regulations to reduce the use and emissions of class I and class II
refrigerants but mentions substitutes only twice: That their use be
promoted and the general requirement that their knowing venting is
prohibited.
    On the contrary, other comments agreed that EPA had authority to
extend these regulations to substitutes. One such comment stated: ``We
believe that both the language of section 608 and the Agency's
discretionary authority allow the extension of section 608's
requirements to substitutes for ODS in the regulations.'' \14\ These
commenters noted that extending these regulations to substitutes allows
for a coherent and robust regime to address venting across the full
suite of appliances and applications, and that applying the regulatory
regime to substitute refrigerants would more fully allow for and
incentivize the recovery and reclamation of both ODS and substitutes.
These comments concluded that because ODS and substitutes can be used
interchangeably, the regulation of substitutes reinforces the
regulation of ODS and more reliably reduces ODS emissions. Another
commenter who generally believes the Agency does not have authority to
apply the leak repair provisions to appliances using substitute
refrigerants does concede that there may be provisions of subpart F
which are directly related to emissions occurring in the course of
maintenance, service, repair or disposal activities and might be
reasonably extended to substitute refrigerants.
---------------------------------------------------------------------------

    \14\ Comment submitted by Natural Resources Defense Council and
Institute for Governance and Sustainable Development, David Doniger,
et. al., pg. 3. EPA-HQ-OAR-2015-0453-0121.
---------------------------------------------------------------------------

    EPA disagrees that its regulatory authority under CAA section 608
extends only to class I and class II (ODS) substances and not to
substitutes. EPA also disagrees with comments contending that, as a
factual matter, extension of the refrigerant management regulations to
substitutes would not reduce emissions of ODS and maximize the
recapturing and recycling of ODS. Section 608 expressly addresses
substitute refrigerants in the venting prohibition in section
608(c)(2). As explained previously in this notice, EPA's authority for
extending the refrigerant management regulations to substitute
refrigerants is based primarily on section 608(c)(2) (via
interpretation, explanation, and enforcement of the venting prohibition
for substitutes) and secondarily on section 608(a) (via the
corresponding reductions in ODS emissions and increases in ODS
recapture and recycling that are expected to result from requiring
consistent practices for ODS and substitute refrigerants), with
additional support from CAA sections 301 and 114.
    More specifically with respect to section 608(a), that section
states that the regulations under that section shall include
requirements that reduce the use and emission of ODS to the lowest
achievable level and that maximize their recapture and recycling. EPA's
interpretation that section 608(a) supports the extension of the
refrigerant management regulations to substitutes is based on reducing
emissions of ODS and maximizing recapturing and recycling of ODS. This
is because requiring practices that are consistent for both ODS and for
substitutes reduces the likelihood that a person maintaining,
servicing, repairing, or disposing of an appliance that uses ODS as a
refrigerant mistakenly believes that it contains a substitute
refrigerant and fails to apply the proper procedures for ODS, leading
to increased ODS emissions or failure to recover or reclaim ODS. It is
also because in the course of servicing, repairing, or maintaining
appliances there is a potential for mixing ODS and substitute
refrigerants, which may lead to venting or release of the mixture due
to the difficulty of reclamation. EPA has explained that the venting
prohibition applies to all refrigerants consisting in whole or in part
of an ODS, such as a blend with an HFC component. (See 69 FR 11949).
Accordingly, the commenters' statements that section 608(a) only
applies to class I and class II substances fail to recognize that
regulation of substitutes can help effectuate the statutory purposes
mentioned in section 608(a). EPA is relying in part on section 608(a)
for the extension of regulatory requirements to substitutes because it
interprets this provision to support regulation of substitutes when
such regulations can help achieve the purposes listed in section
608(a). The extension of regulatory requirements to substitutes in this
action is supported by section 608(a) because that extension of
requirements to substitutes is expected to reduce ODS emissions and
further maximize the recovery and reclamation of ODS. After
consideration of all the comments, EPA concludes that it has authority
to extend the refrigerant management regulations to substitutes, and
that section 608(a) is a relevant source of authority because applying
a consistent and coherent regulatory regime to both ODS and substitute
refrigerants improves the application of the requirements to ODS,
promoting the recovery and reclamation of ODS and reducing ODS
emissions. Such ODS-focused goals are well within EPA's authority under
CAA section 608(a).\15\
---------------------------------------------------------------------------

    \15\ Although these comments do not relate to EPA's authority to
regulate ODS, we do note for completeness' sake that CAA section
608(a) also provides authority for the portions of this rulemaking
that revise the refrigerant management requirements as those apply
directly to ODS.
---------------------------------------------------------------------------

    Commenters also disagreed with EPA's statement that there is
ambiguity in the CAA regarding the Agency's authority to create a
comprehensive regulatory program akin to that

applicable to class I and class II ODS. These commenters expressed that
Congress explicitly addressed substitutes in section 608(c)(2) and did
not in section 608(a) and that Congress was fully aware and capable of
granting EPA authority to regulate substitutes under section 608(a) and
it chose not to do so. They further commented that Congress knew which
provisions of Title VI it wished to extend to substitutes and which it
did not, and pointed to sections 609, 612, and 615 as allowing EPA to
regulate substitutes. These comments concluded that Congress
demonstrated that it knew how to include substitutes in refrigerant
management regulations if it wanted to.
    EPA recognizes that Congress expressly mentioned substitutes in
certain sections of Title VI of the CAA, such as section 608(c)(2). In
EPA's interpretation of section 608, the fact that Congress expressly
applied the venting prohibition to substitutes in section 608(c)(2)
supports this action because this action clarifies how EPA interprets
that venting prohibition and explains what actions must be taken during
the maintenance, servicing, repair, or disposal of appliances and IPR
to avoid violating the venting prohibition. The inclusion of
substitutes in section 608(c)(2) also indicates that Congress
contemplated that regulation of substitutes would play a role in
implementing section 608. The ambiguity in section 608 is that Congress
created an explicit prohibition on venting substitute refrigerants in
the course of maintaining, servicing, repairing, or disposing of
appliances or IPR, and also provided an exception to that prohibition
for ``de minimis releases associated with good faith attempts to
recapture and recycle or safely dispose'' of such substances. CAA
section 608(c)(1); see also CAA section 608(c)(2) (applying paragraph
(c)(1) to the venting, release, or disposal of substitute
refrigerants). Congress, however, did not define what releases would be
considered ``de minimis'' nor which activities would be considered
``good faith attempts to recapture and recycle or safely dispose'' of
such substances. Where Congress has not directly spoken to an issue or
has left ambiguity in the statute, that silence or ambiguity creates an
assumption that ``Congress implicitly delegated to the agency the power
to make policy choices that represent a reasonable accommodation of
conflicting policies that are committed to the agency's care by the
statute.'' National Ass'n of Mfrs. v. United States DOI, 134 F.3d 1095,
1106 (D.C. Cir. 1998). As the U.S. Supreme Court has explained, the
``power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy
and the making of rules to fill any gap left, implicitly or explicitly,
by Congress.'' Chevron, 467 U.S. at 843-44. The Court later explained,
``[w]e accord deference to agencies under Chevron, . . . because of a
presumption that Congress, when it left ambiguity in a statute meant
for implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows.'' Smiley v. Citibank (s.D.), N.A, 517 U.S. 735, 740-
741 (1996). Accordingly, Congress's silence with regard to the venting
prohibition and the exception for certain releases leaves a gap for the
Agency to fill, as it is doing in this rulemaking.
    In addition to the statutory interpretation and the principle of
Chevron deference discussed above, the legislative history further
supports the notion that Congress anticipated and intended for the
Agency to establish regulations that would further interpret, explain,
and enforce the exception to the venting prohibition. A Senate Report
accompanying a version of the Senate bill for the Clean Air Act
Amendments of 1990, which enacted Title VI, addressed the venting
prohibition and described that it would include ``[e]xceptions . . .
for de minimis releases associated with good faith attempts to
recapture, recycle and safely dispose of'' the substances used as
refrigerants in household appliances, commercial refrigeration and air
conditioning units. Report of the Committee on Environment and Public
Works United States Senate, Report Accompanying S. 1630 (S. Rept. 101-
228) (December 20, 1989) at 396 (reprinted in 4 A Legislative History
of the Clean Air Act Amendments of 1990, at 8736 (1993)). This report
further stated that the standards and requirements that EPA was
required to promulgate ``should include provisions to foster
implementation of this prohibition, including guidance on what
constitutes `de minimis' and `good faith'.'' Id. Thus, EPA reasonably
interprets the ambiguity in section 608(c) to mean that in creating the
exception to the venting prohibition, Congress intended for the Agency
to provide additional specificity regarding how a regulated entity
would qualify for this exception. This rulemaking provides such
additional specificity and further articulates the policy of how this
exception is interpreted, explained, and enforced.
    While EPA acknowledges that section 608(a) does not explicitly
mention substitutes, we disagree with the conclusion that the comment
draws from that. The fact that Congress required EPA to address ODS in
a certain manner under section 608(a) is not the same as prohibiting
EPA from addressing other refrigerants in the same manner. EPA has
explained in the preceding response to comments how it interprets
section 608(a) to support this rulemaking.
    Some commenters contend that Congress specifically listed class I
and class II substances for coverage under the regulations and under
the principle of expressio unius est exclusio alterius, regulations
cannot be applied to refrigerants that are neither class I or class II
substances. This rule of statutory interpretation, which has limited
force in an administrative law setting, means that the inclusion of one
thing implies the exclusion of another thing. However, the fact that
Congress mandated certain measures for ODS but was silent regarding
appropriate measures for substitutes does not mean that Congress
prohibited EPA from adopting similar measures for substitutes. See
Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (``The
contrast between Congress's mandate in one context with its silence in
another suggests not a prohibition but simply a decision not to mandate
any solution in the second context, i.e., to leave the question to
agency discretion.'')
    Commenters stated that section 608(c) is self-implementing and no
promulgation of regulations by EPA is required or contemplated to
implement such prohibition. In contrast, 608(a) and (b) require EPA to
promulgate regulations to establish ``standards and requirements.''
These standards and requirements are different in kind and broader than
the 608(c) statutory prohibition. EPA cannot merge the distinct
requirements of 608(a) and (b) with the statutory prohibition of
608(c). Another commenter stated that in trying to apply section 608(b)
to any substitute substance, EPA is inferring authority that is not
there.
    EPA agrees that the prohibition under 608(c) as it applies to the
knowing venting or releasing of ODS and substitutes is itself self-
implementing. However, that fact does not preclude EPA from
establishing regulations to include the prohibition in the overall
context of the regulatory scheme and to promulgate rules to further
interpret, explain, and enforce it, including by

