ATTACHMENT 1 

EO12866_CAA Part 82A 2060 AQ98 FINAL_FRN_20130305_clean.docx 
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EO12866_CAA Part 82A 2060 AQ98 FINAL_FRN_20130305 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 82 

[EPA-HQ-OAR-2011-0354; FRL-XXXX-X] 

RIN 2060-AQ98 

Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export 

AGENCY: Environmental Protection Agency [EPA]. 

ACTION: Final rule. 

SUMMARY: EPA is adjusting the allowance system controlling U.S. consumption and 

production of hydrochlorofluorocarbons (HCFCs) as a result of a 2010 Court decision vacating a 

portion of the 2009 final rule titled “Protection of Stratospheric Ozone: Adjustments to the 

Allowance System for Controlling HCFC Production, Import, and Export.” EPA interprets the 

Court’s vacatur as applying to the part of the rule that establishes the company-by-company 

baselines and calendar year allowances for HCFC-22 and HCFC-142b. On August 5, 2011, EPA 

published an interim final rule allocating allowances for 2011. Today’s action relieves the 

regulatory ban on production and consumption of these two chemicals following the Court’s 

vacatur by establishing company-by-company HCFC-22 and HCFC-142b baselines and 

allocating production and consumption allowances for 2012-2014. 

DATES: This final rule is effective upon [INSERT DATE OF PUBLICATION]]. 

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQOAR-2011-0354. All documents in the docket are listed on the www.regulations.gov website. 

Although listed in the index, some information is not publicly available, e.g., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 
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material, is not placed on the Internet and will be publicly available only in hard copy form. 

Publicly available docket materials are available either electronically through 

www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, 

EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 

holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the 

telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Luke H. Hall-Jordan by telephone at (202) 

343-9591, or by e-mail at hall-jordan.luke@epa.gov, or by mail at U.S. Environmental 

Protection Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania Ave., NW, 

Washington, DC, 20460. You may also visit the website of EPA’s Stratospheric Protection 

Division at www.epa.gov/ozone/strathome.html for further information about EPA’s 

Stratospheric Ozone Protection regulations, the science of ozone layer depletion, and related 

topics. 

SUPPLEMENTARY INFORMATION: 

Effective Date. This rule concerns Clean Air Act (CAA) restrictions on the consumption 

and production of hydrochlorofluorocarbon (HCFC)-22 and HCFC-142b during 2012-2014. 

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally 

provides that rules may not take effect earlier than 30 days after they are published in the Federal 

Register. EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which 

states: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly 

provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) 

of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies 

underlying APA section 553(d) in making this rule effective [INSERT DATE OF 

PUBLICATION]. APA section 553(d) allows an effective date less than 30 days after 
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publication for any action “that grants or recognizes an exemption or relieves a restriction,” (5 

U.S.C. 553(d)(1)). Since today's action relieves a restriction from the regulatory ban on the 

production and consumption of HCFC-22 and HCFC-142b in the U.S., EPA is making this 

action effective immediately upon publication to ensure the availability of these HCFCs for 

servicing air conditioning and refrigeration equipment. 

Acronyms and Abbreviations. The following acronyms and abbreviations are used in this 

document. 

CAA – Clean Air Act 

CAAA – Clean Air Act Amendments of 1990 

CFC – Chlorofluorocarbon 

CDM – Clean Development Mechanism 

CFR – Code of Federal Regulations 

EPA – Environmental Protection Agency 

FR – Federal Register 

HCFC – Hydrochlorofluorocarbon 

HVAC – Heating, Ventilating, and Air Conditioning 

Montreal Protocol – Montreal Protocol on Substances that Deplete the Ozone Layer 

MOP – Meeting of the Parties 

MT – Metric Ton 

ODP – Ozone Depletion Potential 

ODS – Ozone-Depleting Substances 

Party – States and regional economic integration organizations that have consented to be bound 

by the Montreal Protocol on Substances that Deplete the Ozone Layer

Organization of This Document. The following outline is provided to aid in locating 

information in this preamble. 
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I. Does This Action Apply to Me? 

II. Summary of This Final Action 

III. Background 

A. How Does the Montreal Protocol Phase Out HCFCs? 

B. How Does the Clean Air Act Phase Out HCFCs? 

C. What Sections of the Clean Air Act Apply to This Rulemaking? 

D. How Does This Action Relate to the 2010 Court Decision? 

IV. How Is EPA Allocating HCFC-22 and HCFC-142b Allowances for 2012-2014? 

A. What Baselines Is EPA Using for HCFC-22 and HCFC-142b Allowances? 

1. What Baselines Is EPA Using for 2012-2014? 

2. What Baselines Is EPA Considering for 2015-2019? 

B. What Factors Did EPA Consider in Determining Allocation Amounts for HCFC22 and HCFC-142b? 

1. How Is EPA Adjusting Estimated Servicing Need to Account for Surplus 

Inventory from Past Years? 

2. How Is EPA Adjusting Allowances to Encourage Recovery, Reclamation 

and Reuse? 

3. How Is EPA Accounting for Recovery and Reuse of HCFC-22 in the 

Supermarket Industry? 

4. Did EPA Consider Providing Allowances to Small Businesses in This 

Final Action? 

5. Does the Installation of Dry-shipped HCFC-22 Equipment Affect the 

Phaseout of HCFC-22? 

6. How Is EPA Addressing the Court’s Decision with Regard to 2010 HCFC 

Allowances? 

7. Does EPA Have to Provide the Same Percentage of Baseline for 

Production Allowances as It Does for Consumption Allowances? 

C. How Many HCFC-22 and HCFC-142b Allowances Is EPA Allocating in 2012- 

 2014? 

1. How Many HCFC-22 Consumption Allowances Is EPA Allocating in 

2012-2014? 

2. How Many HCFC-22 Production Allowances Is EPA Allocating in 2012-

2014? 

3. How Many HCFC-142b Consumption and Production Allowances Is EPA 

Allocating in 2012-2014? 

4. How Does the Aggregate Allocation for HCFC-22 and HCFC-142b 

Translate Entity-by-Entity? 

V. How Is EPA Changing the Regulations Governing Transfers of Class II Allowances? 

A. How Is EPA Changing the Regulations Governing Permanent Transfers of Class 

II Allowances? 

B. How Is EPA Changing the Regulations Governing Transfers of Article 5 Class II 

Allowances? 

VI. Statutory and Executive Order Reviews 
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 A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review 

 B. Paperwork Reduction Act 

 C. Regulatory Flexibility Act 

 D. Unfunded Mandates Reform Act 

 E. Executive Order 13132: Federalism 

 F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

 G. Executive Order 13045: Protection of Children from Environmental Health and 

Safety Risks 

 H. Executive Order 13211: Actions Concerning Regulations That Significantly 

Affect Energy Supply, Distribution, or Use 

 I. National Technology Transfer and Advancement Act 

 J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

 K. Congressional Review Act 

I. Does This Action Apply to Me? 

This rule may affect the following categories: 

- Industrial Gas Manufacturing entities (NAICS code 325120), including 

fluorinated hydrocarbon gases manufacturers and reclaimers; 

- Other Chemical and Allied Products Merchant Wholesalers (NAICS code 

422690), including chemical gases and compressed gases merchant 

wholesalers; 

- Air-Conditioning and Warm Air Heating Equipment and Commercial and 

Industrial Refrigeration Equipment Manufacturing entities (NAICS code 

333415), including air-conditioning equipment and commercial and industrial 

refrigeration equipment manufacturers; 

- Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS 

code 423730) , including air-conditioning (condensing unit, compressors) 

merchant wholesalers; 
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- Electrical and Electronic Appliance, Television, and Radio Set Merchant 

Wholesalers (NAICS code 423620), including air-conditioning (room units) 

merchant wholesalers; and 

- Plumbing, Heating, and Air-Conditioning Contractors (NAICS code 238220), 

including central air-conditioning system and commercial refrigeration 

installation; HVAC contractors. 

This list is not intended to be exhaustive, but rather provides a guide for readers regarding 

entities likely to be regulated by this action. This table lists the types of entities that could 

potentially be regulated by this action. Other types of entities not listed in this table could also be 

affected. To determine whether your facility, company, business organization, or other entity is 

regulated by this action, you should carefully examine these regulations. If you have questions 

regarding the applicability of this action to a particular entity, consult the person listed in the 

“FOR FURTHER INFORMATION CONTACT” section. 

II. Summary of This Final Action 

In today’s final rule, EPA is issuing HCFC-22 and HCFC-142b allowances for the years 

2012, 2013 and 2014 in the wake of the U.S. Court of Appeals for the District of Columbia 

Circuit (Court) decision in Arkema v. EPA (618 F.3d 1, D.C. Cir. 2010). As discussed in this

preamble and in the proposed rule (77 FR 237), the Court vacated HCFC-22 and HCFC-142b 

company-by-company baseline and calendar-year allowances for 2012-2014. Baselines and 

calendar-year allowances for these two substances were originally finalized in a December 15, 

2009, rule (“2009 Final Rule,” 74 FR 66412). 

EPA is finalizing HCFC-22 and HCFC-142b baseline allowances that incorporate the 

inter-pollutant transfers made by Arkema, Inc., Solvay Fluorides, LLC, and Solvay Solexis, Inc., 

(Arkema and Solvay) in 2008, and is setting calendar-year allowances for the 2012-2014 control 
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periods. EPA is providing fewer calendar-year HCFC-22 consumption allowances1 and more 

calendar-year HCFC-22 production allowances2 than in the 2009 Final Rule. The agency 

determined that the need for virgin HCFC-22 in the U.S. is lower than EPA anticipated in the 

2009 Final Rule and is adjusting consumption allowances accordingly. EPA anticipates this 

adjustment will foster a smooth transition away from ozone-depleting HCFC-22. While EPA is 

reducing domestic consumption (i.e. production and import for U.S. use), under the recalculated 

baselines, the overall production allowances will increase. Because other countries have different 

approaches to phasing out HCFC-22, EPA considers that this increase in the number of 

production allowances will also ensure that U.S. companies can continue to meet demand for 

HCFCs in global markets. This supports the Montreal Protocol’s overall goal of limiting need for 

new production capacity for controlled chemicals by allowing existing producers scope to better 

meet the needs of global markets. Additionally, EPA has determined that in the narrow 

circumstance of the Court’s vacatur of the baselines in the 2009 Final Rule, it must provide 

meaningful compensation for 2010 calendar-year HCFC-22 and HCFC-142b allowances that 

companies would have received under the adjusted baselines. EPA will issue recoupment 

allowances for that purpose in 2013 and 2014. 

 EPA is also updating HCFC-142b baselines and annual allowances and is allocating 

approximately the same amount of calendar-year consumption allowances as in the 2009 Final 

Rule. Due to the recalculation of HCFC-142b baselines, calendar-year HCFC-142b production 

allowances are higher than in the 2009 Final Rule, but have been calculated using the same 

methodology. Therefore, while the percentage of baseline issued for HCFC-142b is the same for 

both consumption and production allowances, the recalculated production baseline is now 

 

1

 Consumption allowances permit an entity to produce and/or import virgin HCFCs in a given control period (i.e., 

calendar year). 

2

 Production allowances permit an entity to produce virgin HCFCs in a given control period. Domestic production of 

HCFCs requires the use of both production and consumption allowances. 
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significantly larger than the consumption baseline, resulting in an overall increase in calendaryear production allowances compared with the 2009 Final Rule. 

 Finally, EPA is modifying the transfer language at 40 CFR 82.23 to more explicitly 

reflect EPA’s policy on inter-pollutant HCFC allowance transfers; that is, that inter-pollutant 

HCFC transfers can occur only on an annual basis going forward. 

 All other aspects of the 2009 Final Rule not addressed in this rulemaking are unaffected, 

including, but not limited to: HCFC-123, HCFC-124, HCFC-225ca and HCFC-225cb 

allowances, the formula for determining calendar-year Article 5 allowances, and the use and 

introduction into interstate commerce restrictions on HCFC-22 and HCFC-142b. This preamble 

includes a summary of comments EPA received in response to the proposed rule, as well as 

comments to the 2011 Interim Final Rule that are relevant to this current rulemaking. A full 

response to comments document (“Response to Comments”) is available in the docket for this 

rulemaking. 

III. Background 

EPA is undertaking this rulemaking as a result of the decision issued by the Court in 

Arkema v. EPA (618 F.3d 1, D.C. Cir. 2010) regarding the December 15, 2009, final rule titled 

“Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export,” (“2009 Final Rule,” 74 FR 66412). Certain allowance 

holders affected by the 2009 Final Rule filed petitions for judicial review of the rule under 

section 307(b) of the Clean Air Act. Among other arguments, the petitioners contended that the 

rule was impermissibly retroactive because in setting the baselines for the new regulatory period, 

EPA did not take into account certain inter-pollutant baseline transfers that petitioners had 

performed during the prior regulatory period. 

