22, are set to decline to zero in as the regulation of ODS, including cost because repairing an appliance 2020 (§§ 82.16, 82.15(e)). In addition,

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use restrictions issued pursuant to the extension of the non-leak repair reclamation. These data support the section 605(a) prohibit use of newly subpart F requirements to substitutes. anecdotal statements and comments produced HCFC–22 in equipment Specifically, the commenter states that made by individual reclaimers and manufactured on or after January 1, the agency did not provide any data technicians that they are encountering 2010 (§ 82.15(g)(2)). The section 605(a) concerning frequency of refrigerant more mixed refrigerant. The data are use restrictions further prohibit use of contamination, equipment failures due available on the EPA’s website and newly produced HCFC–123 in to contamination, and misidentification. some of the comments and statements equipment manufactured on or after The commenter states that its members, are in the docket to this rule.19 The EPA January 1, 2020 (§ 82.15(g)(4)). While including one that has 75 separate also expects that the reported data are used HCFCs are not subject to these facilities, could not identify any an underestimate of the total amount of restrictions, the HCFC production and examples of substitute contamination or mixed refrigerant since mixed import phaseout and the restrictions on mismanagement. Multiple other refrigerant is often vented or not sent to use of newly produced HCFCs provide commenters state that a single, uniform, reclaimers, and thus those amounts are clear market signals regarding future and consistent management system for unavailable to be reported. availability of HCFC refrigerants. ODS and substitute refrigerants makes In addition, as discussed in the 2016 Thus, the provisions of Title VI, taken refrigerant management easier for Rule, the use of R–22a (a non-exempt together, provide a variety of incentives technicians maintaining, servicing, or substitute refrigerant) as a replacement for the transition from ODS to disposing of refrigeration equipment, for R–22 (an ODS refrigerant) indicates substitutes. In section 608(c)(2), and increases the chances that to the EPA that people are purchasing however, Congress indicated a concern technicians will not release class I or their own refrigerant and adding it to about the potential environmental class II refrigerant. Some of these systems with ODS refrigerant. R–22a, impacts of substitute refrigerants by comments were limited to the non-leak which is propane, in some cases mixed extending the venting prohibition to repair provisions of Subpart F and some with isobutane and an odorant, has been substitute refrigerants, unless the EPA were inclusive of the leak repair marketed as a ‘‘drop-in’’ (or more determines that for particular provisions. Several refrigerant appropriately termed a ‘‘retrofit’’) substances such releases do not pose a technicians and reclaimers in their replacement for existing equipment, threat to the environment. comments relay instances where a typically residential split air- To the extent that the extension of layperson has mixed refrigerant or conditioning systems, which are subpart F regulatory requirements to attempted an improper retrofit or other designed for use with HCFCs or HFCs. non-exempt substitute refrigerants is maintenance and caused the release of The EPA has listed propane and R–22a supported by section 608(c), that refrigerant. Other commenters state that as well as all ASHRAE Flammability extension provides clarity and certainty refrigerant mixing would increase if the Class 3 Refrigerants as unacceptable for to owners, operators, and people sales restriction for non-exempt retrofit in residential and light servicing, maintaining, repairing, or substitutes were rescinded. commercial unitary split AC and heat disposing of air conditioning and The EPA’s understanding of the pumps under the Significant New refrigeration equipment of how they can industry indicates that technician errors Alternatives Policy program. The avoid violating the venting prohibition. can result in refrigerant mixing, and Agency learned through its enforcement Such clarity and certainty with regards catastrophic equipment failure as a actions against Enviro-Safe and to the venting prohibition are consistent result. The agency’s understanding is Northcutt, two distributors of R–22a, with the EPA’s overall efforts under consistent with and supported by and through other investigations, that Title VI to facilitate a smooth transition information that stakeholders have R–22a has been sold to both consumers from ODS to substitute refrigerants. provided to the agency, including and certified technicians. Often the Thus, while facilitating a smooth information submitted during the buyers are not aware there is a transition to substitutes is not a basis for development of this rulemaking and difference between R–22 and R–22a, or this action, the EPA disagrees with the included in the record for this rule. even that R–22a is flammable. As a comments suggesting that applying Moreover, the EPA has supporting result, appliances have exploded, subpart F provisions to non-exempt evidence from enforcement actions resulting in the release of refrigerant substitute refrigerants reduces pertaining to R–22a and reported that consists in part of ODS, and people incentives for the development of or reclamation data that mixing does have been injured. Together, this data transition to substitutes. occur. Many entities including from reclaimers and information on R– The EPA solicited comment regarding refrigerant reclaimers, equipment 22a support the view that applying the scenarios where failure to apply manufacturers, technicians, and sales restriction and technician consistent standards for the non-leak equipment owners have notified the certification requirements to non- repair provisions in Subpart F could agency that mixed refrigerant is exempt substitute refrigerants serves the lead to emissions of ODS. These becoming increasingly prevalent as the purposes of section 608(a) because it scenarios include contamination caused number of substitutes for ODS in use prevents the mixing and subsequent by the improper handling of non- increases. The EPA finds credible the exempt substitute refrigerant, information provided by commenters release of ODS refrigerants, including in equipment failure due to mixed or who identified examples of refrigerant mixtures with substitute refrigerants. Two commenters state that cross- contaminated refrigerant, venting of releases related to mixing of refrigerants contamination of ODS and non-exempt contaminated refrigerant due to cost of or attempted improper retrofit or other substitute refrigerant does not occur handling and reclaiming refrigerant in maintenance. appliances, and venting due to an Evidence of refrigerant mixing comes because they operate at different individual misidentifying an ODS from data reported to the EPA by pressures so there are no concerns that refrigerant as a substitute refrigerant reclaimers. The amount of mixed ODS will be emitted if there are no when performing maintenance on an refrigerant being received by reclaimers 19 Mixed Refrigerant Received Totals by Year appliance. (83 FR 49340). has been increasing since 2012 by total (Pounds), available at https://www.epa.gov/ One commenter states that the EPA volume or since 2013 as a percentage of section608/summary-refrigerant-reclamation- provided no technical basis to warrant the amount of refrigerant sent for trends.