providing certainty to enhance compliance. Indeed, EPA's prior
regulations at 40 CFR 82.154 included the venting prohibition. More
specifically, these regulations provided that ``no person maintaining,
servicing, repairing, or disposing of appliances may knowingly vent or
otherwise release into the environment any refrigerant or substitute
from such appliances'' and then provided for exceptions from this
prohibition for specified substitutes in specified end-uses. These
exceptions implemented the discretion Congress left EPA under 608(c)(2)
to exempt certain releases from the venting prohibition, if the
Administrator has determined that ``venting, releasing, or disposing of
such substance does not pose a threat to the environment.'' CAA section
608(c)(2). Contrary to the comment, the inclusion of this discretion in
section 608(c)(2) indicates that Congress intended for the EPA to have
authority to implement aspects of the prohibition and in fact left gaps
in this section that it expected EPA would fill as appropriate.
    Similarly, as discussed in the preceding response, the legislative
history indicates that in establishing the venting prohibition,
Congress expected EPA to promulgate regulatory ``provisions to foster
implementation of this prohibition, including guidance on what
constitutes `de minimis' and `good faith'.'' Report of the Committee on
Environment and Public Works United States Senate, Report Accompanying
S. 1630 (S. Rept. 101-228) (December 20, 1989) at 396 (reprinted in 4 A
Legislative History of the Clean Air Act Amendments of 1990, at 8736
(1993)). Consistent with that Congressional intent, the prior
regulations at 40 CFR 82.154 included provisions clarifying that
``[ODS] releases shall be considered de minimis only if they occur
when'' certain regulatory requirements are observed. 40 CFR
82.154(a)(2). However, those regulations did not provide the same
clarity regarding releases of non-exempt substitute refrigerants or
what practices would be considered to fall within the ambit of ``good
faith attempts to recycle or recover'' non-exempt substitute
refrigerants. 40 CFR 82.154(a)(2). Because Congress provided this
exception to the venting prohibition for substitutes under section
608(c)(2) but did not specify what practices or actions should be taken
to qualify for this exception, it is reasonable to interpret this
provision as indicating that Congress contemplated that EPA would
resolve this ambiguity.
    While Congress did not establish specific rulemaking authority
under section 608(c)(2), Congress did provide a general grant of
authority in CAA section 301(a)(1) to ``prescribe such regulations as
are necessary to carry out [the Administrator's] functions under'' the
CAA. This rulemaking authority supplements EPA's authority under
section 608 by authorizing EPA to promulgate regulations necessary to
carry out its functions under section 608, including regulations
necessary to interpret the venting prohibition and exceptions to it.
    EPA disagrees with the commenter that it is impermissibly merging
the distinct requirements of CAA sections 608(a) and (b) with section
608(c). While EPA's regulations under section 608(b) are simply one
part of the regulations required under section 608(a), EPA is not
relying on section 608(b) to justify its extension of the section 608
regulations to substitutes in this rulemaking. The role of EPA's
section 608(a) authority in this rulemaking has been discussed above,
in a prior response to comment. Moreover, as noted above, the fact that
Congress required EPA to address ODS refrigerants in specific way under
section 608(a), or section 608(b) for that matter, is not the same as
precluding EPA from addressing other refrigerants in a similar fashion.
Likewise, where EPA has authority to establish regulations for non-
exempt substitute refrigerants, the fact that it has exercised its
authority to establish similar regulations for other refrigerants does
not prevent it from exercising its authority to regulate non-exempt
substitute refrigerants in a similar manner.
    One commenter stated that using section 608(c) to establish the
same requirements as authorized under section 608(a) renders section
608(a) null and stated that statutory language should not be read in a
manner that renders other provisions of the statute inconsistent,
meaningless or superfluous.
    EPA disagrees with this comment. Unlike section 608(c), section
608(a) is not limited to refrigerants. EPA has applied its authority
under section 608(a) to establish or consider regulations for ODS in
non-refrigerant applications. As an example, in 1998, EPA issued a rule
on halon management under the authority of section 608(a)(2) (63 FR
11084, March 5, 1998). In that action, EPA noted that section 608(a)(2)
``directs EPA to establish standards and requirements regarding the use
and disposal of class I and II substances other than refrigerants.'' 63
FR 11085. Similarly, EPA considered whether to establish a requirement
to use gas impermeable tarps to reduce emissions of methyl bromide
under section 608(a)(2), ultimately determining not to do so for
technological and economic reasons. 63 FR 6008 (February 5, 1998). In
that action, EPA noted: ``[s]ection 608(a)(1) of the Act provides for a
national recycling and emission reduction program with respect to the
use and disposal of Class I substances used as refrigerants. Section
608(a)(2) provides for such a program with respect to Class I and Class
II substances not covered by section 608(a)(1).'' 63 FR 6008.
Accordingly, this interpretation of section 608(c)(2) to allow EPA to
establish requirements for non-exempt substitute refrigerants similar
to those established under section 608(a) for ODS refrigerants does not
render section 608(a) null or superfluous. Although EPA interprets its
substantive authority under both sections 608(a) and 608(c) to support
application of the refrigerant management requirements to both ODS and
non-exempt substitute refrigerants, that is different from asserting
that its section 608(c) authority would extend to any requirement that
could be imposed under section 608(a). EPA was required to establish
certain regulations for ODS refrigerants under section 608(a) and then
decided to use those provisions to interpret and explain the venting
prohibition for ODS under section 608(c). The fact that EPA is now
electing to use the same requirements under section 608(c) for
substitutes does not render 608(a) a nullity. EPA could have
established different requirements to interpret and explain the venting
prohibition, but for the reasons discussed above, decided to make the
requirements consistent for both ODS and substitutes.
2. Comment: Congress Did Not Regulate Substitutes Because It Wanted To
Create Incentives To Use Substitute Refrigerants
    One commenter asserted that applying detailed refrigerant
management requirements to substitutes discourages the development of
substitutes as it eliminates the incentive to operate with fewer
regulatory requirements. Another commenter stated that the current
regulations provide an opt-out incentive to owners that voluntarily
retrofit to a non-ozone depleting substitute and suggested that EPA
should seek to revise the proposed rule so that it continues to provide
similar incentives.
    EPA disagrees that applying the refrigerant management requirements
to non-exempt substitute refrigerants will discourage the development
of substitutes. At this point in time, there are other incentives to
either retrofit or

replace existing equipment that relies on ODS. Most ODS have been
completely phased out and the HCFC phaseout is well underway.
Allowances for domestic consumption of the most common HCFC
refrigerant, HCFC-22, are set at 5.6 percent of baseline for 2016 and
will decline to zero in 2020 (40 CFR 82.16, 82.15(e)). In addition, use
restrictions issued pursuant to section 605(a) prohibit use of newly
produced HCFC-22 in equipment manufactured on or after January 1, 2010
(40 CFR 82.15(g)(2)). The section 605(a) use restrictions further
prohibit use of newly produced HCFC-123 in equipment manufactured on or
after January 1, 2020 (40 CFR 82.15(g)(4)). While used HCFCs are not
subject to these restrictions, the HCFC phaseout and the restrictions
on use of newly produced HCFCs provide clear market signals regarding
future availability of HCFC refrigerants.
    In addition, while some provisions of the statute indicate
Congressional intent to encourage companies to use safer alternatives,
other provisions indicate that Congress was also concerned about the
potential impacts of unregulated releases of these substitute
refrigerants. Section 608(c)(2) is in the latter category, as it
extends the venting prohibition to substitute refrigerants, unless EPA
determines that such releases do not pose a threat to the environment.
Accordingly, the application of these regulatory requirements to non-
exempt substitute refrigerants provides clarity and certainty to
owners, operators, and people servicing, maintaining, repairing, or
disposing of air conditioning and refrigeration equipment of how they
can avoid violating the venting prohibition. Such clarity and certainty
is consistent with EPA's efforts through other regulatory programs to
facilitate and encourage the use of substitute refrigerants.
    Other commenters stated that Congress did not extend the
refrigerant management requirements to substitutes, likely because it
wanted to create incentives for companies to switch to safer
alternatives.
    EPA responds that Congress did extend the venting prohibition to
substitute refrigerants and left to EPA's discretion how to interpret
and enforce that prohibition. While Congress did not require EPA to
interpret and enforce the venting prohibition by regulating substitute
refrigerants in the same manner as ODS, neither did it prevent EPA from
doing so.
    Commenters also stated that 608(a)(3) encourages EPA to use the
regulations under that provision to promote the use of safe
alternatives. EPA responds that while section 608(a)(3) provides that
the regulations that are required under section 608(a) ``may include
requirements . . . to promote the use of safe alternatives pursuant to
section [612],'' whether to include such provisions is discretionary,
not mandatory. While Congress left such regulations to EPA's
discretion, Congress directly applied the venting prohibition to
substitute refrigerants under section 608. Moreover, the legislative
history for section 608 recognizes the distinctions between sections
612 and 608, stating: ``The fact that a particular substance has been
identified by the Administrator as a `safe substitute' for purposes of
section 612, does not affect the requirement for a separate
determination under [section 608]. The purposes of section 612 and of
this section are different and substances approved under section 612
will not automatically qualify for exclusion from the prohibition on
venting that is included in this section.'' Statement of Senate
Managers, S. 1630, The Clean Air Act Amendments of 1990, reprinted in 1
A Legislative History of the Clean Air Act Amendments of 1990, at 928
(1993). Accordingly, EPA does not interpret the discretion provided by
section 608(a)(3) to diminish its ability to interpret, explain, and
enforce section 608(c) as it is doing in this rule.
3. Comment: Section 608 Does Not Authorize EPA To Regulate the Normal
Operation of Refrigerant Equipment
    Commenters stated that EPA's authority under section 608 is limited
to regulating actions taken during servicing, repair, or disposal of
refrigeration equipment, or class I and II refrigerants evacuated
during such servicing and repair. These comments further stated that
EPA's authority extends only to technicians and that nothing in section
608 would enable EPA to impose liability on the equipment owner or
operator.
    With regard to the actions that are within the scope of section
608(c), as explained earlier in this notice, EPA interprets section
608(c) to convey authority to interpret, explain, and enforce the
venting prohibition for both ODS and substitute refrigerants, and that
prohibition applies to the maintenance, service, repair, or disposal of
appliances and IPR. As explained elsewhere in this rulemaking, this
action applies regulations to non-exempt substitute refrigerants that
are related to the maintenance, service, repair, or disposal of such
appliances or to providing persons engaged in such activities with
additional clarity and certainty on how to ensure that their actions
comport with the venting prohibition and the de minimis exemption to
it. For example, the technician certification provisions relate to who
can maintain, service, or repair an appliance and the evacuation and
recovery equipment provisions relate to how to maintain, service,
repair or dispose of an appliance. Furthermore, the comment omits the
concept of maintenance, which is included in section 608(c). EPA notes
that the definition of the term ``maintain'' includes ``to keep in an
existing state; preserve or retain'' and to ``keep in a condition of
good repair or efficiency.'' The American Heritage College Dictionary,
4th ed. (Houghton Mifflin, 2002), at 834; see also http://www.merriam-webster.com/dictionary/maintain (including in the definition of
maintain ``to keep in an existing state (as of repair, efficiency, or
validity): Preserve from failure or decline '')
(last accessed May 31, 2016). Thus, ``maintenance'' and ``maintaining''
include a broad range of activities involved in preserving equipment in
normal working order.
    EPA noted in a prior response that section 608(c) is limited to
refrigerants while section 608(a) is not. However, the comment is
incorrect that section 608(c) is limited to the activities of a
technician. Section 608(c)(2) refers to ``any person,'' and ``person''
is defined broadly in CAA section 302, as well as in subpart F to 40
CFR part 82. More specifically, section 302(e) defines ``person'' to
``include[ ] an individual, corporation, partnership, association,
State, municipality, political subdivision of a State, and any agency,
department, or instrumentality of the United States and any officer,
agent or employee thereof.'' Thus, the definition clearly is not
limited to technicians. Furthermore, the current statement of purpose
and scope in subpart F, Sec.  82.150, lists appliance owners and
operators as one of the persons to which the subpart applies.
    When EPA initially promulgated the subpart F regulations, it
explained that these rules applied to owners. For example, in the
preamble to the 1993 Rule, EPA explained that it had made ``additions
to the scope section to clarify that the rule covers refrigerant
reclaimers, appliance owners, and manufacturers of appliances and
recycling and recovery equipment in addition to persons servicing,
repairing, maintaining, and disposing of appliances.'' 58 FR 28707
(emphasis added); see also 58 FR 28681