The Court issued a decision on August 27, 2010, agreeing with petitioners that “the 

[2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule,” 
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(Arkema v. EPA, 618 F.3d at 3). The Court vacated the 2009 Final Rule in part, “insofar as it 

operates retroactively,” and remanded it to EPA “for prompt resolution,” (618 F.3d at 10). The 

Court withheld the mandate for the decision pending the disposition of any petition for rehearing. 

EPA’s petition for rehearing was denied on January 21, 2011. The mandate issued on February 4, 

2011. More detail is provided on the case and EPA’s interpretation of the Court’s decision in 

section III.D. of this preamble. 

For 2011, EPA addressed the Court’s partial vacatur in an August 5, 2011, interim final 

rule, “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export,” (“2011 Interim Final Rule,” 76 FR 47451). Today’s 

final rule follows that action, and establishes a path forward for the remainder of the regulatory 

period ending on December 31, 2014. 

A. How Does the Montreal Protocol Phase Out HCFCs? 

The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) 

is the international agreement aimed at reducing and eventually eliminating the production and 

consumption of stratospheric ozone-depleting substances (ODS). The U.S. was one of the 

original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 12, 

1988. Congress then enacted, and President George H.W. Bush signed into law, the Clean Air 

Act Amendments of 1990 (CAAA), which included Title VI on Stratospheric Ozone Protection, 

codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its 

obligations under the Montreal Protocol. Title VI includes restrictions on production, 

consumption, and use of ODS that are subject to acceleration if “the Montreal Protocol is 

modified to include a schedule to control or reduce production, consumption, or use . . . more 

rapidly than the applicable schedule” prescribed by the statute (CAA §606). Both the Montreal 

Protocol and the Clean Air Act (CAA) define consumption as production plus imports minus 

exports. 
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 In 1990, as part of the London Amendment to the Montreal Protocol, the Parties 

identified HCFCs as “transitional substances” to serve as temporary, lower ozone depletion 

potential (ODP) substitutes for CFCs and other ODS. EPA similarly viewed HCFCs as 

“important interim substitutes that will allow for the earliest possible phaseout of CFCs and other 

Class I substances”3

 (58 FR 65026). In 1992, through the Copenhagen Amendment to the 

Montreal Protocol, the Parties created a detailed phaseout schedule for HCFCs beginning with a 

cap on consumption for industrialized countries not operating under Article 5 of the Montreal 

Protocol (non-Article 5 Parties), a schedule to which the U.S. adheres. The consumption cap for 

each non-Article 5 Party was set at 3.1 percent (later tightened to 2.8 percent) of a Party’s CFC 

consumption in 1989, plus a Party’s consumption of HCFCs in 1989 (weighted on an ODP 

basis). Based on this formula, the HCFC consumption cap for the U.S. was 15,240 ODPweighted metric tons (MT), effective January 1, 1996. This became the U.S. consumption 

baseline for HCFCs. 

The 1992 Copenhagen Amendment created a schedule of graduated reductions and 

provided for the eventual phaseout of HCFC consumption (Copenhagen, 23-25 November, 1992, 

Decision IV/4). Prior to a later adjustment in 2007, the schedule initially allowed a non-Article 5 

country to consume 65 percent of its consumption cap in 2004, followed by 35 percent in 2010, 

10 percent in 2015, 0.5 percent in 2020 for the servicing of existing refrigeration and airconditioning equipment, and a total phaseout in 2030. 

The Copenhagen Amendment did not cap HCFC production. In 1999, the Parties created 

a cap on production for non-Article 5 Parties through an amendment to the Montreal Protocol 

agreed by the Eleventh Meeting of the Parties (Beijing, 29 November – 3 December, 1999, 

Decision XI/5). The cap on production was set at the average of: (a) 1989 HCFC production plus 

2.8 percent of 1989 CFC production, and (b) 1989 HCFC consumption plus 2.8 percent of 1989 

 

3

 Class I refers to the controlled substances listed in appendix A to 40 CFR part 82 subpart A. Class II refers to the 

controlled substances listed in appendix B to 40 CFR part 82 subpart A. 
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CFC consumption. Based on this formula, the U.S. HCFC production cap was 15,537 ODPweighted MT, effective January 1, 2004. This became the U.S. production baseline for HCFCs. 

To further protect human health and the environment, the Parties to the Montreal Protocol 

adjusted the Montreal Protocol’s phaseout schedule for HCFCs at the 19th Meeting of the Parties 

in September 2007. In accordance with Article 2(9)(d) of the Montreal Protocol, the adjustment 

to the phaseout schedule was effective on May 14, 2008.4

 As a result of the 2007 Montreal Adjustment (reflected in Decision XIX/6), the U.S. and 

other non-Article 5 countries may only consume 25 percent of their HCFC baseline beginning in 

2010, rather than 35 percent. Other milestones remain the same. The adjustment also resulted in 

a phaseout schedule for HCFC production that parallels the consumption phaseout schedule. All 

production and consumption for non-Article 5 Parties is phased out by 2030. 

 Decision XIX/6 also adjusted the provisions for Parties operating under paragraph 1 of 

Article 5 (developing countries): (1) to set HCFC production and consumption baselines based 

on the average of 2009-2010 production and consumption, respectively; (2) to freeze HCFC 

production and consumption at those baselines in 2013; and (3) to add stepwise reductions to 90 

percent of baseline by 2015, 65 percent by 2020, 32.5 percent by 2025, and 2.5 percent by 2030 

– allowing, between 2030 and 2040, an annual average of no more than 2.5 percent to be 

produced or imported solely for servicing existing air-conditioning and refrigeration equipment. 

All production and consumption for Article 5 Parties will be phased out by 2040. Decision 

XIX/6, included in the Report of the Nineteenth Meeting of the Parties to the Montreal Protocol 

on Substances that Deplete the Ozone Layer, is available in the docket for this rulemaking. 

 

4

 Under Article 2(9)(d) of the Montreal Protocol, an adjustment enters into force six months from the date the 

depositary (the Ozone Secretariat) circulates it to the Parties. The depositary accepts all notifications and documents 

related to the Protocol and examines whether all formal requirements are met. In accordance with the procedure in 

Article 2(9)(d), the depositary communicated the adjustment to all Parties on November 14, 2007. The adjustment 

entered into force and became binding for all Parties on May 14, 2008. 
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 In addition, in the Montreal Adjustments, Parties agreed to adjust Article 2F to allow 

non-Article 5 countries to produce “up to 10 percent of baseline levels” for export to Article 5 

countries “in order to satisfy basic domestic needs” until 2020. Paragraph 14 of Decision XIX/6 

notes that by no later than 2015, the Parties would consider “further reduction of production for 

basic domestic needs” in 2020 and beyond. Under paragraph 13 of Decision XIX/6, the Parties 

will review in 2015 and 2025, respectively, the need for the “servicing tails” for non-Article 5 

and Article 5 countries. The term “servicing tail” refers to an amount of HCFCs needed to 

service existing equipment, such as certain types of air-conditioning and refrigeration appliances. 

B. How Does the Clean Air Act Phase Out HCFCs? 

The U.S. has chosen to implement the Montreal Protocol phaseout schedule on a 

chemical-by-chemical basis. In 1992, environmental and industry groups petitioned EPA to 

implement the required phaseout by eliminating the most ozone-depleting HCFCs first. Based on 

the available data at that time, EPA believed the U.S. could meet, and possibly exceed, the 

required Montreal Protocol reductions through a chemical-by-chemical phaseout that employed a 

“worst-first” approach, which focuses on phasing out certain chemicals with higher ODP earlier 

than others. In 1993, as authorized by section 606 of the CAA, the U.S. established a phaseout 

schedule that eliminated HCFC-141b first and would greatly restrict HCFC-142b and HCFC-22 

next, followed by restrictions on all other HCFCs and ultimately a complete phaseout (58 FR 

15014, March 18, 1993; 58 FR 65018, December 10, 1993). 

 On January 21, 2003, EPA promulgated regulations (“2003 Final Rule,” 68 FR 2820) to 

ensure compliance with the first reduction milestone in the HCFC phaseout: the requirement that 

by January 1, 2004, the U.S. reduce HCFC consumption by 35 percent and freeze HCFC 

production. In the 2003 Final Rule, EPA established chemical-specific consumption and 

production baselines for HCFC-141b, HCFC-22, and HCFC-142b for the initial regulatory 

period ending December 31, 2009. Section 601(2) states that EPA may select “a representative 
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calendar year” to serve as the company baseline for HCFCs. In the 2003 Final Rule, EPA 

concluded that because the entities eligible for allowances had differing production and import 

histories, no single year was representative for all companies. Therefore, EPA assigned an 

individual consumption baseline year to each company by selecting its highest ODP-weighted 

consumption year from among the years 1994 through 1997. EPA assigned individual production 

baseline years in the same manner. EPA also provided for new entrants that began importing 

after the end of 1997 but before April 5, 1999, the date the advanced notice of proposed 

rulemaking was published. EPA took this action to ensure that small businesses that might not 

have been aware of the impending rulemaking would be able to continue in the HCFC market. 

 The 2003 Final Rule apportioned production and consumption baselines to each company 

in amounts equal to the company’s highest “production year” or “consumption year,” as 

described above. It completely phased out the production and import of HCFC-141b by granting 

zero percent of that substance’s baseline for production and consumption in the table at 40 CFR 

82.16. EPA did, however, create a petition process to allow applicants to request small amounts 

of HCFC-141b until 2015. The 2003 Final Rule also granted 100 percent of the baselines for 

production and consumption of HCFC-22 and HCFC-142b for each of the years 2003 through 

2009. EPA was able to allocate allowances for HCFC-22 and HCFC-142b at 100 percent of 

baseline because, in light of the concurrent complete phaseout of HCFC-141b, the allocations for 

HCFC-22 and HCFC-142b, combined with projections for consumption of all other HCFCs, 

remained below the 2004 cap of 65 percent of the U.S. baseline. 

 EPA allocates allowances for specific years; they are valid between January 1 and 

December 31 of a given control period (i.e., calendar year). Prior to December 15, 2009, EPA 

had not allocated any HCFC allowances for 2010 or beyond. The regulations at section 82.15(a) 

and (b) only addressed the production and import of HCFC-22 and HCFC-142b for the years 

2003-2009. Absent the granting of calendar-year allowances, section 82.15 would have 
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prohibited the production and import of HCFC-22 and HCFC-142b after December 31, 2009. 

The 2009 Final Rule allowed for continued production and consumption, at specified amounts, 

of HCFC-142b, HCFC-22, and other HCFCs not previously included in the allowance system, 

for the 2010-2014 control periods. 

 In the U.S., an allowance is the unit of measure that controls production and consumption 

of ODS. EPA establishes company-by-company baselines (also known as “baseline allowances”) 

and allocates calendar-year allowances equal to a percentage of the baseline for specified control 

periods. A calendar-year allowance represents the privilege granted to a company to produce or 

import one kilogram (not ODP-weighted) of the specific substance. EPA allocates two types of 

calendar-year allowances – production allowances and consumption allowances. “Production 

allowance” and “consumption allowance” are defined at section 82.3. To produce an HCFC for 

which allowances have been allocated, an allowance holder must expend both production and 

consumption allowances. To import an HCFC for which allowances have been allocated, an 

allowance holder must expend consumption allowances. An allowance holder exporting HCFCs 

for which it has expended consumption allowances may request a refund of those consumption 

allowances by submitting proper documentation and receiving approval from EPA. 

 Since EPA is implementing the phaseout on a chemical-by-chemical basis, it allocates 

and tracks production and consumption allowances on an absolute kilogram basis for each 

chemical. Upon EPA approval, an allowance holder may transfer calendar-year allowances of 

one type of HCFC for calendar-year allowances of another type of HCFC, with transactions 

weighted according to the ODP of the chemicals involved. Pursuant to section 607 of the CAA, 

EPA applies an offset to each HCFC transfer by deducting 0.1 percent from the transferor’s 

allowance balance. The offset benefits the ozone layer since it “results in greater total reductions 

in the production in each year of . . . class II substances than would occur in that year in the 

absence of such transactions” (42 U.S.C. 7671f). 
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The U.S. remained comfortably below the aggregate HCFC cap through 2009. The 2003 

Final Rule announced that EPA would allocate allowances for 2010-2014 in a subsequent action 

and that those allowances would be lower in aggregate than for 2003-2009, consistent with the 

next stepwise reduction for HCFCs under the Montreal Protocol. EPA stated its intention to 

determine the number of allowances that would be needed for HCFC-22 and HCFC-142b, 

bearing in mind that other HCFCs would also contribute to total HCFC consumption. EPA noted 

that it would likely achieve the 2010 stepwise reduction by applying a percentage reduction to 

the HCFC-22 and HCFC-142b baselines. EPA subsequently reviewed market conditions to 

estimate servicing needs and market adjustments in the use of HCFCs, including HCFCs for 

which EPA did not establish baselines in the 2003 Final Rule. 