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controls on substitute refrigerants. In The EPA agrees with the comments example that CAA section 608(c) contrast, another commenter states that that rescinding the reclamation authority extends to any ‘‘release’’ many class II (and in some cases, class requirements for non-exempt substitute whether by means other than use or I) substances can be used refrigerants would likely result in an disposal. interchangeably with HFCs and other increase in ODS emissions. As The EPA responds that the agency has substitute refrigerants, though discussed further in Section II.D. of this appropriately considered the authority sometimes requiring equipment document, the reclamation requirements granted to the agency under section 608, modification. Other commenters state for non-exempt substitute refrigerant considering that section as a whole, in that ODS and ODS substitutes can be prohibit the resale of mixed used reaching the interpretations supporting used interchangeably in many refrigerant and support a market-based this action. Based on that consideration, applications, and service technicians are process from the technician or recovery the EPA disagrees that reading 608(a) likely to encounter both types of company to the refrigerant distributor and (c) together indicates that Congress refrigerants. In California, and ultimately the reclaimer to return intended simply to stagger similar approximately 17% of reporting used ODS and non-exempt substitute requirements for ODS and substitutes. facilities have both ODS and HFC refrigerant to the same purity level as Were this the case, Congress could have systems. newly produced refrigerant. The inserted requirements to regulate The EPA disagrees with the comment requirement that recovered ODS and substitutes in 608(a) that were effective saying that cross-contamination of ODS non-exempt substitute refrigerant be in 1995, in a similar manner to the way and non-exempt substitute refrigerant reclaimed to meet industry purity it made the venting prohibition effective cannot occur because they operate at standards before being resold, with for substitutes effective November 15, different pressures. R–22 has been the limited exceptions, implements the 1995 in 608(c)(2). But it did not. While dominant ODS refrigerant and is being direction in section 608(a)(3) to reduce Congress chose to stagger the replaced with several non-exempt the use and emission of ODS to the requirements in 608(a) for class I and substitute refrigerants that operate at lowest achievable level, and to class II ODS, with section 608(a)(1) similar pressures (e.g., R–404A, R– maximize the recapture and recycling of requiring the EPA to issue certain 407A, and R–407C). In those situations, such substances, as explained further in regulations for class I substances by cross-contamination of ODS and Section II.D. of this document. The EPA January 1, 1992, and 608(a)(2) requiring substitute refrigerant, refrigerant mixing, concludes that section 608 provides the other regulations for class I and class II substances by November 15, 1994, it did and related releases of ODS can occur. EPA authority for the 2016 Rule’s not include such a staggered date for The EPA agrees with the comments that extension of the reclamation substitutes. Nor did it even mention ODS and substitute refrigerants have requirements to substitute refrigerants substitutes in these provisions. inappropriately been used and is therefore not finalizing a Similarly, while Congress staggered the interchangeably. The EPA frequently rescission of the reclamation standards. application of the venting prohibition in hears from industry stakeholders, D. Comments Regarding How Holistic section 608(c) to ODS and substitutes, similar to comments received on the Interpretations of Section 608 and Other that only indicates that Congress proposal, that technicians are ‘‘topping Sections of Title VI May Relate to EPA’s intended for the venting prohibition to off’’ R–22 systems with non-exempt Authority To Regulate Substitute apply equally to both substitutes and substitute refrigerant, particularly Refrigerants ODS after November 15, 1995. As during the final stages of the R–22 One commenter states that the EPA explained in greater detail in Section II phaseout which has seen price spikes. must read section 608 as a whole, of this document, the EPA concludes Improper retrofits or refrigerant mixing consistent with giving meaning to the that, reading section 608 as a whole, its can occur even when the operating full statutory provision. This commenter authority to address substitutes under pressure is different, especially when further asserts that doing so shows that section 608 is more limited than its appliances are serviced by untrained Congress intended to only stagger authority to address ODS. personnel. This mixing of refrigerant requirements for ODS and non-exempt The EPA agrees with the comment with different operating pressure makes substitutes, with ODS requirements that that the verbs used in section 608(a) catastrophic equipment failure and applying starting in 1992 and those for suggest a broader scope of authority release of the refrigerant charge even substitutes starting in 1995, not to create than those in 608(c). As noted in more likely. a more limited regulatory program for Section II above, sections 608(a)(1) and A few commenters state that substitutes. A few commenters state that (2) broadly authorize regulations for the eliminating the reclamation requirement section 608(a) is broader than 608(c) in ‘‘use and disposal’’ of ODS, and section for non-exempt substitute refrigerants that it provides the EPA the authority to 608(a)(2) clarifies that this ‘‘includ[es] would set in motion market forces that regulate ‘‘use’’ of an ODS while 608(c) use and disposal during service, repair, would ultimately result in an increase is limited to service, maintenance, or disposal’’ of appliances. The term in ODS emissions. Specifically, the repair, or disposal of an appliance. ‘‘includ[es]’’ in 608(a)(2) indicates that commenter states that technicians These commenters state that this ‘‘use and disposal’’ can occur during would resell recovered substitute difference in wording indicates that activities other than ‘‘service, repair, or refrigerants to other customers rather Congress intended for different disposal.’’ These are three of the four than sending them for reclamation. This requirements to apply to ODS and activities mentioned in section 608(c), would reduce the profitability and substitutes. Another commenter states which prohibits knowing releases ‘‘in ability of reclaimers to reclaim the ODS that because section 608(c)(2) extends to the course of maintaining, servicing, refrigerants that they do receive. The the ‘‘knowing release’’ or the disposal of repairing, or disposing’’ of appliances. comment explains that reclaimers might substitutes, it provides broader legal As explained elsewhere in this stop accepting ODS refrigerants and authority than exists within the document, the EPA interprets the fourth technicians would then either resell Administrator’s authority to establish term, ‘‘maintaining,’’ as similar in scope contaminated refrigerant, vent the ODS standards regarding the ‘‘use and to ‘‘servicing, repairing, or disposing’’ refrigerants to the atmosphere, or pay disposal of class I substances’’ under and to refer to work done on an for proper disposal, likely in that order. CAA section 608(a), offering the appliance in furtherance of its