(explaining that the rule required the owner of the equipment to either
authorize the repair of substantial leaks or develop the equipment
retirement/retrofit plan within 30 days of discovering leak above the
standard and that the owner has the legal obligation to ensure that
repairs are made to equipment where the leak rate exceeds the
standard).
    Some comments on the proposed rule stated that section 608(c)
cannot be used to require that an equipment owner undertake repairs.
EPA disagrees with this comment. As explained above, owners are within
the scope of ``person'' as defined in CAA section 302(e) and subpart F.
An owner's failure to undertake repairs of leaky appliances or IPR
could lead directly to a violation of the venting prohibition. As one
example, if in the course of a normal maintenance check, a technician
discovers that the appliance is releasing refrigerant above the
threshold leak rate but the owner does not authorize the repairs as
required by the rules, and instead decides to add refrigerant and
continue operating the equipment, the owner would be participating in a
knowing release.
    Many commenters also disagreed with EPA's interpretation of the
venting prohibition, as articulated in the proposed rule that ``when a
person adds refrigerant to an appliance that he or she knows is
leaking, without repairing the appliance consistent with the leak
repair requirements, he or she also violates the venting prohibition.''
One commenter stated that this could prohibit technicians from filling
any leaking appliance. Another commenter noted that that it appears to
cover failed repairs and verification tests during the repair period
allowed by Sec.  82.156(i)(9) and Sec.  82.157(e). Commenters requested
that EPA clarify that leaks that occur within an applicable repair
window or retrofit/retirement schedule, even though the facility may be
aware of the leak, do not violate the venting prohibition, where the
leak repair procedures prescribed in subpart F are followed. To clarify
EPA's statement in the proposed rule and to respond to these comments,
EPA's position is that while the addition of refrigerant to an
appliance known to be leaking above the threshold rate is a knowing
release, that release does not violate the venting prohibition so long
as the applicable practices referenced in Sec.  82.154(a)(2), as
revised, are complied with, including the leak repair requirements, as
applicable.
4. Addressing Concerns About Global Warming Is Not Lawful Under Title
VI of the CAA
    Multiple commenters stated that EPA cannot use Title VI to control
substances based on their GWPs. These commenters referred to section
602(e), which states that EPA's required publication of the GWP of a
class I or class II substance ``shall not be construed to be the basis
of any additional regulation under this chapter.'' EPA responds that
section 602(e) relates to the GWPs of ODS, and says nothing regarding
the GWPs of substitutes. In any event, EPA is not relying on section
602 as authority for the action being taken in this rulemaking. Rather,
EPA is relying on section 608 for the substantive requirements
contained in this rule. Section 608(c) prohibits the knowing venting or
release of a substitute refrigerant unless the Administrator determines
that such venting, release, or disposal does not pose a threat to the
environment. While it is true that EPA anticipates a significant GHG
emissions reduction as a result of this rule, EPA is extending the
subpart F regulations to all substitute refrigerants that are not
exempt from the venting prohibition irrespective of their GWPs. The
GWPs of the non-exempt substitutes addressed in this rulemaking range
from 4 to over 14,000.
    One commenter stated that the legislative history demonstrates that
Congress considered and rejected regulating GHGs under Title VI of the
CAA. Congress does not intend sub silento to enact statutory language
that it has earlier discarded. The commenter also noted that Congress
rejected the Senate version known as ``The Stratospheric Ozone and
Climate Protection Act.'' That version of the act sought to reduce
methane emissions in the U.S. and other countries. The removal of those
provisions signifies, in the commenter's opinion, that Congress did not
intend for Title VI to address substances that were not ozone
depleting, even if they have high GWPs.
    EPA responds that while Congress chose not to include certain
potential measures regarding regulation of GHGs unrelated to ODS,
Congress nonetheless included multiple provisions regarding ODS
substitutes. The legislative history of section 608(c) indicates that
Congress specifically recognized that substitutes could pose a threat
to the environment because they could include greenhouse gases. In
discussing the venting prohibition, as it applies to substitute
refrigerants, the statement of the Senate Managers included the
following:

    Effective 5 years after enactment, the prohibition on venting or
release shall also apply to all substances that are used as
refrigerants as substitutes for class I or class II refrigerants. By
its terms, this provision applies to substances that are not listed
as class I or class II substances. This is an important provision
because many of the substitutes being developed do not have ozone
depleting properties but they are `greenhouse gases' and have
radiative properties that are expected to exacerbate the problem of
global climate change. The prohibition shall apply to all such
substitute substances except where the Administrator determines that
the venting, release or disposal of a particular substitute
substance does not pose a threat to the environment.
    The Administrator shall consider long term threats, such as
global warming, as well as acute threats. The fact that a particular
substance has been identified by the Administrator as a `safe
substitute' for purposes of section 612 does not affect the
requirement for a separate determination under this section. The
purposes of section 612 and of this section are different and
substances approved under section 612 will not automatically qualify
for exclusion from the prohibition on venting that is included in
this section.\16\
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    \16\ Statement of Senate Managers, S. 1630, The Clean Air Act
Amendments of 1990, reprinted in 1 A Legislative History of the
Clean Air Act Amendments of 1990, at 929 (1993).

    It is therefore clear that Congress understood that substitute
refrigerants could be greenhouse gases, specifically sought to apply
the venting prohibition to such gases, and specifically contemplated
that climate risks would be considered in carrying out the venting
prohibition. The removal of a provision related to methane within Title
VI does not indicate that Congress did not intend to address greenhouse
gases in the venting prohibition.
    One commenter stated that EPA has not undertaken an endangerment
finding to support regulation of HFCs from IPR as a greenhouse gas
which can be regulated under the CAA. EPA responds that under section
608(c), the venting prohibition applies to substitutes unless EPA
exempts them. EPA is not required to take any affirmative action, let
alone an endangerment finding, for the venting prohibition to apply.
    One commenter stated that the purpose of Title VI is to implement
the Montreal Protocol, whose sole goal is to protect the stratospheric
ozone layer from ODS. EPA responds that while certain sections of Title
VI do in fact implement the Montreal Protocol, several sections of
Title VI call on EPA to take measures that are not required by the
Montreal Protocol but are complementary to the ODS phaseout. These
sections include, in addition to

section 608, sections 609 (servicing of motor vehicle air
conditioners), 610 (nonessential products), 611 (labeling), and 612
(safe alternatives policy). Section 608 clearly provides EPA authority
to regulate the venting, release, and disposal of substitute
refrigerants.
5. EPA's Proposal Would Increase Risks to Human Health and Violate
Section 612
    One commenter stated that the proposed rule would drive owners and
operators of IPR from HFCs to exempt substitutes in order to remove
themselves from the regulatory requirements of subpart F. The commenter
stated that some of these exempt substitutes are not safer for human
health. HFCs are non-ozone depleting, non-flammable, and non-toxic
whereas ammonia, chlorine, and hydrocarbons are either toxic or
flammable. By encouraging the use of these non-exempt but riskier
substitutes, the commenter states that EPA is violating section 612(a)
of the CAA.
    EPA responds that the commenter is quoting the policy statement
that appears in section 612(a). The Agency is not acting under section
612. Rather, EPA is acting under section 608. This action under section
608 is consistent with decisions made under section 612 and does not
alter those decisions. Specifically, it does not preclude use of any
substitute listed as acceptable or acceptable subject to use
restrictions under section 612(c) for the specified end-use. Under
section 612(c), EPA compares substitutes not only to ODS but also to
other available substitutes. When reviewing substitute refrigerants,
EPA considers a variety of risks, including toxicity and flammability.
In some instances, EPA lists substitutes as acceptable subject to use
conditions that mitigate such risk. EPA does not dictate that a
particular user choose a specific substitute from among those listed as
acceptable for that end-use. Whether an owner or operator of an IPR
facility chooses to transition to an exempt substitute is a decision
that must be made weighing the advantages and disadvantages of the
specific refrigerant.
6. Section 301 and 114 Do Not Grant EPA Authority To Regulate
Substitutes
    Two commenters stated that section 301 grants EPA general
rulemaking authority but does not authorize the Agency to act where a
specific statutory provision already has addressed an issue. They
further stated that section 608(a) does address the issue of whether
the refrigerant management regulations apply to substitutes and
therefore EPA cannot use section 301 to create that authority.
    As discussed above, nothing in Title VI says what refrigerant
management requirements should apply to substitutes: Therefore, this is
not a situation where a specific statutory provision has already
addressed the issue. EPA is issuing regulations to interpret, explain,
and enforce the venting prohibition in section 608(c)(2) with regard to
non-exempt substitutes. EPA is not deriving substantive authority from
section 301. Rather, EPA is relying on section 608 for its substantive
authority and is looking to section 301 as supplemental authority to
issue regulations to carry out its functions under section 608.
Similarly, EPA is looking to section 114 not for the substantive
refrigerant management requirements being finalized today but rather as
authority to require recordkeeping and reporting in carrying out the
venting prohibition for non-exempt substitutes.

IV. The Revisions Finalized in This Rule

A. Revisions to the Definitions in Sec.  82.152

    EPA proposed to update and clarify many of the definitions in
subpart F. EPA also proposed to add new definitions and remove
definitions that solely restated the required practice. In general,
these revisions are to improve readability, increase consistency with
how the term is used in the regulatory text, and specifically
incorporate substitute refrigerants as appropriate.
    EPA received comment on the proposed revisions to definitions of
refrigerant and appliance, as well as terms specifically applicable to
the leak repair portion of the regulations. EPA also received requests
to define additional terms. Those comments, and changes from the
proposed definitions that are being made in this final rule, are
discussed later in this section with those terms. EPA is finalizing as
proposed the other revisions to definitions in this section that were
addressed in the notice of proposed rulemaking and where we did not
receive comments. Other revisions elicited only supporting comments,
which are briefly noted in the descriptions of the revisions.
Appliance
    EPA proposed to define appliance as any device which contains and
uses a class I or class II substance or substitute as a refrigerant and
which is used for household or commercial purposes, including any air
conditioner, motor vehicle air conditioner, refrigerator, chiller, or
freezer. EPA is finalizing three revisions to the definition of
appliance. First, EPA is extending the subpart F regulatory definition
to apply to substitute refrigerants. Second, EPA is adding ``motor
vehicle air conditioner'' to the list of example appliances. Third, EPA
is adding a sentence stating that each independent circuit on a system
with multiple circuits is considered a separate appliance.
    The prior definitions in subpart F are written to separate ozone-
depleting substances from non-ozone depleting substitutes. EPA's prior
regulations defined an appliance as a device which contains and uses a
refrigerant. As relevant here, section 601 of the CAA defines an
appliance as a ``device which contains and uses a class I or class II
substance as a refrigerant.'' Class I and class II substances are
defined as substances listed under sections 602(a) or (b),
respectively. Section 601 of the CAA does not define refrigerant but
EPA's regulations at Sec.  82.152 as they existed before this
rulemaking defined refrigerant as solely class I or class II ozone-
depleting substances, or mixtures containing a class I or class II ODS.
    Defining these terms in this manner was appropriate before section
608(c)(2) took effect on November 15, 1995. Under section 608(c)(2),
the venting prohibition applies to substitutes for ODS refrigerants
and, accordingly, it states that ``[f]or purposes of this paragraph''
appliance includes any ``device which contains and uses as a
refrigerant a substitute substance and which is used for household or
commercial purposes.'' However, EPA had not updated the definition of
appliance in subpart F to reflect section 608(c)(2). Because EPA
regulations, as they existed before this rulemaking, had defined an
appliance as a device that contains and uses a refrigerant, and
refrigerant in a way that does not include substitutes, substitutes
were excluded from the regulatory definition of appliance.
    In this action, EPA is revising the definition of appliance so that
it encompasses the definition of the term in both sections 601 and 608
of the CAA. EPA is defining appliance as any device which contains and
uses a class I or class II substance or substitute as a refrigerant and
which is used for household or commercial purposes. This revision makes
the regulatory definition consistent with both sections 601 and 608 of
the CAA, improves internal consistency of the regulations, and
increases clarity for the regulated community.

    One commenter stated that EPA should not add ``substitutes'' to the
definition of appliance because CAA section 601(1) already defines
appliance and ``substitutes'' is not included. EPA responds that while
the definition of appliance in section 601(1) does not contain
``substitutes,'' section 608(c)(2) does extend the term appliance to
systems containing substitutes for purposes of that paragraph. It is
reasonable to update the regulatory definition so that there is a
consistent definition of appliance throughout subpart F. Further,
because the regulations in subpart F address the venting prohibition
under section 608(c)(2) for substitute refrigerants and requirements to
interpret, explain, and enforce the de minimis exemption to that
prohibition, it is reasonable to include ``substitutes'' in the
regulatory definition of appliance. In addition, this rulemaking only
changes the definition of appliance as it appears in subpart F, but the
definition of the term in other regulations under Title VI, such as in
40 CFR 82.3, remains unchanged.
    EPA also proposed and is finalizing the addition of ``motor vehicle
air conditioner'' to the list of example appliances. Two commenters
objected to this proposal, stating that neither definition of appliance
in section 601 or 608 of the CAA specifically includes motor vehicle
air conditioners. One commenter states that Congress specifically
considered but ultimately decided against explicitly including ``motor
vehicles'' within the definition of appliance in section 601 of the
CAA.
    A plain reading of the Clean Air Act would include motor vehicle
air conditioning under appliance. Section 601 of the CAA defines an
appliance as ``any device . . . which is used for household or
commercial purposes including any air conditioner . . .'' (emphasis
added). In the 1993 Rule establishing regulations under section 608 for
the first time, the Agency stated the following:

    The Act defines `appliance' as `any device which contains and
uses a class I or class II substance as a refrigerant and which is
used for household or commercial purposes, including any air
conditioner, refrigerator, chiller, or freezer.' EPA interprets this
definition to include all air-conditioning and refrigeration
equipment except that designed and used exclusively for military
applications. Thus, the term includes all the sectors of air-
conditioning and refrigeration equipment described under Section
III.A above, including household refrigerators and freezers (which
may be used outside the home), other refrigerated appliances,
residential and light commercial air-conditioning, transport
refrigeration, retail food refrigeration, cold storage warehouses,
commercial comfort air-conditioning, motor vehicle air conditioners,
comfort cooling in vehicles not covered under section 609, and
industrial process refrigeration.'' (58 FR 28669; May 14, 1993,
emphasis added)