In the 2009 Final Rule, EPA estimated the need for HCFC-22 during the 2010-2014 

regulatory period, and determined the percentage of that need for which it was appropriate to 

allocate allowances. As described in section IV.B.3. of the proposed rule (77 FR 237), EPA 

determined that the percentage of the estimated need allocated in the form of allowances should 

not remain constant from year to year but rather should decline on an annual basis. For 2010, 

EPA allocated allowances equal to 80 percent of the estimated need for HCFC-22, concluding 

that reused, recycled, and reclaimed material could meet the remaining 20 percent. Under the 

2009 Final Rule, the percentage of estimated need for which there was no allocation, and 

therefore would need to be met through recycling and reclamation, rose from 20 percent in 2010 

to 29 percent in 2014 to ensure the U.S. market would have a viable reclamation industry and 

could meet the 2015 stepwise reduction under the Montreal Protocol. 

As explained in the Background section, EPA is undertaking this rulemaking as a result 

of the decision issued by the Court in Arkema (618 F.3d 1, D.C. Cir. 2010), in which the Court 

vacated portions of the 2009 Final Rule. 

C. What Sections of the Clean Air Act Apply to This Rulemaking? 
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 Several sections of the CAA apply to this rulemaking. Section 605 of the CAA phases out 

production and consumption and restricts the use of HCFCs in accordance with the schedule set 

forth in that section. As discussed in the 2009 Final Rule (74 FR 66416), section 606 provides 

EPA authority to set a more stringent phaseout schedule than the schedule in section 605 based 

on an EPA determination regarding current scientific information or the availability of 

substitutes, or to conform to any acceleration under the Montreal Protocol. EPA previously set a 

more stringent schedule than the section 605 schedule through a rule published December 10, 

1993 (58 FR 65018). Through the 2009 Final Rule, EPA accelerated the section 605 schedule to 

reflect the acceleration under the Montreal Protocol as agreed to under the Montreal Protocol in 

September 2007. The more stringent schedule established in that rule is unaffected by the 2010 

Court decision and is therefore still in effect. 

Section 606 provides EPA authority to promulgate regulations that establish a schedule 

for production and consumption that is more stringent than what is set forth in section 605 if: 

“(1) based on an assessment of credible current scientific information (including any assessment 

under the Montreal Protocol) regarding harmful effects on the stratospheric ozone layer 

associated with a class I or class II substance, the Administrator determines that such more 

stringent schedule may be necessary to protect human health and the environment against such 

effects, (2) based on the availability of substitutes for listed substances, the Administrator 

determines that such more stringent schedule is practicable, taking into account technological 

achievability, safety, and other relevant factors, or (3) the Montreal Protocol is modified to 

include a schedule to control or reduce production, consumption, or use of any substance more 

rapidly than the applicable schedule under this title.” It is only necessary to meet one of the three 

criteria. In the 2009 Final Rule, EPA determined that all three criteria had been met with respect 

to the schedule for phasing out production and consumption of HCFC-22 and HCFC-142b. 
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As noted in the 2009 Final Rule, while section 606 is sufficient authority for establishing 

a more stringent schedule than the section 605 phaseout schedule, section 614(b) of the CAA 

provides that in the case of a conflict between the CAA and the Montreal Protocol, the more 

stringent provision shall govern. Thus, section 614(b) requires the agency to establish phaseout 

schedules at least as stringent as the schedules contained in the Montreal Protocol. To meet the 

2010 stepdown requirement, EPA is continuing to allocate HCFC allowances at a level that will 

ensure the aggregate HCFC production and consumption will not exceed 25 percent of the U.S. 

baselines. For more discussion of this point, see 74 FR 66416. 

Finally, section 607 addresses transfers of allowances both between companies and 

chemicals. EPA is further clarifying the policy and procedures applicable to inter-pollutant 

transfers in this action, and is making a minor change to the regulations governing inter-pollutant 

transfers to provide additional clarity to stakeholders. 

D. How Does This Action Relate to the 2010 Court Decision?

 Certain allowance holders affected by the 2009 Final Rule filed petitions for review in the 

U.S. Court of Appeals for the District of Columbia Circuit. Among other arguments, the 

petitioners, Arkema, Inc., Solvay Fluorides, LLC, and Solvay Solexis, Inc., contended that the 

rule was impermissibly retroactive because in setting the baselines for the new regulatory period, 

EPA did not take into account certain inter-pollutant baseline transfers that petitioners had 

performed during the prior regulatory period. The 2011 Interim Final Rule contained a 

description of those transfers and the EPA approvals of those transfers. As explained in the 2011 

Interim Final Rule, Solvay Solexis, Inc. submitted two Class II Controlled Substance Transfer 

Forms for consumption allowance transfers to Solvay Fluorides, LLC on February 15, 2008, and 

March 4, 2008. Arkema, Inc. submitted two Class II Controlled Substance Transfer Forms for 

consumption and production allowance transfers on April 18, 2008. Each company requested 

EPA’s approval to convert HCFC-142b allowances to HCFC-22 allowances, and checked a box 
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on the EPA transfer form indicating that “baseline” allowances would be transferred. EPA sent 

non-objection notices to Solvay Solexis, Inc. and Solvay Fluorides, LLC on February 21, 2008, 

and March 20, 2008, and to Arkema, Inc. in April 2008. The transfer requests and EPA’s nonobjection notices were attached to petitioners’ court filings and are available in the docket for 

this action. 

 In the Notice of Proposed Rulemaking titled “Protection of Stratospheric Ozone: 

Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” 

published in the Federal Register at 73 FR 78680 on December 23, 2008 (2008 Proposed Rule), 

EPA requested comments on establishing baselines for the 2010-2014 regulatory period “with or 

without” taking into account baseline inter-pollutant transfers made during the 2003-2009 

regulatory period (73 FR 78687). The proposed regulatory text accounted for the inter-pollutant 

transfers discussed above. The increase in HCFC-22 baseline allowances for Arkema, Inc. and 

Solvay Fluorides, LLC presented in the 2008 Proposed Rule resulted in a larger amount of 

HCFC-22 baseline allowances overall and therefore a lower percentage of HCFC-22 baselines 

allocated across the board in each control period. Specifically, the proposed shift resulted in a 16 

percent decrease in allocation share for all other HCFC-22 allowance holders, and increases for 

the petitioners: Arkema and Solvay. 

In the 2009 Final Rule, after considering comments, EPA determined that allowing interpollutant transfers from one regulatory period to become a part of the baseline in the next 

regulatory period could undermine the agency’s chemical-by-chemical phaseout approach and 

encourage market manipulation. EPA also concluded that section 607 of the CAA was best read 

as limiting inter-pollutant transfers to those conducted on an annual basis. For these reasons, 

EPA did not take the 2008 inter-pollutant transfers into account in establishing the baselines for 

the 2009 Final Rule covering 2010-2014. 
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The Court issued a decision on August 27, 2010, agreeing with petitioners that “the 

[2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule” 

(Arkema v. EPA, 618 F.3d at 3). The Court vacated the rule in part, “insofar as it operates 

retroactively,” and remanded to EPA “for prompt resolution,” (618 F.3d at 10). The Court 

withheld the mandate for the decision pending the disposition of any petition for rehearing. On 

November 12, 2010, EPA filed a petition for rehearing, which was denied on January 21, 2011. 

The mandate issued on February 4, 2011. 

EPA presented its interpretation of the Court’s decision with regard to baseline 

allowances and 2011-2014 calendar-year allowances in the 2011 Interim Final Rule (76 FR 

47456). EPA has not changed that interpretation but is repeating it here for ease of reference. 

Because the Court vacated the rule only in part, and because various parts of the rule are 

intertwined, EPA relied on its expertise in administering the HCFC phaseout regulations under 

Title VI of the CAA to determine how to apply the vacatur within the confines of the balance of 

the rule, which was not vacated. First, EPA noted that the rule contains elements that were not at 

issue in the litigation. EPA concluded that the vacatur had no effect on allowances for any 

substances other than HCFC-142b and HCFC-22, since the petitioners’ claims and the opinion 

itself discuss only those two substances. Similarly, EPA concluded that other discrete portions of 

the rule, such as the provisions on use and introduction into interstate commerce, were 

unaffected by the vacatur. 

The baselines for HCFC-142b and HCFC-22 were clearly at issue in the litigation and 

indeed are the focus of the Court’s opinion. The Court found that “the agency’s refusal to 

account for the Petitioners’ baseline transfers of inter-pollutant allowances in the Final Rule is 

impermissibly retroactive,” (618 F.3d at 9). Because baseline and calendar-year allowances are 
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inextricably linked,5 EPA determined that the Court’s vacatur voided the HCFC-22 and HCFC142b baselines in 40 CFR 82.17 and 82.19 as well as the percentage of baseline allocated for 

those specific substances in 40 CFR 82.16 for all companies listed in those sections.6 This meant 

that in the absence of this rule, production and import of these two substances were prohibited 

under 40 CFR 82.15. Recognizing this scenario, EPA sent letters in January 2012 and January 

2013 to affected stakeholders informing them that the agency would exercise enforcement 

discretion for a limited period provided their production and import did not exceed specified 

levels and provided that they adhered to additional conditions. 

In determining the meaning of the Court’s vacatur, EPA considered whether this 

interpretation was consistent with what the Court intended and a good fit for the specific 

circumstances, which include the goals and design of the HCFC allowance program and the 

basic structure of the 2009 Final Rule. While this interpretation is appropriate in this instance, it 

is possible that another interpretation would be more appropriate in a case involving a program 

with different goals, design, or structure. 

EPA’s initial response to the Court’s partial vacatur was to issue the 2011 Interim Final 

Rule (76 FR 47451). That rule allocated allowances for 2011 only. Through today’s notice, EPA 

is addressing the Court’s decision as it relates to the remainder of the regulatory period ending 

December 31, 2014. 

IV. How Is EPA Allocating HCFC-22 and HCFC-142b Allowances for 2012-2014? 

EPA is continuing the system established in previous rulemakings (68 FR 2820, 74 FR 

66412, 76 FR 47451) for HCFC production and import in the U.S. The process works as follows 

for each HCFC: First, all the company-specific baselines listed in the tables at 40 CFR 82.17 and 

 

5

 Baseline and calendar-year allocations are inextricable because calendar-year allocations are expressed as a 

percentage of baseline, and the percentage of baseline allocated for a specific substance varies depending on the sum 

of all company baselines for that substance. The process is described in greater detail in section IV. 

6

 The companies’ allocations are inter-related because, as noted in footnote 5, the percentage of baseline allocated 

varies according to the sum of the company-specific baselines. 
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82.19 are added to determine the aggregate amount of baseline production and consumption, 

respectively. Second, EPA determines how many consumption allowances the market needs for a 

given year, taking into account sources other than new production and import, and then divides 

that amount by the aggregate amount of baseline allowances. The resulting percentage is listed in 

the table at section 82.16 and becomes what each company is allowed to consume in a given 

control period. For example, a company with 100,000 kg of HCFC-22 baseline consumption 

allowances would multiply that number by the percentage allowed for the year (for example, 

17.7 percent in 2012) to determine its calendar-year consumption allowance is 17,700 kg. 

In this rulemaking EPA is (1) establishing 2012-2014 company-by-company 

consumption and production baselines for HCFC-22 and HCFC-142b in the tables at 40 CFR 

82.17 and 82.19 identical to the baselines established in the 2011 Interim Final Rule (76 FR 

47468); (2) allocating company-by-company production and consumption allowances for these 

substances for 2012-2014 by establishing allowed percentages of production and consumption 

baselines in two tables at section 82.16; and (3) revising the regulatory text at 40 CFR 82.23 to 

make the procedure for all future inter-pollutant transfers clear. EPA will address the baselines 

and allocations for the control periods beyond 2014 at a later date. All aspects of the 2009 Final 

Rule promulgated on December 15, 2009, (74 FR 66412) that are not addressed in this final rule 

are unchanged. 