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continued functioning or to preserve its indicating when it intended for ODS substitutes, and, as indicated by the existing state of repair. Thus, the EPA and substitutes to be treated the same, provision that allows the EPA to exempt concludes that Congress envisioned that and that it chose not to do so in 608. In substitute refrigerants from the venting the regulations under section 608(a) support of this argument, the prohibition if it determines that venting, would affect a broader range of activities commenter points out that the release, or disposal of such substitute than those under section 608(c). In definition of refrigerant in section 609 does not pose a threat to the addition, as described in greater detail includes class I and class II substances, environment, specifically contemplated in Section II above, the EPA now reads as well as any substitute substance that threats to the environment other sections 608(a) and (c) together to beginning November 15, 1995. The EPA than stratospheric ozone depletion determine that its authority is more responds that as described in greater would be considered in implementing limited for substitute refrigerants than detail in Section II above, it interprets the venting prohibition under section for ODS. However, the EPA does not its authority to address substitutes 608(c)(2). In addition, the Supreme believe that this means none of the same under section 608 as more limited than Court has recognized the ‘‘wise rule that provisions can be applied to ODS and its authority to address ODS, based in the title of a statute and the heading of substitute refrigerants. Rather, the EPA part on the inclusion of the term a section cannot limit the plain meaning believes the same provision can apply to ‘‘substitute’’ in section 608(c)(2) but not of the text’’; while they may provide a both ODS and substitute refrigerants sections 608(a)(1) and (2). Section 609 is ‘‘short-hand reference to the general where the agency can reasonably a distinct provision from section 608 subject matter involved,’’ they are not conclude that extending a requirement and is highly specialized, being focused ‘‘necessarily designed to be a reference that previously only applied to ODS on motor vehicle air conditioners, guide or a synopsis.’’ Bhd. of R.R. refrigerants to substitute refrigerants is which were one of the first uses to Trainmen v. Balt. & O.R. Co., 331 U.S. an appropriate application of its transition to substitutes. The EPA 519, 528–29 (1947) (internal citations authority under either section 608(a) or believes this comment provides omitted). Thus, the EPA does not (c), under the interpretive framework set additional support for the agency’s interpret the title of Title VI as forth in Section II above. The EPA conclusion that its authority to regulate precluding it from regulating substitute disagrees with the comment that substitutes under section 608 is not as refrigerants, where such regulation is 608(c)(2) is broader than 608(a) because extensive as its authority to regulate otherwise authorized under the Act. it extends to ‘‘any release.’’ As ODS. However, the EPA does not Moreover, as described in Section II discussed in Section II, the releases believe that section 609 should be read above, in re-assessing the scope of its prohibited under section 608(c)(2) are to suggest that the agency has no authority for the 2016 Rule’s extension limited to those that occur ‘‘in the authority to regulate substitute of subpart F provisions to substitute course of maintaining, servicing, refrigerants under section 608, as refrigerants, the EPA has considered repairing, or disposing’’ of appliances, a section 608(c), like section 609, does whether the extension of those narrower range of activities than the mention both ODS and substitute provisions serve the purposes of section broad range of ‘‘use and disposal’’ refrigerants and applies the venting 608(a) by maximizing recyling or activities featured in section 608(a). prohibition to both beginning November recovery of ODS and/or reducing Two commenters state that reading 15, 1995. Nor does anything in section emissions of ODS to the lowest sections 608 and 612 together indicates 609 indicate whether certain refrigerant achievable level and has determined that Congress sought to avoid solving management requirements for that the extension of those provisions one problem (ozone depletion) only to substitutes might be necessary to with the exception of the leak repair create another, in this case GHG achieve the purposes of section 608(a), requirements met such purposes. emissions. They argue that given the which covers a broad range of uses, with policy choices that are embodied in Three commenters cite section 602(e) widely varying timelines for the for the proposition that Congress did not section 612—to replace ODS with transition from ODS. For the reasons substitutes that lower the overall risks to intend to address GHGs in any of Title described further in Section II, the VI. That section requires the EPA to human health and the environment— agency continues to reasonably interpret and the fact that HFCs have not been publish the global warming potential both section 608(a) and (c) to provide exempted from the venting prohibition, (GWP) of class I and class II substances some authority to regulate substitute the EPA should take an expansive read but states that such required publication refrigerants, to the extent consistent of the Agency’s authority to regulate ‘‘shall not be construed to be the basis with the text of those provisions, and substitutes. of any additional regulation under this The EPA responds that CAA sections this action appropriately aligns its chapter.’’ The EPA responds, as above, 612 and 608 are distinct provisions, and regulation of substitute refrigerants with that this action addresses non-exempt the EPA does not believe it is reasonable its statutory authority under 608. substitutes without distinction as to to interpret the policy objectives of One commenter states that the name whether they are GHGs and indeed section 612 as expanding the agency’s of Title VI (Stratospheric Ozone without distinction as to any other ability to regulate substitutes under Protection) indicates that Congress attribute. Regardless, section 602(e) does section 608 beyond the authority intended to only address stratospheric not mention substitutes. Section 602(e) conveyed in the text of 608 itself. As ozone depletion, not GHG emissions. relates to the GWPs of ODS, and neither explained in Section II above, because The EPA responds that this action directs the publication of GWPs of the agency has determined that the 2016 addresses non-exempt substitutes substitutes nor makes any statement Rule’s extension of the leak repair without distinction as to whether they regarding regulation of such substances. requirements to appliances using only are GHGs and indeed without In any event, the EPA is not regulating non-exempt substitute refrigerant distinction as to any other attribute. either ODS or substitutes on the basis of exceeds its statutory authority, it is Further, the text of 608(c) demonstrates their GWP in this action. Furthermore, rescinding that extension. that Congress was addressing both class the EPA did not rely on section 602 as Another commenter states that I and class II refrigerants and substitute authority for the extension of subpart F reading 608 and 609 together indicates refrigerants. Congress specifically to non-exempt substitutes in 2016, nor that Congress was capable of clearly applied the venting prohibition to is it relying on section 602 for the action