    In that same final rule, EPA established the definition of MVAC in
subpart F as ``any appliance that is a motor vehicle air conditioner as
defined in 40 CFR part 82, subpart B'' (emphasis added), and that
definition has not since been changed. The commenters themselves state
that procedures that are not regulated under section 609, such as the
disposal of MVACs and the purchase of refrigerant in some sized
containers, are covered by section 608. Furthermore, they agree that
the prohibition against venting ODS and substitute refrigerants in
section 608 is also already applicable to refrigerants used in MVAC and
MVAC-like appliances. This necessarily implies that appliance as used
in section 608 includes ``motor vehicle air conditioners.'' The
inclusion of ``motor vehicle air conditioners'' as an example within
appliance is a clarification, and it reflects the way the term
appliance has been used throughout the history of the program. Specific
provisions in subpart F that relate to activities that are regulated
for MVACs under section 609 refer, as appropriate, to the subpart B
regulations issued under section 609 of the CAA.
    Comments from the auto industry also expressed concern that adding
motor vehicle air conditioners to the list of examples in the
definition of appliance would affect EPA's exemption from servicing
requirements for MVACs in vehicles that have not yet left the
manufacturing facility. In the 1992 rule establishing regulations under
section 609, EPA stated that:

a motor vehicle air conditioner is not subject to these regulations
prior to the completion of final assembly of the vehicle by the
original equipment manufacturer. While repair or service work on air
conditioners in unfinished vehicles may well fit the definition of
`service for consideration,' the equipment and technician
certification requirements of these rules do not apply as the motor
vehicle air conditioner is not subject to these rules prior to the
completion of the final assembly process by the vehicle's
manufacturer. (57 FR 31246; July 14, 1992)

    The addition of motor vehicle air conditioners as an example within
the definition of appliance does not affect current practices and EPA
regulations as they affect vehicle manufacturing. That was not the
intent of the proposed change and is not a result of this final action.
As previously discussed, the definition of motor vehicle air
conditioner in subpart F is ``any appliance that is a motor vehicle air
conditioner as defined in 40 CFR part 82, subpart B'' and the
definitions within subpart B, under section 609, exclude vehicles that
have not completed manufacturing by the original equipment
manufacturer. EPA provided the following explanation for the exclusion
of vehicles that have not yet been fully manufactured from the
servicing requirements under section 609 in the 1992 final rule:

    EPA believes the repair of newly manufactured units is not
likely to be a common occurrence and when it does occur, the
manufacturing facilities clearly use equipment to recover and
recycle the refrigerant so that it may be reintroduced once the
motor vehicle air conditioner is repaired. The equipment is
significantly different from the kind of equipment covered by EPA's
definition of approved equipment, yet serves the purpose of such
equipment equally well. In addition, the technicians performing this
operation are typically manufacturing employees, not service
technicians. For all these reasons, the Agency believes it is not
necessary at this time to extend the requirements of this servicing
regulation into the assembly operation. . . EPA wants to be clear
that this exclusion is limited to final assembly activities
conducted by the vehicle's original manufacturer, and does not
include service or repair activities conducted, for example, by a
dealer. (57 FR 31245, July 14, 1992)

    One commenter further stated that it is not necessary to impose new
technician training and certification requirements, or other regulatory
requirements, for the automobile company and component supplier
employees and contractors engaged in these activities. EPA agrees and
reiterates that because the venting prohibition already applied to ODS
and substitutes, this final action will not have any new effect on the
automotive manufacturing process or individuals employed in the
automotive and/or MVAC manufacturing process prior to the vehicle
leaving the manufacturing plant. EPA's regulations under both sections
608 and 609 are intended, and will continue, to apply only to MVACs
that are fully manufactured.
    A few commenters requested that EPA clarify that for systems
containing multiple circuits, each independent circuit is considered a
separate appliance for the purposes of subpart F. This is the position
that EPA has taken in the Compliance Guidance for Industrial Process
Refrigeration Leak Repair Regulations under Section 608 of the Clean
Air Act from October 1995 and the commenters believe that making such a
statement in the regulations will be clearer to the regulated
community.

EPA agrees and is adding a sentence clarifying this point to the
definition.
    Many commenters from the supermarket industry believe that the
Agency's interpretation of the term appliance is too broad. In these
commenters' view, appliances are display cases or unit coolers and not
the broader system of piping, compressors, and condensing units to
which those are attached. One commenter suggested that EPA create a
definition for the term system to indicate a combination of various
pieces of equipment and appliances that are professionally and
specifically designed and erected for a particular application. Another
commenter suggested that EPA define the refrigerant circuit as separate
from the appliance. These commenters are especially concerned about a
definition of appliance that includes all coolers, display cases,
components, and piping in light of EPA's proposal to require that an
appliance be retired if it exceeds the proposed two-year leak limit.
    EPA responds that the Agency interprets an appliance as a fully
assembled device that can function for its intended purpose.
Components, on the other hand, are all the parts of the appliance that
make up the refrigerant circuit, as described later in this section. As
EPA described in the final rule allocating HCFCs for 2010-2014,
``appliances are separate from components, which are the individual
parts of an appliance, such as a condensing unit or line set, that by
themselves cannot function to provide a cooling effect'' (74 FR 66439;
December 15, 2009). EPA recognizes that some would prefer that some
components be considered appliances. For example, some members in the
industry consider a condensing unit in a residential split system to be
an appliance. However, EPA does not believe it is practical or clear
for some components to also be considered appliances in the regulatory
definitions. The concepts of full charge or leak rate do not make sense
in the context of only a component. Finally, EPA notes that much of
these commenters' concerns about the scope of the term appliance was in
response to EPA's proposal that chronically leaking appliances be
retired. As discussed in Section IV.F.12, EPA is not finalizing the
proposed requirement for automatic retirement of chronically leaking
appliances.
Apprentice
    As proposed, EPA is amending the definition of apprentice to
replace the ``Bureau of Apprenticeship and Training'' with the ``Office
of Apprenticeship'' to match the current name of the office and to make
minor edits to improve clarity and readability.
Batch
    EPA proposed a requirement that each batch of reclaimed refrigerant
be tested. EPA did not propose to define ``batch'' but is doing so in
this final rule based on requests by commenters to clarify the term.
EPA agrees with the comment that adding a definition of batch will
clarify this requirement, and is defining the term based on language
provided by multiple commenters. Therefore, EPA is defining batch to
mean a single bulk cylinder of refrigerant after all reclamation has
been completed prior to packaging or shipping to the market.
Certified Refrigerant Recovery or Recycling Equipment
    As proposed, EPA is removing the defined term certified refrigerant
recovery or recycling equipment which was merely a reference to the
sections of the Code of Federal Regulations that discuss the
certification program. This term was also used inconsistently
throughout subpart F as ``recovery and recycling equipment,''
``recovery or recycling equipment,'' ``recycling and recovery
equipment,'' and ``recycling or recovery equipment.'' The regulations
at Sec.  82.36 make a distinction, in the context of MVAC servicing,
between equipment that only recovers refrigerant and equipment that
both recovers and recycles refrigerant. The regulations in subpart F
generally do not make a distinction. The standards in appendices B1 and
B2 refer to recovery and/or recycling equipment while the standard in
appendix C for small appliances refers to recovery equipment only. For
consistency, in the revised provisions, EPA is using ``recovery and/or
recycling equipment'' throughout, except for when referring only to
small appliances.
Class I and Class II
    EPA is finalizing as proposed regulatory definitions for class I
and class II ozone-depleting substances to assist the reader. These
terms are currently defined in section 601 of the CAA and in 40 CFR
part 82, subpart A. EPA is finalizing the addition of a definition of
class I as an ozone-depleting substance that is listed in 40 CFR part
82, subpart A, appendix A. Similarly, EPA is finalizing the addition of
a definition of class II as an ozone-depleting substance that is listed
in 40 CFR part 82, subpart A, appendix B. EPA also notes that the
regulatory text uses class I substance, class I ODS, and class I
refrigerant interchangeably (and similarly uses class II substance,
class II ODS, and class II refrigerant interchangeably) and all are
intended to have the same meaning for the purpose of subpart F.
Comfort Cooling
    EPA is finalizing the addition of a definition for comfort cooling.
The leak repair provisions divide refrigeration and air-conditioning
equipment into four categories: Comfort cooling, commercial
refrigeration, industrial process refrigeration, and other. EPA's prior
regulations defined commercial refrigeration and industrial process
refrigeration but not comfort cooling.
    For purposes of the leak repair requirements, EPA proposed to
define comfort cooling as the air-conditioning appliances used to
provide cooling in order to control heat and/or humidity in facilities
including but not limited to office buildings and light commercial
buildings. EPA further proposed to include language explaining that
comfort cooling appliances include building chillers and roof-top self-
contained units, and may be used for the comfort of occupants or for
climate control to protect equipment within a facility, such as but not
limited to computer rooms. EPA sought comments on the applicability of
the proposed definition of comfort cooling to air-conditioning
equipment that is typically used to provide cooling and or humidity
control in such environments.
    Commenters suggested that EPA remove the reference to equipment and
computer rooms as this is beyond the scope of comfort cooling. One
commenter suggested that comfort cooling only include computer rooms
set to above 68 degrees F to align the definition with CARB-32. That
commenter also suggested that appliances used to cool computer rooms
would fall under the category of ``other appliances.'' Another
commenter believes that such appliances are currently considered as
IPR. EPA responds that the intent was to apply the term comfort cooling
only to spaces occupied by humans. EPA has made edits to better reflect
this understanding in the final definition and is therefore not
including in the final definition the last sentence from the proposed
definition (which read ``[t]hey may be used for the comfort of
occupants or for climate control to protect equipment within a
facility, including but not limited to computer rooms.'').
    EPA notes here that comfort cooling, with respect to the leak
repair provisions in this subpart, does not include MVACs or MVAC-like
appliances.