EPA again notes that beginning January 1, 2015, section 605 of the CAA prohibits the 

use and introduction into interstate commerce of any HCFC listed as a class II substance unless it 

“(1) has been used, recovered and recycled; (2) is used and entirely consumed (except for trace 

quantities) in the production of other chemicals; (3) is used as a refrigerant in appliances 

manufactured prior to January 1, 2020; or (4) is listed as acceptable for use as a fire suppression 

agent for nonresidential applications in accordance with section 612(c).” In addition, EPA’s 
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regulations at 40 CFR 82.15 restricted use and introduction into interstate commerce of HCFC141b, HCFC-142b, and HCFC-22 beginning in 2010, with limited exceptions. 

A. What Baselines Is EPA Using for HCFC-22 and HCFC-142b Allowances? 

 In the January 4, 2012, notice, EPA proposed to establish 2012-2014 company-bycompany consumption and production baselines for HCFC-22 and HCFC-142b that were 

identical to the baselines established in the 2011 Interim Final Rule (see 40 CFR 82.17 and 

82.19). EPA also provided advance notice that it would consider updating baselines for the 2015-

2019 regulatory period, especially if there is an environmental benefit to doing so. 

1. What Baselines Is EPA Using for 2012-2014? 

 Four companies commented on how EPA should proceed with establishing baselines for 

2012-2014. Arkema and Solvay both support EPA’s inclusion of past inter-pollutant transfers of 

baseline allowances, and believe that the proposed baselines are fully consistent with the Arkema 

decision. On the other hand, DuPont and Honeywell state that Arkema does not require EPA to 

recognize the inter-pollutant baseline transfers beyond 2009, nor does it address the validity of 

the 2008 transfers. These commenters also state that recognizing these transfers beyond 2009 is 

contrary to section 607, EPA’s transfer regulations, and the agency’s interpretation of those 

regulations for chemicals that are being phased down. In addition, they assert that if EPA does 

take those transfers into account in establishing baselines for 2012-2014, the agency should only 

allocate the percentage of the transferred baselines that would be allocated if the baselines had 

never been converted from HCFC-142b to HCFC-22. They state that recognizing the transfers 

has the effect of increasing the baseline share of the petitioners in Arkema and reducing the share 

of other companies in violation of their due process rights. Finally, they state that under the 

Arkema decision, their share of the baseline is vested. 

 EPA cited several reasons why it would prefer to set baselines without taking into 

account inter-pollutant transfers in the 2009 Final Rule (74 FR 66420), in the Response to 
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Comments document included in the record for that rulemaking and in the 2011 Interim Final 

Rule (76 FR 47451). These considerations remain important, and are the basis for EPA’s policy 

on future inter-pollutant transfers, which is discussed in section V of this notice. However, EPA 

must act in accordance with the Court’s holding regarding the 2008 transfers. In Arkema, the 

Court concluded that EPA’s non-objection notices for the 2008 transfers created “vested rights” 

in the transferred baselines, which EPA must reflect in rules governing the current regulatory 

period, at least to the extent such rules continue to use the historical production and consumption 

baselines. The Court explicitly held that “the Agency’s refusal to account for the Petitioners’ 

baseline transfers of interpollutant allowances in the Final Rule is impermissibly retroactive,” 

(Arkema, 618 F.3d at 24). Given the Arkema decision, and given the recent decision in 

Honeywell International, Inc. v. EPA, D.C. Cir. No. 10-1347 (January 22, 2013) (“Honeywell”), 

EPA is recognizing the 2008 transfers in establishing the baselines through 2014. Thus, the 

baselines finalized for 2012-2014 in today’s rule are identical to the HCFC-22 and HCFC-142b 

baselines established in the 2011 Interim Final Rule. 

The commenters assert that the Arkema decision did not determine the validity of the 

transfers. They further assert that EPA lacked authority to approve permanent inter-pollutant 

baseline transfers, that the 2008 transfers as characterized by the Court are thus invalid, and that 

EPA should not recognize them in setting baselines. The validity of the 2008 transfer approvals 

was challenged in Honeywell. The brief filed by the agency on January 30, 2012, provides 

further response to several of the arguments that Honeywell and DuPont make in their comments 

on the proposed rule and is included in the docket for this rulemaking. 

The commenters do not assert that EPA lacked authority to approve inter-pollutant 

transfers whose effects were limited to the regulatory period ending in 2009. Rather, they assert 

that EPA lacked authority to approve inter-pollutant transfers with effects lasting beyond 2009. 

They state that Arkema did not determine the validity of such transfers. Yet the Arkema Court 
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found contrary to the Agency’s position, that EPA had “approved permanent changes to the 

baseline as a result of inter-pollutant transfers” and that the Agency could not “undo these 

completed transactions,” (Arkema, 618 F.3d at 23). It is not plausible that the Court would have 

reached this holding if it viewed EPA’s authority to approve inter-pollutant transfers with effects 

beyond the immediate regulatory period as open to debate. As the Court stated in Honeywell, 

“the Arkema Court necessarily concluded that permanent inter-pollutant transfers were 

permissible under the statute” (slip op. at 7). The Honeywell Court noted that it was bound by 

Arkema and denied commenters’ petition for review of the 2008 transfers. The Honeywell

decision is available in the docket for this action. 

Contrary to the commenters’ assertions, section 607 of the CAA is ambiguous with 

regard to whether inter-pollutant transfers may have permanent effects that carry forward to 

subsequent regulatory periods. EPA has discretion under section 607 to determine how to treat 

such transfers. While EPA did not intend its non-objection notices to confer permanence to the 

2008 inter-pollutant transfers, EPA disagrees with commenters’ implication that under section 

607, the agency could not have done so. That would be true only if section 607 expressly 

prohibited permanent inter-pollutant transfers, which it does not. As discussed in more detail in 

section V.A. of this preamble, for policy reasons EPA will approve only annual inter-pollutant 

transfers in the future. EPA also believes that while section 607 is not clear on its face, it is best

interpreted as precluding permanent inter-pollutant transfers, as explained in section V.A. of this 

preamble. As noted by the Court in Arkema, interpreting section 607 to preclude permanent 

inter-pollutant transfers “may more accurately track the statutory mandate,” (Arkema, 618 F.3d 

at 22). 

 Commenters assert that EPA has departed from its own regulations in proposing to 

recognize the 2008 inter-pollutant transfers in the baselines for 2012-2014. Commenters ignore, 

however, the Court’s interpretation of those regulations. EPA’s intent in the 2003 Rule, which 
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established the transfer provisions, was to preclude permanent inter-pollutant transfers of 

baseline allowances (see 68 FR 2835). EPA notes that until the rulemaking that resulted in the 

2009 Final Rule, the agency did not specifically develop a policy on whether inter-pollutant 

transfers could ever carry forward to a new regulatory period following one of the intermediate 

phasedown steps. Nonetheless, the Arkema decision found that the agency’s conclusion in the

2009 Final Rule not to carry inter-pollutant transfers forward to a new regulatory period 

“departed from the policy it had adopted in the 2003 Rule,” (Arkema, 618 F.3d at 6). EPA cannot 

disregard the Court’s holding on the ground that the 2003 Rule prohibited permanent interpollutant transfers where the Court has found otherwise. 

 The commenters are also incorrect that EPA previously interpreted its regulations as 

creating a “phasedown follows the allowance” principle. Commenters assert that under this 

principle, EPA should only allocate the percentage of the transferred baselines allocated for 

HCFC-142b. However, EPA has never adopted such a principle. Preamble statements leading up 

to and accompanying the 2003 Rule refer to the elimination of HCFC-141b baseline upon the 

chemical’s complete phaseout, “regardless of what inter-pollutant transfers had taken place,” (68 

FR 2835). That is a different matter from a partial phasedown, like the phasedown of HCFC-22 

and HCFC-142b in 2010. Additionally, the commenters’ approach runs counter to the way EPA 

allocates allowances as described in section IV of this preamble. 

Finally, the commenters assert that EPA has violated their due process rights by 

decreasing their market share, which they argue is a vested right under Arkema. From a 

substantive perspective, what they assert is a vested right (i.e., a specific share of allowances) is 

not in fact a vested right, nor is it protected under the due process clause. The Court held that 

EPA’s actions in approving the 2008 transfers created vested rights in the transferred baselines. 

The Court placed particular emphasis on the fact that the Agency took affirmative actions that 

appeared to ratify the transfers: “The Agency’s approval and acknowledgement of Petitioners’ 
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actions distinguishes this case from situations where a company’s unilateral business 

expectations are thwarted by a change in the regulatory framework,” (Arkema, 618 F.3d at 20). 

The Court did not examine the issue of whether companies possessed vested rights in baseline or 

calendar-year allowances generally, or in a specific share of allowances. Nor did the Court hold 

that the transferred baselines, baseline allowances generally, or calendar-year allowances, are 

property rights protected under the Due Process Clause. Furthermore, it did not state that 

companies had any right to a specific number of production or consumption allowances. On the 

contrary, the Court noted that “the 2010 stepdown gave the EPA occasion to adjust its 

distribution of allowances,” (Arkema, 618 F.3d at 25). 

EPA’s regulatory definitions specify that production and consumption allowances are 

privileges, not rights (see 40 CFR 82.3). As discussed in Section II, the U.S. is in the process of 

phasing out production and consumption of HCFCs, culminating in a complete phaseout in 2030. 

EPA’s regulations prohibit production and consumption of HCFCs without allowances (40 CFR 

82.16(a), (b)). In the absence of this final rule, no allowances would exist for 2012 or beyond. In 

this regulatory environment, no company has an entitlement to a specific number or share of 

HCFC allowances. 

In addition, under this final rule, commenters are receiving the same number of baseline 

allowances they received under previous HCFC allocation rules. Recognition of the 2008 

transfers in the aggregate HCFC-22 consumption baseline does not require EPA to extract 

baseline allowances from other companies. 

From a procedural perspective, commenters were given multiple opportunities to 

comment on or challenge the effects of the 2008 transfers at issue in Arkema on baselines for the 

current regulatory period. As noted in Honeywell, they had “notice and an opportunity to present 

[their] views during EPA’s pre-Arkema regulatory proceedings, during the Arkema litigation, and 

during EPA’s subsequent post-Arkema proceedings” (slip op. at 7). They commented on the 
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2009 Final Rule, the 2011 Interim Final Rule and the proposal for this final rule. They also had 

the opportunity to intervene in the Arkema lawsuit and the opportunity to challenge the 2011 

Interim Final Rule, in which EPA actually reflected the 2008 transfers in establishing baselines. 

A more detailed summary of the comments on this issue, as well as the Agency’s response to 

issues not addressed in the preamble or the briefs, is included in the Response to Comments, 

found in the docket for this rulemaking. 

2. What Baselines Is EPA Considering for 2015-2019? 

Looking ahead to the next regulatory period, the agency received four comments on 

whether it should use more recent production and import data in establishing baselines for 2015-

2019. Two commenters recommend using data from 2005-2007 because these years were used to 

establish baselines in the 2009 Final Rule for newly-controlled HCFCs (74 FR 66412). In 

addition, using the highest production and import levels from 2005-2007 would reflect current 

and stable market conditions. One commenter points out that production and consumption in 

2008 and 2009 were likely affected by the economic downturn, while 2010 and 2011 fall under 

the stepdown established by the 2009 Final Rule. Another commenter believes that updating 

baselines would avoid rewarding companies for attempting to manipulate their baselines by 

converting allowances from HCFCs with lower future market value (i.e., HCFC-142b) to HCFC 

allowances they knew would retain value in the next regulatory period (i.e., HCFC-22). 

Two other commenters do not support revised baselines. One of the commenters believes 

that the current allocation method is the fairest method because it is transparent and well 

understood by all market participants. The other commenter sees no benefit to updating 

baselines, but says future reductions in allocations will benefit the environment by promoting 

reclamation. 

 Since EPA did not propose to establish baselines for 2015-2019, the agency will continue 

to assess the merits of using a more recent set of years to establish baselines in a later 
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rulemaking. The agency is still receptive to the idea of updating baselines in 2015, but notes that 

it did not receive any evidence that there is an environmental benefit to doing so. 

B. What Factors Did EPA Consider in Determining Allocation Amounts for HCFC-22 and 

HCFC-142b? 

In the 2009 Final Rule, EPA decided to allocate HCFC-22 and HCFC-142b allowances 

based on the projected servicing needs for those substances, taking into account the portion of 

need that can be met through recycling and reclamation. EPA is not changing that general 

approach, and continues to believe it is necessary in order to promote the use of used, recycled, 

and reclaimed material in anticipation of the 2015 phasedown step. In accordance with the 

Court’s decision in Arkema, the agency proposed, and is now finalizing, baselines that reflect 

2008 inter-pollutant baseline transfers. This approach necessitates issuing a different percentage 

of company baselines in order for the aggregate number of calendar-year HCFC-22 consumption 

allowances to be less than or equal to the 2009 Final Rule. In fact, EPA proposed to allocate 

significantly fewer consumption allowances for HCFC-22 relative to the 2009 Final Rule based 

on an analysis of updated market conditions. 