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being taken in this rulemaking. In the action. See, e.g., Encino Motorcars, 136 ‘‘is rationally related to the goals of the 2016 Rule, the EPA extended the S.Ct. at 2125. As discussed elsewhere in statute.’’ subpart F regulations to all substitute this preamble, including in detail in The EPA does not agree that this refrigerants that are not exempt from the Section II above, the reason for today’s action will result in increased emissions venting prohibition irrespective of their action is not a change in policy, but of the pollution that section 608 seeks GWPs. In this action, the agency’s rather a determination that the agency to limit, nor that this action is not decision to rescind the 2016 Rule’s exceeded the scope of its legal authority rationally related to the goals of the extension of the leak repair under the CAA in the 2016 Rule by statute. With respect to section 608(a), requirements to equipment containing extending the leak repair provisions to that section focuses on reducing only non-exempt substitute refrigerants equipment containing only non-exempt emissions of ODS. The EPA has been is based on the conclusion that the substitute refrigerants based on an implementing regulations under section extension exceeded the agency’s unreasonable interpretation of its 608(a) of the CAA for decades and has authority under section 608 because it authority. The EPA has provided a been appropriately reducing the use and emission of ODS refrigerants through was based on an unreasonable reasoned explanation of its current those regulations. As discussed in interpretation of that authority. interpretation of its legal authority in Section II above, the EPA has Section II of this document and E. Comments Regarding Whether the determined that leak repair provisions Agency Has Provided a Reasoned Basis explained why that interpretation as applied to appliances containing only for This Action requires the rescission of the 2016 substitute refrigerants are not needed to One commenter states that the EPA’s extension of the leak repair reduce the use and emissions of ODS reinterpretation of its legal authority fits requirements to substitute refrigerants. refrigerants or to maximize the squarely within the authority that Even if the facts and circumstances that recapture and recycling of ODS supports an agency’s ability to change underlay that extension, or were refrigerants, especially if the other its policy (citing Chevron, U.S.A., Inc. v. engendered by it, could be cited to subpart F provisions are in place for NRDC, Inc., 467 U.S. 837, 863–64 provide a policy basis for applying the non-exempt substitutes. As explained in (1984)). Some commenters state that the leak repair requirements to non-exempt Section II of this document, the EPA EPA has not offered an adequate substitute refrigerants, the EPA cannot concludes that this action is necessary rationale for this action and fault the do that because doing so exceeds its because the 2016 Rule exceeded its agency for not providing substantial legal authority. An agency may ‘‘justify statutory authority. With respect to evidence for changing its previous its policy choice by explaining why that section 608(c), the agency interprets findings. These commenters state that policy ‘is more consistent with statutory section 608(c) to apply only to knowing when changing policy, ‘‘a reasoned language’ than alternative policies,’’ releases that occur in the course of explanation is needed for disregarding Encino Motorcars, 136 S.Ct. at 2127 maintaining, servicing, repairing, or facts and circumstances that underlay or (quoting Long Island Care at Home Ltd. disposing of appliances. Because were engendered by the prior policy’’ v. Coke, 551 U.S. 158, 175 (2007)), as operational leaks of substitute (citing FCC v. Fox Television Stations, the agency has done here. In addition, refrigerants that would typically trigger 556 U.S. 502, 516 (2009)). Another the agency does not agree with the the leak repair provisions do not occur commenter states that the EPA failed to commenters’ claim that it needs to during one of those four activities, the provide the requisite ‘‘good reasons’’ for provide more rationale for this change EPA does not agree that this action will its change (citing id. at 515). Some of than if it were acting in the first result in increased emissions of the these commenters state that ‘‘an agency instance. See Encino Motorcars, 136 pollution that section 608(c) seeks to changing its course by rescinding a rule S.Ct. at 2126 (‘‘When an agency changes limit. is obligated to supply a reasoned its existing position, it ‘need not always IV. Extension of the January 1, 2019 analysis for the change beyond that provide a more detailed justification which may be required when an agency Compliance Date for the Appliance than what would suffice for a new Maintenance and Leak Repair does not act in the first instance’’ (citing policy created on a blank slate.’ ’’) Motor Vehicle Mfrs. Ass’n v. State Farm Provisions for Non-Exempt Substitute (quoting FCC v. Fox Television Stations, Refrigerants Mutual Auto Ins. Co., 463 U.S. 29, 42 Inc., 556 U.S. 502, 515 (2009)). (1983)) and argue that the EPA has However, even if it did, the EPA The 2016 Rule established a January failed to provide a sufficient believes that the detailed description in 1, 2019 compliance date for the leak repair provisions. In establishing that justification for the change. Other Section II of this document would compliance date, the agency had found commenters state that the EPA ignores satisfy that standard, especially that two years was sufficient time for the fact that harmful emissions would considering that it is undertaking this owners and operators of appliances with increase under today’s action, arguing action to rescind a regulatory provision that this shows that the EPA has failed 50 or more pounds of refrigerant to learn that exceeds its statutory authority. to ‘‘examine the relevant data and about the updated requirements and Accordingly, the EPA agrees with the articulate a satisfactory explanation for prepare for compliance. (81 FR 82343). comments that stated this action is well its action including a rational The 2018 proposal for this action within the agency’s authority to change connection between the facts found and explained that the EPA was evaluating existing regulatory requirements. the choice made’’ (citing State Farm, whether that compliance date remained 463 U.S. at 43)). Two commenters state that rescinding viable or whether it should be extended. The EPA disagrees that the agency has the leak repair provision for non-exempt The EPA proposed to take final action failed to provide an adequate rationale substitutes is arbitrary and capricious to extend the compliance date in for this regulatory change. To begin, we because it would result in more of the § 82.157(a) for appliances containing note that the agency ‘‘obviously ha[s] pollution the CAA seeks to limit and only non-exempt substitute refrigerants broad discretion to reconsider a then goes on to discuss the forgone if final action on the substantive regulation at any time,’’ Clean Air annual GHG emissions reductions. They portions of the proposed rule would not Council, 862 F.3d at 8–9, as long as it also state that the EPA has not occur within a reasonable time before provides a reasoned explanation for its explained how the new interpretation the existing compliance date. At that