Commercial Refrigeration
    As proposed, EPA is finalizing the amendment to the definition of
commercial refrigeration that removed the sentence stating that this
equipment typically contains a charge size over 75 pounds. While
accurate, this sentence has caused confusion as to whether or not the
leak repair requirements are applicable to such appliances with a full
charge between 50 pounds, as stated in the leak repair required
practices, and 75 pounds. The leak repair requirements do apply because
the threshold is a refrigerant charge of 50 pounds or greater. EPA is
removing this sentence to avoid this confusion. EPA received comments
in support of this revision.
Critical Component/Component
    As proposed, EPA is removing the defined term critical component
and adding the term component. The term critical component was only
used in the context of an extension for the repair of IPR when critical
components could not be delivered within the necessary time. EPA is
amending the definition so that it is not limited to IPR, but also
includes comfort cooling and commercial refrigeration appliances. As
discussed in Section IV.F of this notice, EPA is applying the
extensions for leak repairs to all types of appliances. The
unavailability of a component is not unique to IPR and EPA is granting
all appliances the same flexibility to request additional time. This
revision to the regulatory definitions supports that flexibility.
    EPA proposed to define component as ``a part of the refrigerant
loop within an appliance including, but not limited to, compressors,
condensers, evaporators, receivers, and all of its connections and
subassemblies.'' Component is intended to be broader than critical
component. EPA considers components to include all the parts of the
appliance that make up the refrigerant circuit such as the compressor,
heat exchangers (condenser and evaporator), and valves (e.g., heat
recovery, expansion, charging). Other components may include receivers,
manifolds, filter driers, and refrigerant piping. EPA is finalizing
this definition substantially as proposed, although it is replacing the
word ``loop'' with ``circuit,'' as refrigerant circuit is a defined
term in the regulations.
Custom-Built
    As proposed, EPA is amending the definition of custom-built to
remove a citation to a section of the regulation that has moved.
Disposal
    EPA proposed to amend the definition of disposal to clarify that
the disposal process includes the destruction of an appliance that
releases or would release refrigerant to the environment. This proposed
revision is intended to cover activities such as vandalism or the
cutting of refrigerant lines, whether to steal metal or to vent the
refrigerant or both. EPA also proposed to clarify that the disassembly
of an appliance for recycling, as well as reuse, is part of the
disposal process.
    One commenter stated that the regulatory definition of disposal is
inconsistent with EPA's Sustainable Materials Management policy and
with the RCRA definition of disposal at 40 CFR 260.10, which leads to
regulatory confusion. The commenter seeks to clarify that the recycling
of appliances or components is separate from disposal. The commenter
believes there should be four definitions regarding recycling and
disposal: (1) Recycle refrigerant; (2) dispose of refrigerant; (3)
recycle an appliance; and (4) dispose of an appliance. The commenter
finds that the proposed revision to the definition confuses the
distinction between recycling and disposal. The commenter also finds
that the word ``destruction'' is too broad if EPA is trying to address
vandalism, line-cutting, or theft and is concerned that the term
equates recycling with such unlawful activities.
    EPA responds that the Agency addresses the recycling and disposal
(or reclamation) of refrigerant elsewhere in subpart F. The safe
disposal provisions at Sec.  82.155 relate to the disposal of
appliances. The Clean Air Act in 608(a) refers to the ``service,
repair, and disposal of appliances'' and 608(c) refers to the
``maintaining, servicing, repairing, or disposing of an appliance''
(emphases added). The manner in which the appliance is disposed of,
whether by recycling, landfilling, reuse of component parts, or another
method is not addressed by the CAA. For the purposes of section 608,
what is relevant is that an action is taken on an appliance at the end
of its useful life that releases or would release refrigerant if the
proper precautions are not taken. EPA agrees it is appropriate to
specify what is included in disposal for clarity but does not agree
that the term must have the same meaning in section 608 of the CAA as
under RCRA or the Sustainable Materials Management policy. The
commenter does not make clear how the Agency's Sustainable Materials
Management policy is in conflict with the requirement in subpart F to
recover, or verify the prior recovery, of refrigerant in discarded
appliances. EPA is finalizing its proposal to include recycling for
scrap as one of the methods by which an appliance may be disposed.
    Furthermore, EPA's intent is to address the various actions taken
upon an existing and operational system that will effectively end its
useful life and potentially release refrigerant. Both recycling and
vandalizing a fully charged appliance would have that effect, though
EPA recognizes the distinctions between those two actions. This
revision is also consistent with a recent court decision-which found
that cutting a functioning condenser unit and releasing refrigerant
into the environment constituted disposal of an appliance within the
meaning of CAA section 608 and its implementing regulations, even if
the underlying intent was to steal and sell the metal piping. United
States v. Harrold, No. 2:15-mj-605 (S.D. Ohio, Oct. 28, 2015) (order
concluding that the complaint sufficiently charged a violation of the
Act and that sufficient evidence was presented to establish probable
cause that defendant violated the Act).\17\ See also United States v.
Morrissette, 579 F. App'x 916, 919 (11th Cir. 2014) (stating that
defendant who stole metal coils from commercial air conditioning units
had violated the CAA regardless of the underlying intent to steal
copper). EPA is finalizing the definition of disposal substantially as
proposed. In response to the comment, EPA is replacing the word
``destruction'' with ``vandalism'' to more specifically refer to
actions such as line cutting and metal theft. The vandalism would have
to be of such a nature that it would release the refrigerant. EPA is
also separating ``[t]he recycling of any appliance for scrap'' from
``[t]he disassembly of any appliance for reuse of its component
parts.'' Both are considered disposal.
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    \17\ A copy of this opinion and other documents related to this
case are available in the docket for this rulemaking.
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Follow-Up Verification Test
    EPA is amending the definition of follow-up verification test to
remove duplicative text that was also covered in Sec.  82.156(i). The
revised definition describes what the test is and how it is conducted,
not the regulatory requirements of the test. The revised regulatory
requirements are found in Sec.  82.157(e). EPA is not specifying one
test that would satisfy what constitutes a follow-up verification test,
but is providing an illustrative list of tests that would qualify. EPA
does not intend for this list to be all-inclusive, but rather to

provide examples of known methodologies of performing leak repair
verification tests.
    One commenter suggested that EPA modify the name of this test to
follow-up leak repair verification test. The commenter has found that
over 40 percent of technicians who do not work on IPR, where these
tests were previously required, were confused about the distinction
between the initial and follow-up verification tests. The technicians
indicated to the commenter that such a name change would make it
clearer that the tests are about the effectiveness of the repair. EPA
disagrees that changing the name of the test will improve technician's
abilities to conduct these tests or reduce refrigerant emissions. It is
understandable that technicians that do not work on IPR equipment and
are not trained in the procedures of subpart F that had previously only
applied to IPR would not be aware of the requirements. EPA is concerned
that changing the name of the test would confuse those who already know
of the requirement. EPA is therefore finalizing the definition of
follow-up verification test as proposed.
Full Charge and Seasonal Variance
    EPA is amending the definition of full charge to account for
seasonal variances and to make minor edits for readability. Owners or
operators of commercial refrigeration appliances and IPR have
previously expressed concerns that the full charge may not be
accurately determined due to seasonal variances that may alter the
amount of refrigerant in an appliance. Seasonal variances in ambient
temperature and pressure have the effect of forcing refrigerant to
different appliance components (for example, from an appliance's
receiver to the condenser).
    EPA is allowing owners or operators to account for seasonal
variances by measuring the actual amount of refrigerant added to or
evacuated from the appliance. EPA is defining full charge as the amount
of refrigerant required for normal operating characteristics and
conditions of the appliance as determined by using one or a combination
of the following four methods:
    (1) Use of the equipment manufacturer's determination of the full
charge;
    (2) Use of appropriate calculations based on component sizes,
density of refrigerant, volume of piping, and other relevant
considerations;
    (3) Use of actual measurements of the amount of refrigerant added
to or evacuated from the appliance, including for seasonal variances;
and/or
    (4) Use of an established range based on the best available data
regarding the normal operating characteristics and conditions for the
appliance, where the midpoint of the range will serve as the full
charge.
    To further explain the definition of full charge, EPA is creating a
defined term for seasonal variance. This term means the removal of
refrigerant from an appliance due to a change in ambient conditions
caused by a change in season, followed by the subsequent addition of an
amount that is less than or equal to the amount of refrigerant removed
in the prior change in season, where both the removal and addition of
refrigerant occurs within one consecutive 12-month period. A complete
discussion of allowing for seasonal variances when calculating
appliance leak rates is found in Section IV.F of this preamble.
    EPA received several comments on the proposed definition of
seasonal variance. Two commenters recommended that EPA use the removal
of refrigerant as the first step and the addition of refrigerant as the
second step. While EPA proposed the opposite framing, you can measure
the amount removed to be able to determine the amount that can be added
in the next season without triggering a leak rate calculation. EPA has
adjusted the definition and the narrative in the preamble accordingly.
    Four commenters suggested that the amount added and removed does
not always have to be equal, as was proposed. EPA agrees that as long
as the amount added is less than or equal to the amount removed in the
prior season, the addition will be considered a seasonal variance.
    One commenter requested that EPA clarify whether the added
refrigerant amount is to be included in the full charge amount. The
commenter is concerned that not reflecting the seasonal variance could
affect what is considered normal operating characteristics and
conditions, which would in turn affect when verification tests can be
conducted. Another commenter proposed that the maximum charge be used
at all times when calculating the leak rate, regardless of what is
actually in the appliance at the time of repair.
    Given the concerns raised by the commenter about including seasonal
variances in the appliance's full charge to prevent problems with
compliance with normal operating characteristics and conditions, the
full charge must be adjusted to account for the amount of refrigerant
removed or added for a seasonal variance if the full charge was
calculated using any method other than method four, since that method
inherently includes a range. To be clear, verification tests should be
conducted regardless of whether the appliance contains extra
refrigerant to account for a seasonal variance. This could result in
two ``full charges,'' one for each season. EPA does not agree that it
would be appropriate to use the maximum charge or the higher of the two
full charge calculations because some seasonal variances are large
enough that adjusting the full charge would make significant difference
in the leaks that would exceed the applicable leak rate. Since this is
an added flexibility, requiring slightly more recordkeeping is
warranted.
    One commenter indicated that refrigerant charge should never be
added or removed throughout the year. While this may be true for some
types of equipment, there are legitimate situations where such
additions or removals are appropriate, typically in larger commercial
refrigeration and industrial process refrigeration appliances. For
example, one commenter cited the instance of a seafood packer who may
need to add refrigerant during crab season when the refrigeration or
freezing load spikes.
    Finally, the Agency is allowing an owner or operator to choose a
combination of methods to determine full charge. There are instances
where multiple methods may be necessary to accurately determine the
full charge. Further EPA is providing flexibility by not requiring that
owners or operators commit to the same method for the life of the
appliance. EPA is requiring in this final rule that owners or operators
maintain a written record of the full charge, the method(s) used to
determine the full charge, and any changes to that amount.
High-Pressure Appliance
    EPA is amending the definition of high-pressure appliance as
proposed to update the list of example refrigerants with the most
commonly used refrigerants today. Because revisions to appliance and
refrigerant carry over into this term as well, under the revisions
finalized in this rule, high-pressure appliances include those that use
ODS and non-ODS substitute refrigerants.
Industrial Process Refrigeration
    EPA is amending the definition of industrial process refrigeration
as proposed to make minor clarifications for readability and to remove
a citation

to a section of the regulation that has moved.
Industrial Process Shutdown
    EPA is amending the definition of industrial process shutdown as
proposed to remove a citation to a section of the regulation that has
moved.
Initial Verification Test
    EPA is amending the definition of initial verification test to
remove duplicative text that is also covered in the required practices
section of the regulation. The revised definition describes in general
terms what the test is, not what the requirements of the test are. The
purpose of this test is to verify that a leak has been repaired prior
to adding refrigerant back into the system. The requirements for an
initial leak repair verification test are described in Section IV.F.8
of this notice and in Sec.  82.157(e)(1) of the revised regulation.
Leak Inspection
    EPA is creating a new defined term leak inspection. EPA proposed to
define leak inspection as the examination of appliances using a
calibrated leak detection device, a bubble test, or visual inspection
for oil residue in order to determine the presence and location of
refrigerant leaks.
    Some commenters recommended additional leak detection methods
including: Standing pressure/vacuum decay tests, ultrasonic tests,
periodic evacuations, gas-imaging cameras, sight glass checks, viewing
receiver levels, pressure checks, charging charts, and the sub-cooling
method (for expansion systems).
    In general, leak detection methods fall into two categories: Ones
that indicate that an appliance is leaking; and ones that can identify
the location of a leak. EPA stated in the proposal that the proposed
definition covers the techniques currently used to detect the location
of leaks, not activities that would assist only in determining whether
a system is leaking generally without providing information that would
allow detection of the location of the leak. One commenter stated that
limiting leak inspections in such a manner increases the costs of
conducting leak inspections.
    EPA responds that the purpose of a leak inspection is to determine
the location of a leak, not to determine whether an appliance is
leaking. As discussed in Section IV.F.4 of this notice, EPA is
modifying the leak inspection requirement so that it is only required
on appliances that have exceeded the applicable leak rate. To repair a
leak, the technician must be able to locate it. Therefore, inspection
methods that only indicate that the appliance is releasing refrigerant
do not provide the necessary information for a technician to repair
leaks. Further leak inspections on the repaired system may benefit from
using a combination of methods to determine whether the system
continues to leak refrigerant, and if so, where.
    Commenters also recommended that EPA remove some of the proposed
inspection methods. Multiple commenters recommended that EPA not
include a visual inspection for oil residue, as that is not a reliable
indicator of a refrigerant leak. Similarly, some commenters noted that
the bubble test should be used in conjunction with another leak
detection method due to its low sensitivity or potential unreliability
when performed outdoors. EPA agrees that a visual inspection for oil
residue is not dispositive and has removed that method from the list of
leak inspection methods included in the definition as finalized. EPA is
including bubble tests in that list because it may be appropriate in
some circumstances. EPA is also strengthening the leak inspection by
requiring under Sec.  82.157(g)(2) that it be performed by a certified
technician, while providing discretion for the technician to determine
which methods are appropriate.
    Some commenters also recommended that EPA remove the word
``calibrated'' because some electronic leak detectors are self-
calibrating while others do not require calibration. Instead, these
commenters suggested that EPA require that the devices be operated and
maintained according to manufacturer guidelines. Another commenter
recommended that EPA maintain the requirement that leak detection
devices be calibrated. Given the variability of equipment, EPA agrees
with the comments suggesting that it is preferable to follow the
manufacturer guidelines. Thus, in this final definition EPA is
replacing ``calibrated leak detection device'' with ``leak detection
device operated and maintained according to manufacturer guidelines''
based on public comment.
    In this final rule, EPA is providing a non-exhaustive list of
methods for leak inspections, and clarifying that techniques that only
determine whether the appliance is leaking must be used in combination
with another method that can identify the location of the leak. In
general, commenters encouraged EPA to allow for or require multiple
methods due to the limitations of individual techniques in different
circumstances. This approach is consistent with those comments.
Leak Rate
    EPA proposed, and is now finalizing, one substantive change to the
definition of leak rate to change the calculation performed under what
is called Method 2 under the prior rules. The first step of that method
has been to take the sum of the quantity of refrigerant added to the
appliance over the previous 365-day period (or over the period that has
passed since leaks in the appliance were last repaired, if that period
is less than one year). Instead of the cut-off being since the last
repair (if less than 365 days), EPA is amending Step 1 to cover the
period of time since the last successful follow-up verification test
showing that all identified leaks were successfully repaired (if less
than 365 days have passed since the last refrigerant addition). The
goal of this change is to improve the clarity of the requirements.
Under the prior definition, it was unclear if the repair had to be
successful in order to be considered in the leak rate calculation.
These revisions clarify that all identified leaks must be verified as
having been successfully repaired.
    EPA is also renaming the two methods from Method 1 and Method 2 to
``Annualizing Method'' and ``Rolling Average Method'' to improve
readability. EPA is also finalizing the proposed change to clarify that
while the same leak rate calculation must be used for all appliances at
the same facility, this only refers to the appliances subject to the
leak repair provisions (i.e., appliances normally containing 50 or more
pounds of refrigerant).
    EPA received three comments on this proposed definition. One
commenter recommended that EPA remove the Rolling Average Method for
simplicity and change the Annualizing Method such that the calculation
is based on the time since the last successful follow-up verification
test instead of the last refrigerant addition. The commenter further
recommended changes to the Rolling Average Method, if EPA keeps it in
the regulation, to better express the amount of refrigerant that would
be lost if that leak continued for a full year.
    EPA responds that while reducing the number of leak rate
calculation methods could simplify the regulations, numerous appliance
owners and operators have used the Rolling Average method for years and
they continue to seek flexibility. EPA does not see an environmental
benefit in reducing this flexibility. On the suggestions to change the
Annualizing and Rolling Average Methods, EPA is not adopting the
suggestions. Broadly speaking, EPA