Specifically, the agency considered to what extent servicing need can be met by (1) 

significant inventories of existing HCFC-22, (2) increased reclamation capacity, and (3) re-use of 

HCFC-22 within supermarkets. See “Analysis of HCFC-22 Servicing Needs in the U.S. Air 

Conditioning and Refrigeration Sector: Additional Considerations for Estimating Virgin 

Demand” (Adjustment Memo), included in the docket to this rulemaking. In the Adjustment 

Memo, EPA considers a higher and a lower HCFC-22 allocation scenario for each year. In the 

larger allocation scenario: (1) surplus inventory from past years (hereinafter called “existing 

inventory”) meets 6,000 MT of estimated need each year; (2) recovery and reclamation meet 

12,500 MT of need, the same amount as in the 2009 Final Rule; and (3) 20 percent of total need 

in the large retail food sector is met by in-house recovery and reuse. In the smaller allocation 
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scenario: (1) existing inventory also meets 6,000 MT of estimated need each year; (2) recovery 

and reclamation meet 19,700 MT of estimated servicing need; and (3) 70 percent of total need in 

the large retail food sector is met by in-house recovery and reuse. 

As shown in Table 4 of the Adjustment Memo, the agency proposed to issue HCFC-22 

consumption allowances as follows: (1) between 25,100 and 36,200 MT in 2012 (a decrease of 

11 to 38 percent relative to the 2009 Final Rule); (2) between 20,800 and 31,400 MT in 2013 (a 

decrease of 13 to 42 percent); and (3) between 16,400 and 26,300 MT in 2014 (a decrease of 15 

to 47 percent). These proposed amounts correspond to allocations of 17.7 to 25.5 percent of 

baseline in 2012, 14.7 to 22.1 percent in 2013, and 11.6 to 18.5 percent in 2014. The agency took 

comment on its analysis of market conditions, which specifically looked at existing inventory, 

reclamation capacity, and HCFC-22 reuse in the supermarket industry. EPA also asked for 

comment on potential difficulties faced by small businesses and on whether or not the 

installation of dry-shipped HCFC-22 condensing units affects the phaseout. 

 Between the 2011 Interim Final Rule and the proposed rule, the agency received a total 

of 50 comments (some with multiple signatories) on the market conditions (see section 2 of the 

Response to Comments) considered in allocating HCFC-22 and HCFC-142b allowances. As 

discussed in the proposed rule, the need for HCFC-22 to service existing equipment is the 

primary factor affecting EPA’s overall allocation of production and consumption allowances for 

the current regulatory period. Thus, the Adjustment Memo only discusses HCFC-22 and most 

comments, as well as the agency’s response, focus primarily on HCFC-22. 

Additionally, EPA received 13 comments, four from the Interim Final Rule and nine 

from the proposed rule, on whether or not to provide more HCFC-22 and/or HCFC-142b 

consumption and/or production allowances as compensation for lost opportunities during 2010 

(“recoupment”). Lastly, the agency proposed to allocate different annual percentages of baseline 

for consumption than for production (“decoupling”). Without decoupling the baselines, the 
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percentage of baseline allocated for production would be the same as that for consumption for a 

given HCFC. Nine comments specifically addressed decoupling of baseline percentages. 

1. How Is EPA Adjusting Estimated Servicing Need to Account for Surplus Inventory 

from Past Years? 

 The agency proposed to account for existing inventory of HCFC-22 produced in previous 

years by making downward adjustments to the consumption allocation of 6,000 MT each year. 

EPA’s analysis indicated the amount of existing inventory was between 22,700 MT and 45,400 

MT. Including relevant comments received on the 2011 Interim Final Rule, EPA received eight 

comments on its assessment of existing inventory of HCFC-22. Seven comments state there are 

significant volumes of HCFC-22 in existing inventory and that accounting for this inventory is 

essential for supporting recovery and reclamation. One of those commenters indicates the 6,000 

MT proposed annual adjustment and the 45,400 MT stockpile estimate should be considered a 

minimum, not maximum amount. Another also supports EPA’s consideration of existing 

inventory, and believes the estimates used in the proposed rule may be too low based on their 

own inventory and their own estimates of industry-wide inventory. 

 All comments on EPA’s analysis, including confidential comments, indicate EPA’s 

estimate of existing inventory is reasonable and that an annual adjustment to the estimated 

servicing need of 6,000 MT is supportable. EPA considered a wide range of existing inventory 

(between 22,700 MT and 45,500 MT), but comments support the proposed 6,000 MT adjustment 

regardless of the total stock of existing inventory. Based on the information provided, the agency 

does not believe the annual adjustment or the estimate of existing inventory should be increased. 

Overestimating the amount in inventory could limit the ability of consumers to service their 

equipment, resulting in systems being prematurely decommissioned. EPA provides a full 

summary of comments and agency responses in the Response to Comments, but notes here that 

all commenters who addressed the proposed 6,000 MT adjustment specifically were in support of 
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an adjustment at least that large. EPA is finalizing the consumption allocation with the proposed 

adjustment for existing inventory. 

2. How Is EPA Adjusting Allowances to Encourage Recovery, Reclamation and Reuse? 

 In the 2009 Final Rule, the agency recognized that servicing needs can be met with a 

combination of newly-manufactured or imported HCFCs (virgin HCFCs) and HCFCs that have 

been recovered and either reused, recycled, or reclaimed. The 2009 Servicing Tail Report 

analyzed various reclamation scenarios, and after several rounds of industry feedback, the 

agency decided to issue allowances 12,500 MT below estimated need in 2010-2014. For 2010, 

12,500 MT was 20 percent of the estimated need. EPA continues to believe that reused, recycled, 

and reclaimed material can help meet HCFC-22 servicing needs. The agency published new 

projections of reclaim capabilities in the Adjustment Memo, and took comment on those 

projections via this rulemaking. 

 Out of the 15 comments EPA received on reclaim capabilities, 14 comments (some 

signed by multiple organizations) supported EPA’s analysis that the reclamation industry has the 

capacity to reclaim more than 19,700 MT per year. One comment stated that the infrastructure to 

effectively and efficiently recover, recycle, redistribute, and reuse HCFC-22 likely will take 

several years to develop. In addition, one company agreed that the industry has the capacity to 

meet reclaim needs, but disagreed with the base assumption that this activity will automatically 

take place. 

 In the Adjustment Memo, EPA considered annual reclamation levels of 12,500 MT and 

19,700 MT. Several organizations state that the 19,700 MT figure should be a minimum, rather 

than a maximum, because established companies that reclaim refrigerants have the technical 

capacity to recover 19,700 MT or more in 2012 alone and could easily expand capacity to meet 

additional need. One company comments that reclamation companies will be able to expand to 

cover the need that will ultimately be driven by higher prices and a decrease in supply. However, 
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companies will not expand until there is a need. Another company also states that it could easily 

triple its current capacity, and believes the same is true for many reclamation companies. Many 

companies support an allowance reduction to encourage an increase in reclamation capacity and 

volume. These commenters, including 20 EPA-certified reclaimers that submitted a single 

comment, all believe that the capacity exists to handle increased reclamation volumes. 

 Several commenters believe sufficient recovery and reclamation capacity exists, but that 

the supply chain of used refrigerant from equipment-in-use to reclamation facilities is 

fragmented and complex. The concern is not whether capacity exists, or whether reclaimers 

could quickly expand capacity, but whether material is actually being recovered and brought to 

reclaimers. A group of recovery companies believes that existing reclaimers have the capacity to 

process more than enough HCFC-22 to meet the industry needs, but are not convinced that given 

the present situation, there will be enough refrigerant recovered to meet the raw material needs of 

the reclaimers. However, a group of recovery companies that focuses exclusively in recovering 

used refrigerant from retiring equipment does believe reducing allowances will change the 

incentives for recovery. Finally, one company believes that EPA’s estimate of the potential for 

recovery and reuse is too optimistic during 2012-2014, particularly because residential air 

conditioners use only small quantities of the gas. 

EPA’s assessment that the reclamation industry has the capacity to reclaim 19,700 MT of 

HCFC-22 per year, as presented in the Adjustment Memo, is supported by most of the comments 

received. The amount of used refrigerant that can be recovered from retiring equipment is 

sufficient to allow for the reclamation of 19,700 MT per year, based on expected recovery rates 

used in the Vintaging Model7

. Included in the docket for this rulemaking is a new supporting 

 

7

 The Vintaging Model is the primary tool that EPA uses to estimate projected HCFC consumption. The Vintaging 

Model estimates the annual chemical emissions from industry sectors that have historically used ODS, including air 

conditioning, refrigeration, foams, solvents, aerosols, and fire protection. Within these industry sectors, there are 

over fifty independently-modeled end uses. The model uses information on the market size and growth for each of 

the end uses, as well as a history and projections of the market transition from ODS to alternatives. As ODS are 
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memo titled “Recovered HCFC-22 Available to Meet Servicing Needs” (Recovery Memo). In 

this memo EPA shows the amount of HCFC-22 that can be recovered from HCFC-22 equipment 

that reaches its end of life under two scenarios. In the first scenario, EPA uses the end-of-life 

assumptions in the Vintaging Model to determine how much HCFC-22 is recovered from retiring 

equipment. The Vintaging Model uses a 35 percent recovery rate in retiring residential air 

conditioning systems. The Recovery Memo details all the recovery assumptions used, which are 

nearly identical to those used in the 2009 Servicing Tail Report. These numbers are similar to 

those presented in table 4-5, “Scenario 50: 50% Recovery Rate,” which was also presented in the 

2009 Servicing Tail Report. In the second scenario, EPA assumes all HCFC-22 is recovered at 

the end-of-life. The intent of this memo is to show that it is technically feasible to recover and 

reclaim 19,700 MT of HCFC-22 per year between 2012-2014, even when only 35 percent of the 

HCFC-22 is recovered from residential air conditioning systems—the largest use for HCFC-22. 

However, EPA agrees with some commenters that the amount of refrigerant that is 

available to be recovered does not necessarily equal the amount that is recovered in practice, and 

that it will take time for recovery practices to change. The agency recognizes that assuming 

19,700 MT of annual servicing need can be met by recovered and reclaimed material—instead of 

12,500 MT—does not mean that amount will actually be reclaimed each year. EPA’s adjustment 

to encourage recovery and reclamation could also encourage transition to HCFC-22 alternatives 

and more recovery and reuse of HCFC-22 in systems that require a large refrigerant charge. 

Although both of these outcomes are difficult to measure and predict, EPA expects that these 

outcomes will sufficiently deal with any gap between the adjustment in allocation and realized 

 

phased out, a percentage of the market share originally filled by the ODS is allocated to each of its substitutes. The 

model tracks emissions of annual “vintages” of new equipment that enter into operation by incorporating 

information on estimates of the quantity of equipment or products sold, serviced, and retired or converted each year, 

and the quantity of the compound required to manufacture, charge, and/or maintain the equipment. EPA’s Vintaging 

Model uses this market information to build an annual inventory of in-use stocks of equipment and the ODS 

refrigerant and non-ODS substitutes in each of the end uses. This information is used to project the servicing needs 

of ODS-containing equipment. Additional information on the Vintaging Model is available in the 2009 Servicing 

Tail Report, which can be found in the docket for this rulemaking. 
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reclamation levels. EPA adopted the same general approach in the 2009 Final Rule (using 12,500 

MT instead of 19,700 MT) to foster recovery and reclamation. In addition, EPA has received 

anecdotal information from stakeholders that reclaimers are already offering increased incentives 

to return recovered refrigerant and that this will continue as long as there is an economic 

incentive to do so. As the supply of virgin refrigerant shrinks, the incentive to recover and 

reclaim used refrigerant will likely increase. EPA provides a full summary of comments and 

agency response in the Response to Comments. 

EPA does not believe any of the concerns raised should preclude the agency from 

increasing the adjustment for reclamation from 12,500 MT to 19,700 MT to foster reclamation, 

especially in light of the 2015 Montreal Protocol cap and the 2020 phaseout of HCFC-22 

production and import. EPA believes increased recovery and reclamation is necessary to ensure a 

smooth transition between now and 2020 and is increasing the difference (relative to the 2009 

Final Rule) between estimated servicing need and the allocation for virgin production and 

import. The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC22 recovery and reclamation. 

3. How Is EPA Accounting for Recovery and Reuse of HCFC-22 in the Supermarket 

Industry? 