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time, however, the EPA lacked specific requirements for appliances that contain numerous other commenters, state that information relating to the continued non-exempt substitute refrigerants failure to consider a relevant factor such viability of the compliance date. The without any extension of that as cost could make the agency action EPA requested comment on whether compliance date. unlawful. The EPA agrees as a general facilities would encounter practical matter that the agency has the authority V. Economic Analysis difficulties in meeting the compliance to consider costs and benefits in date and stated that it intended to The EPA does not interpret section regulations promulgated under section consider such information in deciding 608 to require it to consider costs and 608. (See, e.g., 81 FR 82287). However, whether a compliance date extension benefits or select the option with the the consideration of costs and benefits was needed. The EPA further requested best cost-benefit outcome. Section 608 described in the technical support comment on any hardship that owners does not explicitly address whether documents in the docket are provided or operators of appliances would face if costs or benefits should be considered for purposes of transparency and to the compliance date was not extended in developing regulations under that inform the public about the implications and on any forgone benefits from such section. Because the statutory language of this action relative to those described an extension. Finally, the EPA requested does not dictate a particular means of in the economic analysis provided for comment on its ability to finalize a taking economic factors into account, if the 2016 Rule following agency compliance date extension. at all, the EPA has discretion to adopt guidance on assessing economic costs Multiple commenters state that the a reasonable method for doing so. In this and benefits. This action rescinds the EPA has the authority and should rule, the EPA has focused on the proper extension of requirements that exceeded finalize an extension of the compliance scope of the agency’s authority to the agency’s statutory authority. The date for the leak repair provisions as regulate. agency cannot impose obligations that they apply to non-exempt substitutes. The EPA is removing the requirement exceed its statutory authority, Several commenters state that the EPA to comply with the leak repair irrespective of the costs and benefits should take a separate action to extend provisions for appliances containing associated with those requirements. the compliance deadline. They argue only non-exempt substitute refrigerants The EPA received numerous that the extension would help eliminate as the EPA has determined that the 2016 comments on the agency’s analysis of the burden of implementing compliance Rule’s extension of those provisions to the costs and benefits of the proposed plans that are expected to no longer be non-exempt substitute refrigerants rule. Several commenters state that it is needed when the rule is finalized, and exceeded the agency’s statutory arbitrary to not monetize the climate that the separate rule should be issued authority because it relied on an damages caused by the forgone emission as far ahead of December 31, 2018 as is unreasonable interpretation of that reductions resulting from rescinding the possible to minimize any burdens. authority. These provisions include extension of the leak repair provisions Commenters state that a 6- to 12-month requirements to repair equipment that is to non-exempt substitutes. Commenters delay in compliance would provide leaking above the regulatory threshold, also argue that: Use of the Interagency certainty to the industry. Some suggest along with the associated verification Working Group’s social cost of GHGs that the extension should be a full tests, leak inspections, and metric would have found that the twelve months, which would move the recordkeeping. climate damages of the proposed rule’s compliance date to January 1, 2020. Details of the methods used to forgone emissions reductions outweigh However, several other commenters do estimate the costs and benefits of this the estimated cost savings; it is arbitrary not support an extension of the rule are discussed in the Analysis of the for the agency to not use any monetary compliance date. They state that the Economic Impact of the Proposed 2018 value for fluorinated gases; and the EPA 2016 Rule has been in effect since Revisions to the National Recycling and has previously found that HFCs January 1, 2017, and that responsible Emission Reduction Program in the endanger public health and welfare, so regulated entities have planned for, docket. For a complete description of the agency cannot ignore GHG invested in, and implemented changes the methodology used in the EPA’s emissions which may result. necessary to comply with the applicable analysis, see Section VI of the 2016 Rule Commenters also state that the EPA did compliance deadlines, including (81 FR 82344) and the technical support not consider the effect that the proposed January 1, 2019. Commenters state that document for the 2016 Rule which is rule would have on operating costs of the EPA has failed to provide any lawful also available in the docket for this leaking systems, the shortened lifespans basis for its proposal to delay the action. While the EPA is providing this and increased equipment failures of compliance date for the 2016 Rule. information to help the public systems allowed to operate with leaks, The EPA considered the comments understand the implications of this costs to companies that have created received and is not finalizing, in this action compared to those considered in innovative products to facilitate rulemaking or separately, an extension the economic analysis provided for the compliance, and decreased yields of to the January 1, 2019 compliance date 2016 Rule, this action is not based on products generated through IPR for the application of the updated leak consideration of this information. processes. Some commenters also state repair provisions to non-exempt Rather, this action is based on changes that rescinding the leak detection and substitute refrigerants. Even though in the agency’s legal interpretation of repair program would result in higher some commenters thought an extension the scope of its statutory authority, as costs for consumers as well as lost jobs would reduce compliance costs, described in earlier sections of this in the air conditioning and refrigeration commenters also said that they were document. industry. Others state that compliance taking steps to comply and did not The EPA received several comments costs will increase as companies will suggest that they would be unable to do on the economic analysis included in need to ensure compliance with two so by January 1, 2019. With no the proposal. One commenter states that different regulatory frameworks. information in the record to contradict the EPA has the authority to take costs The EPA disagrees with the comments the EPA’s earlier findings that two years into consideration in finalizing the suggesting that it has ignored the provided sufficient time to prepare for proposed rule even where the statute is increased GHG emissions, as it has the January 1, 2019 compliance date, silent, as confirmed by recent Supreme quantified the expected increase in this final rule rescinds the leak repair Court decisions. That commenter, and those emissions and reflected them in