interprets the comment to indicate that the Rolling Average Method
should be more like the Annualizing Method and vice versa such that
they are effectively identical. This seems unnecessary and confusing,
and limits flexibility. Both methods have strengths that would be
undercut by the suggested changes.
    The strength of the Annualizing Method is that it is future-
oriented. It allows an owner or operator to ``close out'' each leak
event so long as the requirements are followed and does not lump past
leak events with the current leak event. It considers the amount of
time since the last refrigerant addition and then scales that up to
provide a leak rate that projects the amount lost over a whole year if
not fixed. As a result, this formula will yield a higher leak rate for
smaller leaks if the amount of time since the last repair was shorter.
This can have significant environmental benefits by requiring more
thorough leak inspections and verified repairs sooner. The commenter's
suggested change would make this method too similar to the Rolling
Average Method for minimal, if any, benefit and could potentially
increase the amount of time included in each leak rate calculation.
Stretching out the period of time covered could result in lower leak
rates depending on the situation.
    The Rolling Average Method also has its strengths. It accounts for
all refrigerant additions over the past 365 days or since the last
successful follow-up verification test showing that all identified
leaks were successfully repaired (if less than 365 days). If an owner
or operator verifies all identified leaks are repaired, this method
would also allow an owner or operator to ``close out'' a leak event. If
there is no follow-up verification test showing that all identified
leaks were successfully repaired within the last year, the leak rate
would be based completely on actual leaks in the past year. This
retrospective approach measures actual performance and if leaks are
identified and fixed quickly, an appliance may never reach the
applicable leak rate.
    Two other commenters questioned the rationale for the change given
the need to update tracking software and provide staff training. EPA
explained its rationale in the proposed rule and earlier in this
notice. Specifically, the change is needed to provide clarity that
repairs must be successful and verified in order to be considered in
the calculation and to improve effectiveness of the rule.
    In this action, EPA is requiring that owners or operators use a
prospective approach (the Annualizing Method), that focuses on the
current leak event rather than the size of past leaks, or a
retrospective approach (the Rolling Average Method), where past
performance is key. If an owner or operator repairs all identified
leaks and verifies that the repairs have been successful, then the
Agency considers that a sufficient clearing event in that the leak rate
has been brought as close to zero as possible. We recognize that these
changes may require modification to software and technician training
with the new requirements. For that reason, EPA intends to develop
several compliance assistance tools that will help technicians and
owners/operators to better understand the requirements. EPA has also
delayed the compliance date for the appliance maintenance and leak
repair requirements to January 1, 2019, to allow time for the industry
to prepare for these changes.
Low-Pressure Appliance
    EPA is amending the definition of low-pressure appliance to update
the list of example refrigerants with the most commonly used
refrigerants today. Because revisions to appliance and refrigerant
carry over into this term as well, under the revisions finalized in
this action, low-pressure appliances include those that use ODS and
non-ODS substitute refrigerants. EPA is finalizing this definition as
proposed.
Medium-Pressure Appliance
    EPA is amending the definition of medium-pressure appliance to
update the list of example refrigerants with the most commonly used
refrigerants today. Because revisions to appliance and refrigerant
carry over into this term as well, under the revisions finalized in
this action, medium-pressure appliances include those that use ODS and
non-ODS substitute refrigerants. EPA is finalizing this definition as
proposed.
Mothball
    EPA proposed to revise the defined term system mothballing to
mothball to reflect how it is used in the regulations, and EPA is
finalizing this definition as proposed. Mothballing an appliance
suspends the time needed to complete repairs, retrofit or retirement
plans, or the actual retrofit or retirement of appliances that have
triggered the leak repair requirements. The previous definition
referred to refrigeration appliances, but the suspension is allowed for
comfort cooling appliances as well as commercial refrigeration and IPR
systems. EPA is therefore removing the reference to ``refrigeration''
appliances in the definition. The previous definition also required
that the appliance be shut down for ``an extended period of time.'' EPA
is removing this phrase because the Agency is not concerned about
length of time that the system is shut down but rather that the system
has been removed from service temporarily, as opposed to permanently,
and that the refrigerant has been evacuated. The revised definition
also notes that refrigerant can be evacuated from an isolated component
of the appliance if only an isolated section or component is affected
and makes minor edits to improve clarity and readability. EPA is also
clarifying in Sec.  82.157(d)(3) and Sec.  82.157(i) that the
suspension of time ends when refrigerant is added back into the
appliance.
    One commenter recommended that EPA allow the system to be filled
with nitrogen or another inert gas to protect the system while repair
is in process. EPA responds that the regulations in subpart F do not
prohibit or address this action, as long as the holding charge is an
inert gas and not a refrigerant as defined in this subpart. However,
EPA is not making revisions to address this point specifically, as the
regulations in subpart F are concerned with refrigerants and the
nitrogen or other inert gas in this example is not being used as a
refrigerant.
Normal Operating Characteristics and Conditions
    As proposed, EPA is changing the defined term normal operating
characteristics or conditions by replacing ``or'' with ``and'' for
consistency through the regulations and to accurately describe the
intended state of the appliance to which this term refers. EPA is also
removing a reference to a section of the regulation that has moved and
adding a reference to the appliance's full charge. Operating at full
charge is a necessary element of an appliance's normal characteristics
and it should be reflected in the definition. Finally, the revised
definition clarifies that this term applies to all appliances, not just
refrigeration appliances.
Normally Containing a Quantity of Refrigerant
    As proposed, EPA is removing the defined term normally containing a
quantity of refrigerant. Because EPA is replacing this term with the
phrase ``with a full charge of'' in the regulatory text where the term
occurred, this definition is no longer needed.
One-Time Expansion Device
    EPA is amending the definition of one-time expansion device as
proposed to clarify that this includes devices that can store multiple
charges, which are

released individually to the environment to provide a cooling effect.
Opening an Appliance
    EPA proposed to amend the definition of opening an appliance to
improve readability. EPA is finalizing this amended definition as
proposed.
Reclaim
    As proposed, EPA is changing the defined term reclaim refrigerant
to reclaim so as to match usage in the regulatory text and to update
the Air Conditioning, Refrigeration, and Heating Institute (AHRI)
standard referenced in the definition. Because revisions to refrigerant
carry over into the definition for this term, it is appropriate to use
the updated AHRI standard which also includes non-ODS substitute
refrigerants.
Recover
    As proposed, EPA is changing the defined term recover refrigerant
to recover so as to match usage elsewhere in the regulatory text.
Recycle
    In the context of recycling refrigerant, EPA is finalizing
revisions to the defined term recycle refrigerant to recycle so as to
match usage elsewhere in the regulatory text. The revised term also
clarifies that reuse of recycled refrigerant must occur in equipment of
the same owner. This revision facilitates consistency with the
prohibition in Sec.  82.154(g) of the existing rules on the sale of
used refrigerant unless it has either been reclaimed or is being
transferred to an appliance owned by the same parent company or by the
same federal agency or department. EPA is finalizing this definition
substantially as proposed.
Refrigerant
    EPA is amending the definition of refrigerant, for the purposes of
subpart F, to include both ODS and substitutes that are used for heat
transfer purposes and provides a cooling effect. This amended
definition is closer to how the term is commonly understood, based on
its functional properties. From an engineering standpoint, it is
irrelevant whether or not a compound is an ODS to function as a
refrigerant. Broadening the term also brings another term in subpart F
that contains this term, refrigerant circuit, more in line with common
usage.
    One commenter stated that EPA does not have authority to regulate
substitutes to the same extent as class I and class II ODS and thus the
Agency is prohibited from redefining refrigerant to include
substitutes. EPA is revising the definition of refrigerant under
subpart F for purposes of interpreting, explaining, and enforcing the
venting prohibition, which applies to substitute refrigerants as well
as to ODS refrigerants. EPA is not revising the definition of
refrigerant for other subparts under part 82. EPA addresses comments
about its authority for this action in Section III of this notice.
Retire
    EPA is creating a defined term retire. EPA proposed retire to mean,
in reference to appliances, the disassembly of the entire appliance
including its major components, such that the appliance as a whole
cannot be used by any person in the future.
    One commenter recommended that retire not include the phrase ``such
that the retired appliance as a whole cannot be used by any person in
the future.'' The commenter is concerned that this could prevent the
reuse of certain equipment parts. Furthermore, the owner/operator has
no means to determine the ultimate fate of the retired appliance or
components. Another commenter stated that the requirement to render the
appliance unfit for use by the current or future owner is unnecessary
because retired appliances typically use an older refrigerant and are
not economical to purchase. Requiring that the owner do something to
render the unit unfit for use would impose an unnecessary burden. EPA
responds that the term retire concerns the continued use of that
appliance as a whole. All of the working components of a retired
appliance could be disassembled and resold to be used in multiple other
appliances because the original appliance, as a whole, is no longer
operating.
    Another commenter stated that appliances may be retired without
being completely disassembled. This comment stated that often,
especially for IPR, appliances can be abandoned in place for a
considerable length of time; so long as an appliance is made inoperable
and permanently shut down it should be considered retired. This
commenter provided recommended language which accurately describes the
necessary state of the appliance ``rendered unusable'' and notes that
any remaining refrigerant would be recovered from the appliance. EPA is
finalizing the definition of retire that largely matches the definition
suggested by this commenter because it more accurately describes the
intent of what the Agency proposed.
    As discussed in the proposed rule, retirement differs from
mothballing, as defined at Sec.  82.152, because a mothballed appliance
is simply evacuated and shut down until it is ready to be used once
again, whereas retirement involves a permanent shutdown of an
appliance. Retirement should also not be confused with a repair. Repair
is not expressly defined in the subpart F regulations. Repair may
include the removal of a faulty component, but such removal does not
mean that the appliance as a whole has been removed from service and
rendered unfit for further use. Throughout this rule, ``replacement''
or ``replace'' may be used when discussing a situation where an
existing appliance is retired and replaced with another appliance. In
some instances, however, the owner or operator may choose to only
retire and not replace an appliance so the two terms are not always
used together.
Retrofit
    EPA is creating a defined term retrofit. Many appliance owners or
operators have incorrectly equated retrofit with repair and EPA
received one comment on the proposed rule requesting additional
examples of activities and refrigerant conversions that would qualify
as a retrofit.
    EPA is finalizing this definition as proposed. EPA uses retrofit to
refer to a change to the appliance in order to convert it to the use of
a different refrigerant. In response to the comment requesting the
addition of examples of activities or refrigerant conversions, EPA
concludes that it is not necessary to include additional examples of
activities in the definition. Further, EPA is not specifying the type
of refrigerants that are being converted, though typically retrofits
have involved the replacement of an ODS with a non-ozone depleting
substitute. Retrofits often require changes to the appliance (for
example, change in lubricants, filter driers, gaskets, o-rings, and in
some cases, components) in order to acquire system compatibility.
Sometimes very few or no changes to the appliance are necessary to
convert from one refrigerant to another. That would still be a retrofit
because the refrigerant has changed.
    Retrofit does not apply to upgrades or repairs to existing
equipment where the refrigerant is not changed. EPA generally considers
a repair to include an action that addresses the leaking appliance or
the affected component(s) of the leaking appliance. Repairs may include
replacement of components or component subassemblies but changing the
refrigerant would make the action a retrofit.