In the proposed rule, EPA considered adjusting the allocation for virgin HCFC-22 

production and import to account for current recovery and reuse practices in the supermarket 

industry. Specifically, the agency estimated that between 20 percent and 70 percent of annual 

servicing need in the large retail food sector could be met by HCFC-22 recovered and reused inhouse. In addition to the analysis conducted to develop the Adjustment Memo, EPA considered 

late comments that addressed recovery and reuse of HCFC-22 in supermarkets. The comments, 

combined with EPA’s findings presented in the Adjustment Memo, indicate that supermarkets 

deal with recovered refrigerant in a variety of ways. Some appear to meet 10-20 percent of their 
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annual servicing need with material they recovered from internal existing prior uses. Others have 

the material reclaimed and do not reuse or bank any of the material. A third group meets 80 to 

100 percent of their annual need with reused material. 

EPA received an additional comment on reuse by large end users, but not specifically 

supermarkets. The commenter notes that large users retiring equipment can efficiently and 

effectively capture the majority of refrigerant from commercial refrigeration and air conditioning 

units. These users can recover refrigerant for future servicing of other equipment they own. 

These users do not require reclamation technology or equipment, and can recover and reuse 

significant volumes of refrigerant. Such recovery and reuse should continue to be considered as a 

source of HCFC-22 service refrigerant.

EPA agrees that large end users, including supermarkets and other large commercial 

applications, can be a source for recovered HCFC-22. However, the agency only received 

information on how six companies reuse refrigerant in-house, and their reuse percentages are 

very different. Since the agency does not have sufficient data on in-house reuse, EPA is not 

accounting for supermarket reuse as its own category. However, the agency’s Vintaging Model 

has reasonable estimates for actual recoverable material for various sectors, and EPA is using 

those modeled recovery rates for supermarkets to help support overall recovery and reuse 

estimates in this rule (see the Recovery Memo for specifics on modeled recovery rates). 

4. Did EPA Consider Providing Allowances to Small Businesses in This Final Action? 

In response to the 2011 Interim Final Rule, one small business informed EPA that it 

could not acquire either HCFC allowances or the HCFCs it needs to manufacture its HCFC blend 

(see the letters from ICOR dated May 17, 2011 and September 6, 2011, available in the docket 

for this action). To remedy this situation, the commenter requested that EPA provide unused 

allowances to companies that purchased either HCFCs or HCFC consumption allowances in 

2008 and 2009. In the proposed rule, EPA noted that the inability to acquire allowances and/or 
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HCFCs themselves does not appear to be a widespread problem, as numerous companies have 

made a significant number of transfers over the last year alone, and no other company has 

commented that it cannot acquire HCFCs. However, EPA took comment on whether other 

companies were having difficulty acquiring HCFCs or HCFC allowances. In the proposed rule, 

the agency also provided some historical background on how EPA provided flexibility for small 

businesses when establishing the HCFC allocation system. 

EPA received four comments on providing allowances to manufactures of HCFC blends, 

all of which were in opposition. Two companies point to the flexibility for companies without 

baselines to obtain HCFCs or HCFC allowances by purchasing them from others. Another 

commenter notes that EPA provided for new entrants when it established the allocation system in 

2003. 

Since EPA did not receive any additional comments in support of providing HCFC 

allowances to manufacturers of HCFC blends, and because the agency has previously stated its 

belief that the current allocation system provides significant flexibility for new entrants (as 

documented in the revised Flexibility Memo), EPA is not providing allowances for new entrants 

at this time. 

EPA also sought comment on the concept of providing HCFC-22 allowances to 

reclaimers, but expressed reservations. EPA received eight comments on this topic: four in 

opposition and four in support. Comments in opposition state that providing allowances to 

reclaimers could encourage blending of refrigerant, instead of reclaiming refrigerant. They also 

cite administrative hurdles in establishing allowances for reclaimers and their skepticism that 

reclaimers would actually use the allowances to reclaim more material. All three commenters 

state that the proposed reduction in allowed production and import will encourage recovery and 

reclamation (without providing allowances). 
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One comment in support encouraged EPA to provide allowances to reclaimers as a 

reward for reclamation activities. The commenter also stated that manufacturers create a difficult 

working environment for reclaimers, claiming, for example: 

• The manufacturers exert pressure on wholesalers and contractors not to return 

their used refrigerants to a reclaimer, using their supply of virgin refrigerants as 

leverage. 

• The manufacturers have asked cylinder manufacturers not to sell pre-labeled DOT 

39 cylinders for their blends to reclaimers. 

• The manufacturers or their agents will buy an account back by offering a higher 

price for the used refrigerants than justified. 

The commenter argues that the desire of manufacturers to promote their own best self-interest 

results in a difficult environment for a refrigerant reclaimer to prosper. 

 EPA continues to have serious concerns about providing allowances to reclaimers that 

did not historically produce or import HCFC-22 and have not already acquired HCFC-22 

allowances. As stated in the proposed rule, the agency’s primary concern is that providing 

allowances for reclaimers could foster unsustainable reclamation practices that rely on blending, 

instead of investment in the technology to fully reclaim HCFCs. Reclamation through separation 

and distillation will be more important in 2015 when the HCFC-22 allocation must drop by at 

least 45 percent from 2010 levels, and it will be absolutely necessary by 2020, at which time 

production and import of HCFC-22 must be phased out entirely. In addition, many businesses 

have either found a way to secure reliable access to virgin HCFCs or have made investments to 

reclaim HCFCs in a sustainable way, without a direct allocation of allowances. 

EPA continues to believe that allocating fewer allowances—rather than providing 

allowances to reclaimers—is the best way to foster reclamation and recovery. In this final rule, 

EPA is taking significant steps to encourage recovery and reclamation by providing fewer 
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HCFC-22 consumption allowances. Fewer allowances for new production and import increases 

the value of existing HCFCs, which in turn increases the incentives for recovery and reclamation. 

While the agency appreciates the concerns raised by reclaimers about the difficulties they 

encounter in the refrigerant reclamation business, these barriers have not stopped companies 

from becoming EPA-certified reclaimers—currently there are more than 50. Given the 

considerations above, the agency is not providing allowances to reclaimers at this time. 

5. Does the Installation of Dry-shipped HCFC-22 Equipment Affect the Phaseout of 

HCFC-22? 

In the proposed rule, EPA took comment on whether allowing repairs using HCFC-22 

dry-shipped condensing units affects the phaseout of HCFC-22. Eight commenters believe the 

repairs of existing equipment that involve installation of dry-shipped HCFC-22 condensing units 

is affecting the phaseout and/or should be stopped. They claim that continued installation of dryshipped condensing units effectively allows the manufacture of otherwise banned HCFC-22 airconditioning systems, increasing demand for HCFC-22 and undercutting the market for 

alternative refrigerants. One company does not believe dry-shipped condensing unit repairs can 

be properly addressed through a reduction in HCFC-22 allocation levels. Cost associated with 

the HCFC-22 refrigerant needed for the re-charging of the HCFC-22 system is quite small (<5% 

of the total servicing cost), so even a significant inflation of the cost of HCFC-22 will still have a

minimal impact on the end-user’s decision. Two commenters ask EPA to ban repairs using 

HCFC-22 dry-shipped condensing units, one explicitly asking for this action in lieu of further 

reducing HCFC-22 production. Another commenter is concerned about the negative effects of 

dry-shipped condensing units on equipment efficiency.

One joint comment from several environmental groups indicated that the market for dryshipped HCFC-22 units is expanding rapidly; however, no data were provided. The commenters 

express concern that because newly-produced HCFC-22 is so cheap, service technicians are 
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venting HCFC-22 from broken units, installing dry-shipped units in their place, and then 

charging the unit with virgin HCFC-22. 

EPA received seven comments saying installation of dry-shipped condensing units does 

not significantly affect the phaseout and/or that dry-shipped HCFC-22 condensing unit repairs 

should not be banned. These commenters believe dry-shipped condensing units are providing 

consumers a legal, affordable repair option, and thus not actually increasing demand for HCFC22 or displacing the sale of new systems. They contend that the primary application of the 

uncharged HCFC-22 replacement condensing units is as a service option to major compressor 

and coil failures. While two of the equipment manufacturers who do not support a ban on dryshipped unit repairs also do not support reduced allocations of HCFC-22, another equipment 

manufacturer believes that addressing the availability of the refrigerant is the appropriate driver 

for phasing out virgin HCFC-22, and that the installation of dry-shipped HCFC-22 condensing 

units does not have a negative effect on the phaseout. Another commenter suggests that if EPA 

has verifiable evidence that the servicing or repair of HCFC-22 appliances is resulting in 

increased emissions of the refrigerant, then EPA should consider extending the leak repair 

requirements to all appliances, not just appliances with a refrigerant charge greater than 50 lbs. 

 Five additional comments discuss HCFC-22 condensing units in more general terms. One 

organization suggests that EPA consider that most dry-shipped condensing units are being sold 

and installed with multi-year warranties, which may require a revision to EPA’s servicing tail 

analyses if HCFC-22 replacement refrigerants are not approved by the compressor and 

equipment manufacturers for warranty servicing beyond 2015. Two other commenters state that 

the installation of HCFC-22 condensing units affects the need for HCFC-22. One commenter 

states that contractors prefer selling new R-410a systems instead of repairing older systems, 

since it is much more profitable, but that American consumers are struggling to pay bills. One 

commenter states that further reductions in consumption allowances might discourage 
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installation and field charging of new condensing units with HCFC-22. The commenter also 

states that continued installation of such units will only increase the challenge of meeting the 

2015 stepdown and in turn increase emissions of HCFC-22 to the atmosphere. 

The issue of whether repairs involving the installation of dry-shipped HCFC-22 

condensing units “affects the phaseout” can be broken into several questions. First, do repairs 

involving installation of dry-shipped HCFC-22 condensing units increase demand for HCFC-22? 

Second, do such repairs slow transition from HCFC-22 equipment to equipment using non-ODS 

alternatives? And finally, does this practice affect EPA’s ability to stop the production and 

importation of virgin HCFC-22 by January 1, 2020? 

Based on comments, there is no industry consensus on each of these questions. Specific 

responses to each comment are included in the Response to Comments found in the docket for 

this rulemaking. However, given the paucity of concrete quantifiable information on this subject 

currently available to the Agency, EPA is not ready to determine whether the installation of dryshipped HCFC-22 condensing units will affect EPA’s ability to phase out HCFC-22 by 2020. 

The limited data received to date suggest that it will not. EPA did not propose to ban dry-shipped 

condensing units in the proposal and is not taking such action in this final rule. For purposes of 

future rulemakings, EPA is still interested in quantifiable information on the number of dryshipped condensing units being shipped, whether they are being used as a repair in lieu of a 

compressor or motor replacement, and whether and to what extent condensing unit replacements 

extend the life of an existing system. EPA will continue to evaluate the issue as it develops future 

regulations. 

 6. How Is EPA Addressing the Court’s Decision with Regard to 2010 HCFC Allowances? 

 As noted in the proposed rule, EPA interprets the Arkema decision as applying, at a 

minimum, to the baseline and calendar-year allowances for 2011-2014. The agency took 

comment on whether to interpret the decision as applying to the 2010 allocation, and if so, how 
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allowances in future control periods might be adjusted to reflect this. EPA also took comment on 

(1) whether it should provide recoupment allowances for HCFC-22 and HCFC-142b, or just 

HCFC-22 allowances, and (2) whether it should provide recoupment for production and 

consumption, or just consumption allowances. In this final action, EPA concludes that it has an 

obligation to consider 2010 allowances in responding to the Court’s remand and that recoupment 

for both HCFC-22 and HCFC-142b production and consumption allowances is an appropriate 

response to the Court’s holding that the agency committed legal error in deciding not to carry the 

2008 transfers forward when it established the baselines for the current regulatory period. 

 EPA received 13 comments in opposition to recoupment. Four comments specifically 

state that it is too late to address 2010 allowances, since the Court’s mandate did not issue until 

2011, and allowances are only good for the calendar year in which they are issued. Two 

comments assert that providing recoupment allowances would allow for banking or transferring 

of allowances to later years, which is at odds with the CAA and EPA regulations. Most of these 

comments point out that some allowances conferred in 2010 actually went unused in that year, 

and that EPA’s current proposal to reduce allowances in 2012-2014 is further rationale for not 

providing additional allowances to compensate for any perceived lost opportunity in 2010. They 

point to EPA’s statement in the proposal that not providing recoupment would have advantages 

for the environment, public health, and the goal of encouraging reclamation. They assert that 

there was an oversupply of HCFC-22 allowances in 2010, that Arkema and Solvay were not 

harmed in 2010, and that recoupment allowances would constitute a windfall. They refer to the 

Court’s denial of Arkema’s and Solvay’s motions for a stay of the 2009 Final Rule as evidence 

that these companies were not harmed. One commenter also asserts that if Arkema and Solvay 

believe they are entitled to compensation, they must file a claim for compensation under the 

Tucker Act, 28 U.S.C. 1491. Finally, four comments cite that providing recoupment distorts 
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market share, in contradiction to past EPA policy and the Arkema decision as it relates to vested 

rights. 