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its analysis. Today’s action is not based One commenter states that the agency the various provisions of the 2016 Rule. on a cost-benefit analysis of retaining or failed to quantify the extra ODS This includes costs associated with rescinding various provisions or on any emissions that would result from training staff, updating reporting and other consideration of the costs and unraveling the uniform regulatory recordkeeping software, revising and benefits of various policy options, but framework for substitute refrigerants. republishing testing materials, and rather is focused solely on whether the Another commenter notes that the identifying affected appliances and agency had the statutory authority to EPA’s estimated forgone GHG emissions individuals responsible to ensure extend elements of the refrigerant reductions do not consider appliances’ compliance. management program to non-exempt end-of-life emissions. The EPA responds The EPA responds that the substitute refrigerants in the 2016 Rule. that, aside from the leak repair consideration of costs, including If the agency does not have legal provisions, the EPA is retaining the reliance interests, is not relevant to this authority to impose a requirement, it extension of all the subpart F action because the rescission here is cannot do so, even if that action would requirements to non-exempt substitute based on the agency’s lack of legal be environmentally or economically refrigerants, including the service authority for the 2016 Rule’s extension beneficial. As noted above, the technical practices, which require specific of the leak repair provisions, not on a support documents in the docket are evacuation levels before disposing of an cost/benefit analysis or policy provided to inform the public about the appliance or opening it for service, use considerations. As noted above, if the implications of this action relative to of certified recovery equipment, and the agency does not have legal authority to those described in the economic technician certification requirement. In impose a requirement, it cannot do so, analysis provided for the 2016 Rule. The addition, the venting prohibition even if retaining that requirement would EPA did not monetize the GHG effects continues to apply to any knowing be economically beneficial to some in the economic analysis for the 2016 release, venting, or disposal of ODS or entities. However, the EPA notes that Rule, nor did it quantify the other types non-exempt substitute refrigerant by any this action does not rescind the of indirect costs raised in the comments. person maintaining, servicing, repairing, extension of most of the provisions that The EPA observes that the 2016 or disposing of an appliance. As such, the commenters mention as a concern, Technical Support Document for the the EPA believes that end-of-life including the leak repair provisions for 2016 Rule notes that the final rule, ‘‘may emissions of both ODS and non-exempt appliances containing ODS, and result in other economic health and substitute refrigerant will not be affected therefore those investments will not be environmental benefits that are not by this final rule and were properly not stranded as a result of this action. The quantified or monetized in this included in the agency’s analysis. EPA is rescinding the 2016 Rule’s conservative analysis.’’ 20 EPA is Similarly, the EPA properly did not extension of the leak repair provisions rescinding the 2016 Rule’s extension of include any ODS emissions that would as they apply to equipment containing the leak repair requirements to result from rescinding the non-leak only non-exempt substitute refrigerants, equipment containing only non-exempt repair subpart F provisions in its but it is retaining the extension of the substitute refrigerants, therefore the analysis for the final rule, as it is not other subpart F requirements, such as unquantified benefits related to the rescinding the extension of those those pertaining to reclamation. This extension of such requirements will no provisions. rule does not impose any new reporting longer be attributable to the EPA’s Several commenters state that the or recordkeeping obligations. refrigerant management program. compliance costs of the 2016 Rule were One commenter states that the EPA Consistent with the agency’s overall too great and presented an unnecessary failed to distinguish between private approach taken in the 2016 Rule, the burden. One commenter states that the and social benefits, and that some costs EPA is not monetizing the GHG effects $24 million in annual savings likely of this action should not be counted if of this action. Similarly, the EPA is not underestimates the costs of the 2016 the regulated entity had the same or quantifying other indirect costs or Rule. One commenter states that the similar options available to identify and distributional effects raised by EPA has not fully considered the repair refrigerant leaks prior to the commenters. While such analyses are impacts of the 2016 Rule on companies, rulemaking. This comment referred not relevant to the basis for this action, institutions like hospitals and schools, specifically to the estimated $15 million for informational purposes we observe and homeowners. With the transition to in refrigerant purchases that will be that estimating distribution effects such HFCs and HFOs, these entities have made as a result of this action by owners as job loss is very difficult to made costly investments in systems, but and operators of equipment with non- exempt substitutes. quantitatively assess: Regulatory found higher repair costs. Likewise, this As explained above, consideration of employment impacts can vary across commenter states that the EPA did not the costs and benefits of this action is occupations, regions, and industries; by consider the costs to install new IPR not part of the rationale for this action labor demand and supply elasticities; using non-ODS refrigerants. and does not inform the EPA’s decision The EPA responds that the costs of and in response to other labor market on this rule. Rather, this action is based the 2016 Rule are outside the scope of conditions. Isolating such impacts is a on the agency’s determination that the this action, which is only