Self-Sealing Valve
    EPA is finalizing its proposal to create a defined term self-
sealing valve. Under this definition, self-sealing valve is a valve
affixed to a container of refrigerant that automatically seals when not
actively dispensing refrigerant and that meets or exceeds established
performance criteria as identified in Sec.  82.154(c)(2). The purpose
of a self-sealing valve is to prevent or minimize inadvertent release
of refrigerant to the environment during the use and storage of the
container of refrigerant. The requirement for self-sealing valves for
small cans of MVAC refrigerant is discussed in more detail in Section
IV.C.
Small Appliance
    EPA is finalizing proposed amendments to the definition of small
appliance to remove the reference to class I and class II refrigerants.
Because revisions to appliance and refrigerant carry over into this
term as well, under the revisions finalized in this rulemaking small
appliances include those that use ODS and non-ODS substitute
refrigerants. EPA is also adding portable air conditioners to the list
of example small appliances.
    One commenter requested that EPA specifically exclude MVACs and
MVAC-like appliances from this definition. The commenter believes that
without such an exclusion those types of appliances would be included
in the revised definition of small appliance, which it characterizes as
including any appliance charged with five pounds or less of
refrigerant, and be subject to regulations that apply to small
appliances. EPA responds that MVACs and MVAC-like appliances are not
small appliances even though the charge sizes may be similar. Small
appliances must be hermetically sealed, which MVACs and MVAC-like
appliances are not.
    Another commenter noted that EPA has specifically granted an
exemption for the manufacture of small appliances in subpart B and
urged EPA to preserve that exclusion in subpart F for MVACs. The
commenter points to the definition of motor vehicle in subpart B. EPA
responds that the definition of motor vehicle air conditioner in
subpart F is simply a reference to subpart B. Thus, the use of MVAC in
subpart F has the meaning granted to it in subpart B and this rule does
not remove the exclusion granted for the assembly of MVACs in subpart
B. EPA disagrees that it is necessary to clarify this point by amending
the definition of appliance, which is a broader category, nor is it
appropriate to amend the definition of small appliance in the manner in
which the commenter recommends. See discussion under the definition of
appliance for additional information.
Substitute
    EPA is finalizing proposed amendments to the definition of
substitute to remove the phrases ``EPA-approved'' and ``in a given
refrigeration or air-conditioning end-use.'' These phrases are
references to the SNAP program, which identifies acceptable
alternatives to ODS for specific end-uses. The Agency has changed the
status of certain refrigerants from acceptable to unacceptable for new
retail food refrigeration equipment, vending machines, and motor
vehicle air conditioning (80 FR 42870; July 20, 2015). EPA has also
recently proposed to make additional changes (81 FR 22810; April 18,
2016). EPA does not mean to imply that finding a refrigerant to be
unacceptable in a given end-use under SNAP means that it is no longer
included within substitute, and thus by extension refrigerant. Were
that the case, those substances would be exempted from the safe
handling requirements of subpart F, or even the venting prohibition,
despite still being used as refrigerants. EPA intends for those
substances to continue to be subject to those requirements where they
are being used as refrigerants. Accordingly, EPA is finalizing this
revision to prevent that confusion, especially since the Agency allows
for the servicing of existing appliances designed to use refrigerants
that the Agency recently listed as unacceptable in new (and in some
cases) retrofitted appliances.
    Under the revised definition, any chemical or product, whether
existing or new, that is used by any person as a replacement
refrigerant for a class I or II ozone-depleting substance would be
considered a substitute, even if it has been recently listed as
unacceptable under SNAP in some end-uses or has not been submitted to
or reviewed by the SNAP program. One commenter stated that by limiting
the definition of substitute to replacements for ODS, EPA could be
unintentionally permitting new replacements to HFCs, as opposed to ODS,
to be beyond the scope of subpart F. Another commenter suggested that
the term be limited to the SNAP-approved list of substitutes but
provided no reasons for such a limitation.
    EPA responds that in 2004, the Agency affirmed an inclusive view of
the scope of substitutes under subpart F. In that rule, it stated:

    Under section 608, EPA considers a SNAP-approved refrigerant a
`substitute' for CFC or HCFC refrigerants under section 608 if any
of the following is the case: (1) The substitute refrigerant
immediately replaced a CFC or HCFC in a specific instance, (2) the
substitute refrigerant replaced another substitute that replaced a
CFC or HCFC in a specific instance (i.e., it was a second-or later-
generation substitute), or (3) the substitute refrigerant has always
been used in a particular instance, but other users in that end-use
have used it to replace a CFC or HCFC. (March 12, 2004; 69 FR 11958)

EPA continues to hold this interpretation, except that for the reasons
discussed above, EPA no longer maintains the position that substitutes
must be approved under SNAP in order to be considered a refrigerant
under section 608 when the substance is used as a refrigerant. In
addition, the phrase ``any chemical or product, whether existing or
new'' makes clear that the term is to be applied broadly, even to
compounds that do not yet exist or have not yet been developed.
    Other commenters recommended that EPA explicitly state the types of
refrigerants that are considered substitutes. The proposal stated that
EPA intends to apply the requirements in subpart F to all substances
that are functionally refrigerants, including but not limited to HFCs,
PFCs, HFOs, hydrofluoroethers, and hydrocarbons, as long as those
substances have not been exempted from the venting prohibition. To the
extent these comments are suggesting that EPA should provide some
examples as a non-exhaustive list in the definition, EPA agrees that
this increases clarity and EPA has added a non-exhaustive list of
examples of substances that would be included in this definition, as
well as clarifying that blends of such substances are also included.
This approach also matches other definitions in subpart F that have
similar lists of examples. To the extent the commenters are suggesting
that EPA establish an exhaustive list of substances that would qualify
as substitutes, EPA does not agree such a list is needed or would be
feasible to include. Including such a list would also be unadvisable
given the continued development of new substitutes. Therefore, the
definition provides an illustrative list of substances that are
included.
    To provide clarity, EPA is adding mention of the venting
prohibition in the definition of substitute. While EPA is finalizing
its interpretation that carbon dioxide, nitrogen, water, ammonia,
chlorine, hydrocarbons, and R-441A are substitutes, the regulations as
finalized make clear that when these substitutes are used as
refrigerants in

the end-uses specified in Sec.  82.154(a)(1), they are exempt from the
requirements of subpart F and can be referred to as ``exempt''
substitutes. Similarly, the term ``non-exempt substitutes'' as used in
this subpart refers to all other substitutes and end-uses not specified
in Sec.  82.154(a)(1) as exempt from the venting prohibition. This
clarification is only for purposes of the subpart F regulations, and
should not be construed to affect any other subpart.
    One commenter requested that the regulations include the phrase
``non-exempt refrigerants'' more frequently so that the reader does not
have to understand that the regulatory definition of refrigerants
excludes substitutes that are exempted from the venting prohibition.
EPA responds that while exempt substitutes are included in the
regulatory definition of refrigerant, the regulatory text has been
revised to clarify that the obligations under subpart F do not apply to
exempt substitutes. EPA has included in the definition of substitute a
description of the terms ``exempt substitutes'' and ``non-exempt
substitutes'' with reference to Sec.  82.154(a)(1), which provides that
exempt substitutes are exempt from the requirements of this subpart, so
that readers of the regulation can follow EPA's intent from the
definition. EPA has also added references in the regulation to class I,
class II, and non-exempt substitute refrigerants, where applicable, to
be clear which refrigerants are subject to the provisions.
Suitable Replacement Refrigerant
    EPA is removing the defined term suitable replacement refrigerant.
As discussed in Section IV.F.10 of this notice, EPA is removing the
extension to retrofit or retire an appliance using an ODS refrigerant
if a suitable replacement refrigerant with a lower ozone depletion
potential is unavailable. It is therefore appropriate to remove the
term from the list of definitions.
System Receiver
    EPA is finalizing the creation of a defined term system receiver to
provide clarity to the reader and improve the organization of these
regulations, by providing a definition of this term in a location where
the reader might expect to find it. Under the added definition, a
system receiver is the isolated portion of the appliance, or a specific
vessel within the appliance, that is used to hold the refrigerant
charge during the servicing or repair of that appliance. This
definition was previously included only in a parenthetical in the
regulatory text at Sec.  82.156(a), which describes the required
practices to properly evacuate refrigerant from an appliance. The
definition added in this rule does not introduce any new practices to
the evacuation requirements. EPA is also removing the parenthetical in
Sec.  82.156(a), as it is no longer needed.
Technician
    EPA is amending the definition of technician to improve clarity. As
revised, the definition highlights that the determining factor for
being a technician is performing actions that could reasonably be
expected to violate the integrity of the refrigerant circuit. In
general, only people who have completed the technician certification
process should be performing actions that could violate the integrity
of the refrigerant circuit and could therefore release refrigerant into
the environment.
    The exception to that general statement is that persons
maintaining, servicing, or repairing MVACs and persons disposing of
small appliances, MVACs, or MVAC-like appliances do not need to be
technicians, as defined within subpart F. This exception is explicitly
included in the definition finalized in this action. This revision is
not intended to affect the scope of the existing requirements but
rather to respond to requests from stakeholders prior to the
publication of the proposed rule that the Agency clarify which
activities must be conducted by technicians and which need not be. EPA
received comments stating that the proposed revision would require
persons maintaining, servicing, or repairing MVACs to be technicians.
EPA did not intend to impose that requirement and has corrected that in
the final rule. EPA also edited the regulations in the sales
restriction in Sec.  82.154(c) to ensure that technician applies only
to technicians authorized under section 608 and not persons authorized
under section 609.
    The prior definition of technician also included a non-exclusive
list of example activities that are reasonably expected to violate the
integrity of the refrigerant circuit as well as examples of activities
that do not. EPA proposed to edit these examples to improve clarity and
to add the following two examples of activities reasonably expected to
violate the integrity of the refrigerant circuit: Adding or removing
components and cutting the refrigerant line. EPA is finalizing the
definition substantially as proposed, including the two new example
activities that are reasonably expected to violate the integrity of the
refrigerant circuit, and with the modifications from the proposal
described above related to MVACs and persons authorized under section
609.
Very High-Pressure Appliance
    EPA is finalizing amendments to the definition of very high-
pressure appliance to update the list of example refrigerants with the
most commonly used refrigerants today. Because revisions to appliance
and refrigerant carry over into this term as well, under the revised
definition very high-pressure appliances include those that use ODS and
non-ODS substitute refrigerants.
Voluntary Certification Program
    EPA is finalizing the proposed removal of the defined term
voluntary certification program. This term references a provision in
the regulations that grandfathered in technicians who were certified
prior to the establishment of the technician certification program in
subpart F. As discussed in Section IV.J.4 below, EPA is removing these
grandfathering provisions in this action because they are no longer
needed and therefore is removing the definition as well.