On the other hand, the two companies that would benefit most from recoupment, Solvay 

and Arkema, state that EPA should provide recoupment and that the agency must do so in order 

to comply with the Court’s decision in Arkema. Solvay states that EPA deprived it of its rightful 

allowances by failing to recognize its permanent inter-pollutant trades in the 2009 Final Rule and 

that recoupment is necessary to remedy that error. Arkema asserts that its losses were significant 

because of its inability to compete effectively in the after-market, stockpile material for sale in 

later years, and sell other refrigerants to one-stop shoppers. 

The primary rationale the commenters present in favor of providing recoupment is that 

when an agency “...commits legal error, the proper remedy is one that puts the parties in the 

position they would have been in had errors not been made,” (AT&T Corp. v. FCC, 448 F.3d 

426, 433 (D.C. Cir. 2006) (quoting Exxon Co. v. FERC, 182 F.3d 30, 48 (D.C. Cir. 1999)). The 

Court has further held that the proper remedy to an error is “to put the victim of the agency ‘error 

in the economic position it would have occupied but for the error,’” (Ethyl Corp. v. Browner, 67 

F.3d 941, 945 (D.C. Cir. 1995) (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 206-07 

(D.C. Cir. 1984)). 

Arkema contends that providing recoupment for losses would not require improper 

retroactive action. It states that because there is a strong equitable presumption in favor of 

retroactivity that would make the injured party whole, EPA can make a correction that goes back 

to the time the agency error occurred (Exxon Co. v. FERC, 182 F.3d 30, 48 (D.C. Cir. 1999)). In 

addition, the commenter argues that in this circumstance EPA may go beyond its otherwise 

applicable statutory authority. The commenter states that each agency has “general discretionary 

authority to correct its legal errors,” which extends to imposing retroactive changes, even when 
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the statute does not expressly and affirmatively authorize the agency to do so in the first instance 

(Natural Gas Clearinghouse v. FERC, 965 F.2d 1066, 1073 (D.C. Cir. 1992)). 

As expressed in the proposed rule, EPA’s preferred approach to the 2010 allocation was 

not to provide recoupment. However, EPA reviewed comments and considered the policy and 

legal aspects of providing or not providing recoupment. In particular, EPA considered the 

following questions: (1) does EPA have the obligation to address 2010 allowances in light of the 

Court’s decision in Arkema, and (2) does EPA have the ability to provide some form of 

compensation that would remedy the retroactive aspects of the 2009 Final Rule with respect to 

2010? EPA believes that the answer to both questions is “yes.” 

First, EPA believes it has an obligation to address 2010 allowances in light of the Court’s 

decision in Arkema, to the extent feasible given the design and structure of this program. The 

Court stated that the 2009 Final Rule was, in part, “impermissibly retroactive” because “it 

attempted to undo the Petitioners’ inter-pollutant baseline transfers” based on what the Court saw 

as a “new interpretation of section 607” of the Clean Air Act. The Court vacated the rule “insofar 

as it operates retroactively” and remanded the case “for prompt resolution,” (Arkema, 618 F.3d. 

at 25). EPA believes that on remand, it must put allowance holders in the position they would 

have occupied had the agency reflected the Petitioners’ inter-pollutant baseline transfers in the 

2009 Final Rule (AT&T v. FCC, 448 F.3d 426 (D.C. Cir. 2006); Exxon Co. v. FERC, 182 F.3d 30 

(D.C. Cir. 1999)). As noted in the proposal, it is appropriate for EPA to consider the 2010 

allocation on remand whether or not the Court’s decision had the effect of vacating the 2010 

allowances. The Court clearly held that the baselines used in the 2009 Final Rule were invalid, 

and the 2010 allocation relied on those baselines. 

Second, EPA believes it is feasible to provide compensation for lost 2010 allowances in 

the form of recoupment allowances, even though the 2010 period has ended and all 2010 

allowances have expired. As explained in the proposed rule, EPA allocates HCFC production 
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and consumption allowances for specific calendar years: They are valid for that year only. Such 

allowances cannot be banked or borrowed. Therefore, EPA cannot provide meaningful 

compensation by issuing additional 2010 allowances since they would be void upon issuance. In 

the narrow circumstance of responding to the Court’s decision, however, EPA finds it 

appropriate to issue a corresponding number of allowances in later years to make up for the 2010 

allowances that companies would have received if EPA had reflected the Petitioners’ interpollutant baseline transfers in the 2009 Final Rule. These recoupment allowances are designed to 

compensate for lost opportunities to produce or import HCFCs during 2010 for sale in either 

2010 or a later year. 

In responding to concerns that this is effectively allowing for banking or a transfer of 

allowances from 2010 to a later year, EPA disagrees. While EPA does not allow banking of 

allowances beyond the control period in which they are issued, nothing in the regulations bans 

companies from producing or importing HCFCs with allowances and then storing the material 

over time. Companies receiving recoupment were deprived of their ability to import and/or 

produce HCFCs in 2010 at a level consistent with the Court’s decision in Arkema. Had they 

received the requisite level of allowances in 2010, they could have expended them during 2010 

to produce or import HCFCs and banked those HCFCs until at least the years covered by this 

rulemaking. EPA also disagrees with one commenter’s characterization of recoupment as an 

effective transfer of 2010 allowances to later years. Contrary to the commenter’s assertion, EPA 

did not adopt this characterization in the proposal, but instead simply pointed out that the 

regulations do not allow banking or borrowing of allowances. The commenter quotes section 

607(a), which states that EPA regulations must ensure that transfers “will result in greater total 

reductions in the production in each year of . . . class II substances than would occur in that year 

in the absence of such transactions.” The commenter asserts that if recoupment is provided, the 

aggregate allowance total will be higher than it would have been if no recoupment were 
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provided. However, EPA disagrees that section 607(a), which is titled “Transfers,” has any 

application to this situation. Section 607(a) refers specifically to “transactions under the authority

of this section.” An EPA rulemaking providing allowances is not such a transaction. The 

transactions in question are the “transfers” and “trades” within or between companies explicitly 

discussed in section 607. EPA has implemented section 607(a) by requiring an offset for all 

intra-company and inter-company transfers. See, e.g., 40 CFR 82.23(a)(i)(G). 

 Additionally, commenters assert that providing recoupment allowances would mean 

taking allowances away from others or distorting market share. One commenter said that 

providing recoupment is in violation of the Arkema decision, asserting that a company’s 

allowances, or its share of allowances, are a vested right. EPA disagrees with this comment on 

both factual and legal grounds. First, as a result of the Arkema Court’s partial vacatur of the 2009 

Final Rule, there are currently no production or consumption allowances for HCFC-22 in 2012-

2014. This final rule is filling a gap, rather than reshuffling existing allowances or existing 

market share. Second, even in the context of today’s allocation, EPA is not allocating fewer 

allowances to one company for the purpose of allocating more to a different company. EPA is 

allocating a fixed percentage of baseline to each baseline holder at a level that in the aggregate is 

expected to meet servicing demand, taking into account the amount of such demand that can be 

met through other sources. EPA is then allocating recoupment allowances to certain companies 

on top of that fixed percentage allocation. Regarding market share, the allocation of recoupment 

allowances is limited to two years; thus, as a practical matter, it is unlikely to cause a permanent 

shift in market share. In addition, market share is not a simple reflection of EPA’s allocation of 

allowances: for example, some companies buy or sell allowances and thus increase or decrease 

the volume of their business in a particular HCFC or HCFCs generally. 

 Furthermore, EPA takes issue with the commenter’s characterization of the Arkema 

decision. In Arkema, the Court held that the petitioners had a vested right in transferred baselines 
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where EPA had taken affirmative steps to approve the transfers by issuing non-objection notices. 

The commenter attempts to broaden the decision to state that allowance holders have vested 

rights in any and all allowances issued under the stratospheric ozone program, and in addition, to 

a specific market share or value attached to those allowances. EPA disagrees with this broad 

reading and believes the Court’s ruling is closely tied to its factual findings concerning the 2008 

transfers. This issue is discussed further at section IV.A.1. 

 Two commenters state that there was a significant oversupply of HCFC allowances in 

2010, that the petitioners in Arkema were not harmed by the 2010 allocation in the 2009 Final 

Rule, and that they would receive a windfall if EPA were to provide recoupment allowances. 

However, the fact that not all HCFC allowances were used in 2010 does not mean that particular 

companies were not harmed. Companies’ individual situations and business plans may differ. 

Also, although the commenter cites the Court’s denial of the motions to stay the 2009 Final Rule 

as evidence that petitioners were not harmed in 2010, harm to the moving party is only one of the 

criteria considered by a court in reviewing a stay motion. Thus, it is erroneous to assume that the 

Court’s denial equates to a ruling that petitioners suffered no harm. 

 Several commenters stated that providing recoupment allowances would harm human 

health or the environment; however, this action as a whole protects human health and the 

environment by allocating significantly fewer allowances in 2012-2014 than the agency allocated 

in the 2009 Final Rule. Viewed in relation to that rule, EPA is reducing the total number of 

HCFC-22 consumption allowances (after providing for recoupment) by more than 31,100 MT 

over those three years. As a result, providing recoupment does not increase the allowed amount 

of HCFC-22 production and importation for U.S. use relative to the 2009 Final Rule. Even with 

recoupment, total U.S. consumption will be at least 55 percent below the Montreal Protocol 

consumption cap. This overall decrease in consumption also increases the incentives for recovery 

and reclamation. In addition, as noted in the proposal, the amount of recoupment being granted 
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(329 ODP-weighted MT of allowed HCFC consumption and 280 ODP-weighted MT of allowed 

HCFC production) is smaller than the number of allowances that were not used by allowance 

holders in 2010 (approximately 425 ODP-weighted MT of HCFC consumption allowances and 

approximately 930 ODP-weighted MT of HCFC production allowances). EPA’s response to 

additional comments on whether to provide recoupment can be found in the Response to 

Comments. 

 The agency presented four possible options with regard to recoupment for 2010: (1) 

providing recoupment allowances in 2013 in addition to (i.e., on top of) the aggregate level of 

production and consumption; (2) allocating recoupment allowances over two years (2013-2014) 

in addition to (i.e., on top of) the aggregate level of production and consumption; (3) allocating 

recoupment allowances from the aggregate level of production and consumption over two years 

(2013-2014); and (4) not issuing recoupment allowances. Five comments specifically support 

one or more of these options. One comment supports option 1, two comments support option 3, 

and two comments support option 4. Two additional comments do not directly support an option, 

but raise concerns with options 1 and 2. 

 EPA stated in the proposed rule that if it decided to issue recoupment, it would prefer 

option 1. However, after reviewing comment and considering the options further, the agency 

believes option 2 is the best approach for ensuring a smoother path towards 2015, when U.S. 

consumption and production of all HCFCs must be at or below 10% of baseline under the 

Montreal Protocol. In addition, it does not reduce the number of allowances available to 

companies not receiving recoupment. Also, in light of EPA’s decision to reduce the overall 

HCFC-22 allocation significantly in relation to the 2009 Final Rule, EPA can adopt option 2 

while still issuing fewer consumption allowances in 2013 and 2014 than it did under the 2009 

Final Rule. 
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 Option 1 could flood the market in 2013, providing significantly more allowances in that 

one year than in either 2012 or 2014, creating an even more significant drop-off in the number of 

allowances between 2013 and 2014. EPA also has serious concerns about option 3. Commenters 

in support of option 3 state that companies were “on notice” that 2010 allowances were in 

dispute before the Court, so EPA should reduce allowances for companies not receiving 

recoupment to make Arkema and Solvay whole. However, the court rejected petitioners’ stay 

motion and stayed its own mandate, with the result that companies were operating under the 

2009 Final Rule for all of 2010. Thus, companies that produced or imported HCFCs during 2010 

using consumption and production allowances received under the 2009 Final Rule were acting in 

accordance with the regulations in effect at that time. 

 Commenters in support of option 3 also claim that since refrigerant customers prefer to 

purchase all refrigerants from one supplier, and they could not provide sufficient quantities of 

HCFC-22 to some of their customers, the 2009 Final Rule resulted in a loss of sales of other 

refrigerants during 2010. EPA strongly believes that if a company loses its ability to sell to onestop shoppers when it loses allowances, the inverse should also be true: Providing additional 

allowances in 2013 and 2014 equal to the amounts lost in 2010 should provide approximately the 

same ability to compete for sales to one-stop shoppers as was lost in 2010. 