to rescind the challenge, as they are difficult to 2016 Rule’s extension of the leak repair 2016 Rule’s extension of requirements disentangle from employment impacts provisions to non-exempt substitute to non-exempt substitute refrigerants caused by a wide variety of ongoing, refrigerants exceeded the agency’s 21 that exceeded the agency’s statutory concurrent economic changes. statutory authority. The EPA authority. additionally notes that while it is true 20 Technical Support Document, Analysis of the The EPA received many comments that the costs of purchasing additional Economic Impacts and Benefits of the Final from the refrigeration and air refrigerant will fall on private entities, it Revisions to the National Recycling and Emission conditioning industry that they have Reduction Program, September 2, 2016, pgs. 60–63. is those same private entities that will spent time and money to comply with 21 For a more detailed discussion, see, e.g., secure a reduction in burden from the Economic Analysis for Proposed Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Gas Sector: Emission Standards for New, rescission of the leak repair Under TSCA section 6(h), June 2019; Regulatory Reconstructed, and Modified Sources Review; EPA– requirements of the 2016 Rule as they Impact Analysis for the Proposed Oil and Natural 452/R–19–001, August 2019. apply to equipment containing only

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non-exempt substitute refrigerants. To Information Collection Request (ICR) D. Regulatory Flexibility Act (RFA) present one of these effects without the document that the EPA prepared has I certify that this action will not have other would fail to recognize the fact been assigned EPA ICR number 1626.17; a significant economic impact on a that the two effects are inextricably Office of Management and Budget substantial number of small entities related. Further, it is standard practice (OMB) Control Number: 2060–0256. under the RFA. In making this for the EPA, consistent with the You can find a copy of the ICR and determination, the impact of concern is agency’s Guidelines for Preparing supporting statement in the docket for 22 any significant adverse economic Economic Analyses, to consider this rule, and it is briefly summarized impact on small entities. An agency may increased direct outlays of money by here. The information collection certify that a rule will not have a regulated entities due to an action requirements are not enforceable until significant economic impact on a relative to a baseline without that action OMB approves them. substantial number of small entities if as costs of the action. Any entity that Through this rule, EPA is revising the the rule relieves regulatory burden, has did not repair a leaking appliance that leak repair provisions in § 82.157 so no net burden or otherwise has a they would have been required to repair they apply only to equipment using positive economic effect on the small before today’s action would need to ODS refrigerants or a blend containing entities subject to the rule. This rule allocate some part of its resources to ODS refrigerant. does not impose any new regulatory buying replacement refrigerant that Respondents/affected entities: This requirements. It is deregulatory in that otherwise could have been used for rule removes reporting and it removes required leak repair and capital investment, increasing recordkeeping requirements for owners maintenance practices and associated production, or profit. Under the and operators of appliances containing recordkeeping for appliances that do not agency’s Guidelines, it is appropriate to 50 or more pounds of a non-exempt contain any ODS refrigerant. We have consider the replacement refrigerant substitute refrigerant and technicians therefore concluded that this action will costs as opportunity costs when servicing such appliances. Entities relieve regulatory burden for directly preparing an economic analysis. required to comply with reporting and regulated small entities. The agency agrees that the nature of recordkeeping requirements include private costs in this case merits a technicians; technician certification E. Unfunded Mandates Reform Act separate accounting in a discussion of programs; refrigerant wholesalers; This action does not contain any the total benefits and costs of a rule. We refrigerant reclaimers; refrigeration and unfunded mandate as described in have enumerated the costs of air-conditioning equipment owners and/ UMRA, 2 U.S.C. 1531–1538, and does purchasing additional refrigerant or operators; and other establishments not significantly or uniquely affect small separate from the deregulatory benefits. that perform refrigerant removal, governments. The action imposes no VI. Statutory and Executive Order service, or disposal. enforceable duty on any state, local or Reviews Respondent’s obligation to respond: tribal governments or the private sector. Mandatory (40 CFR part 82, subpart F). A. Executive Order 12866: Regulatory Estimated number of respondents: F. Executive Order 13132: Federalism Planning and Review and Executive This rule reduces the estimated number This action does not have federalism Order 13563: Improving Regulation and of respondents from 861,374 under the implications. It will not have substantial Regulatory Review 2016 Rule to 573,731. direct effects on the states, on the This action is a significant regulatory Frequency of response: The frequency relationship between the national action that was submitted to the Office of responses vary from once a year to government and the states, or on the of Management and Budget (OMB) for daily. Public reporting burden for this distribution of power and review. Any changes made in response collection of information is estimated to responsibilities among the various to OMB recommendations have been vary from one minute to 9.4 hours per levels of government. documented in the docket. The EPA response, including time for reviewing prepared an economic analysis of the instructions and gathering, maintaining, G. Executive Order 13175: Consultation costs and benefits associated with this and submitting information. and Coordination With Indian Tribal action which is available in Docket Total estimated burden: This rule Governments Number EPA–HQ–OAR–2017–0629. reduces the estimated annual This action does not have tribal recordkeeping and reporting burden implications as specified in Executive B. Executive Order 13771: Reducing from 580,473 hours under the 2016 Rule Order 13175. It will not have substantial Regulations and Controlling Regulatory to 434,359 hours. Burden is defined at direct effects on tribal governments, on Costs 5 CFR 1320.3(b). the relationship between the federal This action is considered an Total estimated cost: This rule government and Indian tribes, or on the Executive Order 13771 deregulatory reduces the estimated annual distribution of power and action. Details on the estimated cost recordkeeping and reporting cost from responsibilities between the federal savings of this final rule can be found $34,627,298 under the 2016 Rule to government and Indian tribes, as in the EPA’s analysis of the potential $24,625,892. There are no estimated specified in Executive Order 13175. costs and benefits associated with this annualized capital or operation and Thus, Executive Order 13175 does not action. maintenance costs associated with the apply to this action. C. Paperwork Reduction Act (PRA) reporting or recordkeeping requirements. H. Executive Order 13045: Protection of The information collection activities An agency may not conduct or Children From Environmental Health in this rule have been submitted for sponsor, and a person is not required to Risks and Safety Risks approval to OMB under the PRA. The respond to, a collection of information This action is not subject to Executive unless it displays a currently valid OMB Order 13045 because it is not 22 The Guidelines can be found at https:// control number. The OMB control economically significant as defined in www.epa.gov/environmental-economics/guidelines- preparing-economic-analyses. See Chapter 8 titled numbers for the EPA’s regulations in 40 Executive Order 12866. The EPA has ‘‘Analyzing Costs.’’ CFR are listed in 40 CFR part 9. not conducted a separate analysis of