B. Revisions to the Venting Prohibition in Sec.  82.154(a)

1. Background
    As explained in Section III of this notice, under the revisions
finalized in this rule, Sec.  82.154(a) prohibits the venting of ODS
refrigerants and non-ODS substitute refrigerants to the environment by
persons maintaining, servicing, repairing, or disposing of an
appliance. This provision provides an exemption to the venting
prohibition for certain substitutes in specific end-uses based on a
determination that the listed substitutes in the listed end-uses do not
pose a threat to the environment when released. As revised, this
section also exempts from the venting prohibition de minimis releases
of ODS refrigerants and non-exempt substitute refrigerants, and defines
de minimis releases of ODS refrigerants and non-exempt substitute
refrigerants to be those releases that occur when the other provisions
of subpart F (or subpart B in the case of MVACs) are followed.
2. Applying the de minimis Exemption to Substitute Refrigerants
    As explained in more detail earlier in this notice, the knowing
venting, release, or disposal of substitutes for class I and class II
refrigerants in the course of maintaining, servicing, repairing, or
disposing of an appliance or IPR is expressly prohibited by section
608(c)(1) and (2) of the CAA, effective November 15, 1995, unless the
Administrator determines that such

venting, release, or disposal does not pose a threat to the
environment. This prohibition is commonly called the venting
prohibition. Section 608(c)(1) establishes the venting prohibition for
class I and class II substances, and also establishes an exemption from
the prohibition for de minimis releases associated with good faith
attempts to recapture and recycle or safely dispose of ``any such
substance.'' The statutory language of section 608(c)(2) extends
paragraph 608(c)(1) to substitutes for class I and class II substances
used as refrigerants in appliances and IPR. This extension includes
both the prohibition on venting and the exemption for de minimis
releases associated with good faith attempts to recapture and recycle
or safely dispose of such substances.
    Prior to this rulemaking, for class I and II substances EPA had
interpreted as de minimis those releases that occur despite compliance
with EPA's required practices under the previous regulations for
recycling and recovery, use of certified recovery and/or recycling
equipment, and technician certification programs. EPA interpreted
compliance with those regulations to represent ``good faith attempts to
recapture and recycle or safely dispose'' of refrigerant. Accordingly,
the prior regulations at Sec.  82.154(a)(2) provided that releases of
ODS refrigerants are considered de minimis only if they occur when the
other provisions of subpart F (or subpart B in the case of MVACs) are
followed. Although the prior regulations at Sec.  82.154(a) exempted de
minimis releases of non-exempt substitutes from the venting
prohibition, those regulations did not provide any express guidance for
such substitutes as to what practices are considered ``good faith
attempts to recapture and recycle or safely dispose'' of the substitute
such that incidental releases would qualify for the de minimis
exemption.
    EPA interprets the phrase ``good faith attempts to recapture and
recycle or safely dispose'' similarly when it applies to substitute
refrigerants under section 608(c)(2) as when it applies to ODS
refrigerants under section 608(c)(1). Thus, compliance with the
provisions regarding the evacuation of equipment, use of certified
equipment, and technician certification in any instance where a person
is opening (or otherwise violating the refrigerant circuit) or
disposing of an appliance would represent ``good faith attempts to
recapture and recycle or safely dispose'' of non-exempt substitute
refrigerants. EPA considers these provisions to appropriately represent
good faith attempts to recapture and recycle or safely dispose of such
substitute refrigerants. For example, the proper use of certified
recovery equipment and the evacuation of refrigerant to prescribed
standards would be considered a good faith attempt to recapture and
recycle or safely dispose of non-exempt substitute refrigerants when
maintaining, servicing, repairing, or disposing of an appliance.
    Under this approach, releases are only considered de minimis if
they occur when these procedures, or those under subpart B, are
followed. Conversely, emissions that take place during maintenance,
servicing, repair, or disposal when these provisions are not followed
are not de minimis emissions and are subject to the venting
prohibition. While these principles were clearly expressed in the prior
regulations for ODS, the prior regulations did not clearly establish
what practices the regulated community would need to follow in order to
qualify for the de minimis exemption and to comply with the venting
prohibition while maintaining, servicing, repairing, or disposing of
equipment containing non-exempt substitute refrigerants. With the
revisions finalized in this rule, EPA is clarifying how the venting
prohibition and de minimis exemption apply to non-exempt substitute
refrigerants, to increase certainty for and facilitate compliance by
the regulated community, as well as further explaining its
interpretation of these statutory provisions.
    It is impossible to open an appliance (or otherwise violate the
refrigerant circuit) or dispose of an appliance without emitting some
of the refrigerant in the circuit. Even after the appliance has been
evacuated, some refrigerant remains, which is released to the
environment when the appliance is opened or disposed of. Other
activities that fall short of opening or disposing of the appliance but
that involve violation of the refrigerant circuit also release
refrigerant, albeit in very small quantities, because connectors (e.g.,
between hoses or gauges and the appliance) never join together without
intervening space. Even in the best case in which a good seal is made
between a hose and an appliance before the valve between them is
opened, some refrigerant will remain in the space between the valve and
the outer seal after the valve is closed. This refrigerant will be
released when the outer seal is broken. Thus, whenever a person opens
an appliance (or otherwise violates the refrigerant circuit) in the
course of maintaining, servicing, repairing, or disposing that
appliance, he or she could violate the venting prohibition unless the
exception for de minimis releases applies. Because EPA is finalizing
revisions that define the exception for substitute refrigerants such
that it only applies when the person complies with the existing
refrigerant management provisions, compliance with those provisions
will ensure that any releases incidental to these practices will be
considered de minimis and thus will not violate the venting prohibition
under section 608(c)(2).
    One commenter stated that it fails to see why it would be unclear
to the regulated community that the same de minimis exemption
applicable to class I and II substances applies equally to substitutes.
Section 608(c)(1) provides a specific de minimis exemption. Paragraph 1
contains the de minimis language, so that language clearly applies to
the intentional venting/release of substitutes under paragraph 2. In
other words, the de minimis language in section 608(c)(1) is expressly
applicable to section 608(c)(2), and there is no ambiguity that EPA
needs to clarify.
    EPA agrees with the comment that the statute applies the de minimis
exemption to substitute refrigerants. This statutory interpretation
supports the revisions finalized in this rule. The statutory ambiguity
arises because neither section 608(c)(1) or (2) specifically define
what releases would qualify for the de minimis exemption or what would
be considered ``good faith attempts to recapture and recycle or safely
dispose'' of such a substance. The Agency previously established
regulations clarifying what releases would be considered exempt from
the venting prohibition under the de minimis exemption for ODS
refrigerants. For class I and II substances EPA has interpreted those
releases that occur despite compliance with EPA's required practices
for recycling and recovery under the previous Sec.  82.156, use of
recovery and/or recycling equipment certified under Sec.  82.158, and
technician certification programs under Sec.  82.161 as falling within
the de minimis exemption. Because the de minimis language in section
608(c)(1) is directly applicable to section 608(c)(2), it is reasonable
for EPA to choose to use the same regulations to clarify which releases
of non-exempt substitute refrigerants qualify for the de minimis
exception. These regulations accordingly fill a gap in the statute and
the prior regulations relating to the definition of the de minimis
exemption and the phrase ``good faith attempts to recapture and recycle
or safely dispose'' for non-exempt substitute refrigerants.

    Another commenter stated that EPA must distinguish between
provisions interpreting and enforcing the venting prohibition and other
provisions implementing the statutory requirements to ``minimize the
use and emission'' and ``maximize the recapture and recycling'' of
class I and class II substances. In the commenter's view, the leak
repair program is clearly related to the latter requirements. In
addition, to the extent that a regulatory violation such as
recordkeeping does not cause a release, EPA cannot use that as a
violation of the venting prohibition. The comment concludes that all de
minimis releases associated with good faith attempts to recover or
recycle refrigerants are exempt regardless of regulatory compliance.
    EPA disagrees that there is a subset of the provisions finalized in
this action that does not interpret, explain, or enforce the venting
prohibition and is only aimed at minimizing the use and emission or
maximizing the recapture and recycling of refrigerants. Under the prior
regulations with regard to ODS, the regulatory text has long used the
required practices under subpart F, including the leak repair
provisions under the prior Sec.  82.156(i), to clarify which emissions
will qualify for the de minimis exemption and thus not run afoul of the
venting prohibition. The stakeholder community has appeared to accept
this structure, and the interpretation of the venting prohibition it
embodies, as it related to ODS. As described above in more detail, EPA
is extending this regulatory structure which has long interpreted and
enforced the venting prohibition for ODS to do the same for the venting
prohibition as it applies to non-exempt substitute refrigerants. The
fact that these requirements may also be related to minimizing the use
and emission or maximizing the recapture and recycling of ODS
refrigerants does not preclude EPA from using those requirements to
clarify how the venting prohibition applies to non-exempt substitute
refrigerants. Nor does it prevent EPA from choosing to interpret,
explain, and enforce the de minimis exemption for ODS and non-exempt
substitutes through consistent requirements. EPA is extending this
regulatory structure to non-exempt substitutes to clarify its
interpretation of the ambiguous statutory phrase ``de minimis releases
associated with good faith attempts to recover or recycle
refrigerants'' and to enhance certainty that emissions that occur while
complying with the regulations are covered by this exemption. After the
revisions finalized in this rule, releases of non-exempt substitutes
will be considered de minimis only if they occur when the specified
requirements are satisfied.
    In addition, EPA does not agree with the comment's implication that
the leak repair program relates only to minimizing the use and emission
or maximizing the recapture and recycling of refrigerants. For example,
leak repair is a type of servicing and releases of non-exempt
substitutes that occur in the course of repairing leaks as required by
the leak repair program could violate the venting prohibition. As such,
it is reasonable to clarify in the regulations that releases of non-
exempt substitutes that are incidental to repairing leaks as required
by the regulations will not be considered to violate the venting
prohibition. In establishing the recordkeeping requirements in this
rule, EPA is not suggesting that every failure to comply with a
recordkeeping requirement would necessarily result in a violation of
the venting prohibition. But in any event a failure to comply with a
recordkeeping requirement would certainly be a violation of section
114.
    Another commenter stated that there is no basis in the text of the
CAA to assert that the venting prohibition is self-effectuating but
that the de minimis exemption is not. It may be reasonable to interpret
de minimis to mean in compliance with a comprehensive regulatory
program when such a program is already authorized, but EPA cannot
create a comprehensive regulatory program from that term. The commenter
believes that it would be reasonable to interpret de minimis as those
releases that occur when following best practices that occur while
maintaining, servicing, repairing, or disposing of an appliance.
    While the prohibition on venting under section 608(c) is self-
effectuating, meaning the prohibition itself is legally binding even
without implementing regulations, the statutory terms contain
ambiguity. For example, the terms ``de minimis releases'' and ``good
faith attempts to recapture and recycle or safely dispose'' are not
specifically defined in section 608(c)(1) or (c)(2). Accordingly, it is
appropriate for EPA to clarify in its regulations how it interprets and
will apply those terms. As described in greater detail above, EPA is
finalizing revisions to the section 608 regulations to further
interpret and explain the venting prohibition and increase its
enforceability by giving greater clarity and certainty as to which
releases it views as being covered by the de minimis exemption.
Addressing the application of the venting prohibition and the de
minimis exemption through rulemaking provides advance notice to
regulated entities; this is in contrast to case-by-case application,
which would be the approach in the absence of rulemaking.
    Further, even if we agreed with the comment that the term de
minimis does not support development of a comprehensive regulatory
program, EPA is not creating such a program through this rule. Rather,
it is extending a regulatory program that already exists and serves to
interpret and enforce the venting prohibition and de minimis exemption
for ODS and using those same requirements for the same purpose for non-
exempt substitute refrigerants. Although EPA could have chosen a
different method to interpret and enforce the venting prohibition for
non-exempt substitute refrigerants, for reasons described elsewhere in
this rule, EPA is electing to regulate ODS refrigerants and non-exempt
substitute refrigerants consistently.
3. Exempting Certain Substitutes From the Venting Prohibition
    EPA proposed to explicitly state in the regulatory text that the
substitutes exempted from the venting prohibition in Sec.  82.154(a)(1)
are also exempt from the other provisions of subpart F. EPA also
proposed to reorganize the list of exempt substitutes by refrigerant
type for readability. EPA did not propose to revise the listed end-uses
or propose to add or remove any substitutes from the list.
    Multiple commenters supported EPA's proposal to extend the existing
regulations to HFCs and other non-exempt substitutes for the clarity it
would provide to manufacturers and technicians. Other commenters
recommended that EPA treat all refrigerants (including exempt
substitutes like hydrocarbons, ammonia, and carbon dioxide) equally in
all aspects of the subpart F regulations, including recovery and
reclamation, technician certification, leak detection, and
recordkeeping. Consistent application of the regulations to all
refrigerants, the commenters say, would reinforce essential refrigerant
management practices for all systems, reduce leaks, improve safety, and
improve the operating efficiency of equipment. The commenters say that
all refrigerants, other than water and some HFOs, have either
flammability properties, higher GWP properties, or properties hazardous
to human health (toxicity, risk of asphyxiation, frostbite, etc).
Another commenter was opposed to exempting refrigerants that may be
vented from the broader subpart F

requirements (with the possible exception of systems using water,
nitrogen, or carbon dioxide) as it viewed such an exemption as a