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risks to infants and children associated machines that meet the requirements in DATES: The closure is effective at 12:01 with this rule. § 82.158 are used whenever refrigerant a.m., local time, on August 2, 2020, is removed from an appliance, the until 12:01 a.m., local time, on January I. Executive Order 13211: Actions That technician certification provisions in 1, 2021. Significantly Affect Energy Supply, § 82.161 are observed, and the Distribution, or Use FOR FURTHER INFORMATION CONTACT: reclamation requirements in § 82.164 Daniel Luers, NMFS Southeast Regional This action is not a ‘‘significant are observed; or Office, telephone: 727–551–5719, email: energy action’’ because it is not likely to * * * * * [email protected]. have a significant adverse effect on the ■ 3. Amend § 82.157 by revising SUPPLEMENTARY INFORMATION: The Gulf supply, distribution, or use of energy. paragraph (a) to read as follows: reef fish fishery, which includes red J. National Technology Transfer and snapper, is managed under the Fishery Advancement Act (NTTAA) § 82.157 Appliance maintenance and leak Management Plan for the Reef Fish repair. Resources of the Gulf of Mexico (FMP). This rulemaking does not involve (a) Applicability. This section applies technical standards. The FMP was prepared by the Gulf of as of January 1, 2019. As of April 10, Mexico Fishery Management Council K. Executive Order 12898: Federal 2020, this section applies only to and is implemented by NMFS under the Actions To Address Environmental appliances with a full charge of 50 or authority of the Magnuson-Stevens Justice in Minority Populations and more pounds of any class I or class II Fishery Conservation and Management Low-Income Populations refrigerant or blend containing a class I Act (Magnuson-Stevens Act) by or class II refrigerant. Notwithstanding The EPA believes that it is not feasible regulations at 50 CFR part 622. the use of the term refrigerant in this The final rule implementing to quantify any disproportionately high section, the requirements of this section and adverse effects from this action on Amendment 40 to the FMP established do not apply to appliances containing two components within the recreational minority populations, low-income solely substitute refrigerants. Unless populations and/or indigenous peoples, sector fishing for Gulf red snapper: The otherwise specified, the requirements of private angling component, and the as specified in Executive Order 12898 this section apply to the owner or (59 FR 7629, February 16, 1994). Federal for-hire component (80 FR operator of the appliance. 22422, April 22, 2015). Amendment 40 L. Congressional Review Act (CRA) * * * * * also allocated the red snapper This action is subject to the CRA, and [FR Doc. 2020–04773 Filed 3–10–20; 8:45 am] recreational ACL (recreational quota) the EPA will submit a rule report to BILLING CODE 6560–50–P between the components and each House of the Congress and to the established separate seasonal closures Comptroller General of the United for the two components. On February 6, States. This action is not a ‘‘major rule’’ DEPARTMENT OF COMMERCE 2020, Amendments 50 A–F to the FMP as defined by 5 U.S.C. 804(2). were implemented, which delegated National Oceanic and Atmospheric authority to the Gulf states (Louisiana, List of Subjects in 40 CFR Part 82 Administration Mississippi, Alabama, Florida, and Environmental protection, Air Texas) to establish specific management pollution control, Chemicals, Reporting 50 CFR Part 622 measures for the harvest of red snapper and recordkeeping requirements. [Docket No. 140818679–5356–02] in Federal water of the Gulf by the Dated: February 26, 2020. private angling component of the RTID 0648–XS026 recreational sector (85 FR 6819, Andrew R. Wheeler, February 6, 2020). These amendments Fisheries of the Caribbean, Gulf of Administrator. allocate a portion of the private angling Mexico, and South Atlantic; Reef Fish For the reasons set forth in the quota to each state, and each state is Fishery of the Gulf of Mexico; 2020 preamble, the Environmental Protection required to constrain landings to its Red Snapper Recreational For-Hire Agency amends 40 CFR part 82 as allocation. Therefore, NMFS will no Fishing Season in the Gulf of Mexico follows: longer announce a season for the private AGENCY: National Marine Fisheries angling component of the recreational PART 82—PROTECTION OF Service (NMFS), National Oceanic and sector. Additionally, on February 20, STRATOSPHERIC OZONE Atmospheric Administration (NOAA), 2020, NMFS published a final rule Commerce. implementing a framework action that ■ 1. The authority citation for part 82 ACTION: Temporary rule; closure. changed the Federal for-hire continues to read as follows: component’s red snapper annual catch Authority: 42 U.S.C. 7414, 7601, 7671– SUMMARY: NMFS announces the 2020 target (ACT) for 2020 and beyond, from 7671q. recreational fishing season for the 20 percent below the for-hire ■ 2. Amend § 82.154 by revising Federal charter vessel/headboat (for- component quota to 9 percent below the paragraph (a)(2)(i) to read as follows: hire) component for red snapper in the for-hire component quota (85 FR 9684). exclusive economic zone (EEZ) of the This rule will be effective on March 23, § 82.154 Prohibitions. Gulf of Mexico (Gulf) through this 2020. (a) * * * temporary rule. The red snapper The red snapper for-hire component (2) * * * recreational for-hire component in the seasonal closure is projected from the (i) The applicable practices in Gulf EEZ opens on June 1, 2020, and component ACT. Projecting the for-hire §§ 82.155 and 82.156 are observed, the will close at 12:01 a.m., local time, on component’s seasonal closure using the applicable practices in § 82.157 are August 2, 2020. This closure is ACT reduces the likelihood of the observed for appliances that contain any necessary to prevent the Federal for-hire harvest exceeding the component quota class I or class II refrigerant or blend component from exceeding its quota and the total recreational quota. containing a class I or class II and to prevent overfishing of the Gulf All weights described in this refrigerant, recovery and/or recycling red snapper resource. temporary rule are in round weight.

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