 Only two comments addressed whether EPA should provide recoupment for both HCFC22 and HCFC-142b, or just HCFC-22. One commenter supported providing recoupment for both 

substances, as it ensures traceability and consistency. The other commenter believes EPA should 

provide recoupment for HCFC-142b based on a total allowance pool of 118 metric tons (the 

amount allocated for 2010 in the 2009 Final Rule), instead of using a total allowance pool of 463 

MT (the amount that results from the revised baselines, which are the same as the baselines 

proposed in 2008). According to the commenter, this means that the agency need only provide 

69.8 metric tons of HCFC-142b production allowances in recoupment. 
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 EPA does not agree with the commenter that it should scale HCFC-142b recoupment 

production allowances to match the exact amount allocated in 2010. The agency is providing 

recoupment production allowances based on what it proposed in 2008 (73 FR 78680). In 2008, 

the percent of baseline was the same for both consumption and production. EPA is therefore 

using the baseline amount and percentage proposed in 2008 to calculate recoupment for HCFC142b production. The HCFC-142b production baseline is much larger than the consumption 

baseline (when accounting for the 2008 transfers), so the resulting 2010 allocation would have 

been much larger, while the consumption allocation would have been approximately the same 

under either baseline scenario. Issuing recoupment based on the 2008 proposal results in 

approximately 397 MT of additional HCFC-142b production allowances. Since manufacturing 

HCFC-142b in the U.S. for domestic use requires production and consumption allowances, the 

agency anticipates that the only potential increase in HCFC-142b production as a result of 

recoupment would be for export. 

 One commenter encouraged EPA to account for a company’s unused allowances from 

2010 if EPA is providing that company with recoupment allowances. To do this, EPA would 

need to divulge information about how each company uses its allowances: such companyspecific information has never been disclosed in the HCFC phaseout program, and EPA would 

need to consider claims of confidentiality before taking such a step. Also, EPA does not believe 

it is necessary to account for a company’s unused allowances because the agency is providing 

allowances to make up for the lost opportunity to produce or import HCFCs, not the specific 

usage or lack thereof. As a result, EPA is not adjusting for a company’s unused allowances in 

2010. 

 To effectuate option 2, the agency is issuing half of the recoupment allowances for each 

company in 2013 and the other half in 2014 and is amending the regulatory text at 40 CFR 

82.16(a) accordingly. Recoupment allowances allocated for 2013 and 2014 will function in the 
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same way as other calendar year allowances: They can be used only in the calendar year for 

which they are issued and will expire at the end of that calendar year. The agency believes the 

issuance of these recoupment allowances discharges its obligation to consider the 2010 control 

period in responding to the remand in Arkema. Table 1 lists the companies receiving recoupment,

the substance, and the total number of recoupment allowances: 

Table 1 – Final Recoupment Allowances 

Company Chemical Consumption (kg) Production (kg)

Arkema HCFC-22 4,749,692 4,611,848

DuPont HCFC-142b 2,339 0

Honeywell HCFC-142b 58,291 107,097

Solvay Fluorides HCFC-22 1,157,895 0

Solvay Solexis HCFC-142b 0 289,800

 A full summary and response to all other comments are included in the Response to 

Comments. 

 7. Does EPA Have to Provide the Same Percentage of Baseline for Production 

Allowances as It Does for Consumption Allowances? 

In considering how to allocate HCFC-22 production allowances for 2012-2014, the 

agency proposed to decouple production and consumption baseline percentages. Historically, 

there has only been one table at 40 CFR 82.16, which lists the percentage of baseline (both 

production and consumption) that every baseline allowance holder is issued each year. EPA 

proposed to create two tables, and to allocate a different percentage of baseline for production 

than for consumption. Decoupling would allow the agency to reduce consumption allowances in 

relation to the 2009 Final Rule without having to make the same reductions to production 

allowances. EPA stated its interpretation that section 605(c) of the CAA does not preclude EPA 
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from decoupling baseline percentages and requested comment on this issue. EPA received two 

comments specifically addressing whether the statute precludes decoupling. 

Section 605(c) states that EPA must “promulgate regulations phasing out the 

production...of class II substances in accordance with [section 605],” subject to any acceleration 

under section 606. It further states that EPA must “promulgate regulations to insure that the 

consumption of class II substances in the United States is phased out and terminated in 

accordance with the same schedule (emphasis added)...as is applicable to the phase-out and 

termination of production of class II substances under [Title VI].” Because the phrase “same 

schedule” is not clear on its face, the agency considered three possible interpretations of the 

phrase “same schedule,” as explained in the proposal and in the 2011 Interim Final Rule. The 

agency stated that interpreting “same schedule” as referring to the phaseout schedule that appears 

in section 605, as accelerated under section 606, would be most consistent with the statutory 

language and purpose. Examples of milestones in the phaseout schedule are the 2010 and 2015 

phasedown steps. The agency clarified that it was not proposing to allow production in an 

amount that would be inconsistent with those phasedown steps, but simply proposing to allow a 

greater amount of production than consumption, with both amounts below the Montreal Protocol 

and CAA caps. The one company that provided comment on this matter agreed with the agency, 

and said that it does not believe that production and consumption allowances are somehow tied 

to the same regulatory schedule (requiring the same number of allowances or percentages of 

baseline for production and consumption). Rather, the commenter states that production and 

consumption are tied to the same statutory and treaty schedule, and that the agency should 

provide for increased production. 

The other comment on decoupling was from a group of environmental organizations, 

who supported a decrease in production allowances relative to the 2009 Final Rule. They believe 

that the language in section 605(c) equates the quantity of consumption and production 
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allowances and cannot be interpreted to allow more production than consumption in a given 

year. 

EPA disagrees that the language in 605(c) equates the quantity of consumption and 

production allowances. EPA has never allocated the same quantity of production and 

consumption allowances, only the same percentage of baseline. The agency would have to 

provide different percentages of baseline for calendar-year consumption and production 

allowances to keep the allowance quantities the same since the number of aggregate baseline 

production allowances is not equal to the number of aggregate baseline consumption allowances. 

Additionally, EPA does not believe there is a single “natural reading” of section 605(c), as the 

comment suggests. Rather, the language is ambiguous. As explained in the proposed rule, there 

are at least three possible interpretations. EPA’s interpretation that the word “schedule” in 

section 605(c) refers to the schedule that appears in section 605, as accelerated under section 

606, is reasonable. In section 606, Congress used the word “schedule” to refer to a morestringent schedule than the schedule set forth in section 605: “The Administrator shall 

promulgate regulations . . . which establish a schedule for phasing out the production and 

consumption of . . . class II substances . . . that is more stringent than set forth in section 7671d 

[section 605].” The original section 605 schedule limited production and consumption to 

baseline quantities in 2015 and required a complete phaseout (with some exceptions) in 2030. It 

is logical that Congress would have intended the more-stringent schedule established under 

section 606 to have a similar structure: That is, to cap or eliminate production and consumption 

on certain milestone dates. EPA in fact established just this type of schedule at 40 CFR 82. 

16(b)-(g). EPA has discretion in managing the allowance system to achieve this schedule. 

Therefore, the agency believes it can issue calendar-year consumption and production 

allowances using different percentages of baseline, as long as it complies with the overall 

schedule set by Congress, as accelerated under section 606. 
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Discussion of EPA’s policy decision to decouple baseline percentages is found in section 

IV.C.2. 

C. How Many HCFC-22 and HCFC-142b Allowances Is EPA Allocating in 2012-2014? 

 The agency is revising the tables in 40 CFR 82 that together specify the production and 

consumption allowances available during specified control periods. The tables at sections 82.17 

and 82.19 apportion baseline production allowances and baseline consumption allowances, 

respectively, to individual companies for specific HCFCs during a particular regulatory period. 

Complementing these tables, the table at section 82.16 lists the percentage of baseline allocated 

to allowance holders for specific control periods. In this rulemaking, EPA is (1) retaining this 

framework of complementary tables, (2) establishing baselines for 2012-2014 identical to those 

established in the 2011 Interim Final Rule (76 FR 47451), (3) granting allowances based on 

percentages of baselines in a manner that achieves the 2010 phaseout step and lays the 

groundwork for the next phaseout step in 2015, and (4) providing recoupment allowances. 

 In the 2009 Final Rule, 34.1 percent, 30.1 percent, and 26.1 percent of each company’s 

HCFC-22 baselines were allocated for 2012, 2013, and 2014, respectively. The allocation for 

HCFC-142b was 0.47 percent of baseline. As discussed in section III.D. of this final rule, EPA 

interpreted the Court’s vacatur as applying to the HCFC-22 and HCFC-142b allocations for each 

of these years as well as the baselines. EPA is putting in place new allocations through this 

rulemaking, and proposed various allocation amounts for consumption and production 

allowances during the remainder of this regulatory period. 

1. How Many HCFC-22 Consumption Allowances Is EPA Allocating in 2012-2014? 

The 2009 Final Rule allocated 40,700 MT of HCFC-22 consumption allowances in 2012, 

which was 76.5 percent of estimated servicing need, and 59 percent of the total 2012 HCFC 

consumption cap. EPA arrived at this amount by estimating the amount of servicing need, taking 

recovery and reclamation into consideration. EPA then finalized an allocation that was 12,500 
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MT below estimated need. Using a similar approach, EPA proposed to allocate 11 to 38 percent 

less in 2012 relative to the 2009 Final Rule (see the Adjustment Memo in the docket for the 

rationale behind the proposed reduction). In the 2009 Final Rule, 2013 and 2014 consumption 

allocations were 35,900 MT and 31,100 MT, respectively. The agency proposed to allocate 13 to 

42 percent less in 2013 and 15 to 47 percent less in 2014. 

As discussed in sections IV.B.1. and IV.B.2., comments directly addressing reclamation, 

recovery, and reuse, and the availability of existing inventory from past years generally support 

EPA’s estimates of the inventory and recoverable material that are available each year to meet 

HCFC-22 servicing need. The agency also received 54 comments (some signed by multiple 

organizations) that address the overall consumption allocation in more general terms. Forty-two 

comments support the decrease in allowances relative to the 2009 Final Rule and 13 comments 

oppose the decrease. In addition to these comments, EPA received 47 additional comments that 

oppose a decrease in HCFC-22 production, but use the word “production” in a general sense. 

Upon reading, EPA believes the intent was to oppose a decrease in consumption, or “production 

for U.S. use.” 

Generally, comments in support of the reduction state that a lower allocation will increase 

the value of HCFC-22, resulting in more reclamation and increased incentives to recover HCFC22 from existing systems. A lower allocation encourages an orderly phaseout and still provides 

enough allowances to meet servicing needs. Supporters of a lower allocation state that a 

reduction is justified because of lower-than-expected need for HCFC-22 and the availability of 

existing inventory from past years. Three environmental organizations state that a reduction is 

(1) necessary to protect human health and the environment, and (2) practicable in terms of 

technology, safety, and availability of alternatives. 

Comments supporting a higher HCFC-22 consumption allocation cite concerns about 

higher price, limited access to refrigerant and unexpected costs, all of which could lead to 
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premature system retirements. Others point to U.S. compliance with the Montreal Protocol under 

the 2009 Final Rule, and are against any reductions to those allocation levels. 

EPA responds to individual comments in the Response to Comments, but generally 

agrees that the amount of HCFC-22 provided in the 2009 Final Rule was too high to foster an 

orderly transition. In 2015, the U.S. must reduce its production and consumption of all HCFCs to 

below 10 percent of its historic HCFC baseline under the Montreal Protocol. By 2020, HCFC 

production and consumption must be below 0.5 percent of the historic baseline and under EPA 

regulations HCFC-22 may not be produced or imported at all. Rather than create a drastic change 

in 2015, the agency’s goal is to finalize an allocation for 2012-2014 that fosters the market 

transition necessary to prevent future disruptions. 

Considering that objective, EPA is providing allowances in this final rule based on its 

assessment of market conditions. For 2012, the timing of this rule means that EPA is looking 

back at actual events during 2012 rather than projecting future needs. The agency is issuing 2012 

HCFC-22 consumption allowances at the lowest proposed amount, because that amount is 

consistent with the industry’s actual operation in 2012. The appropriateness of this level is 

supported by the fact that EPA has not received any reports of HCFC shortages during the 2012 

air-conditioning season. At the same time, this level is commensurate with the amount of 

consumption authorized in the January 20, 2012, No Action Assurance provided by Cynthia 

Giles, Assistant Administrator for Enforcement and Compliance Assurance. EPA selected this 

amount as reasonable for purposes of the No Action Assurance, recognizing that it was within 

the proposed range. Issuing allowances at the No Action Assurance level enables companies to 

account for consumption that occurred in 2012 in accordance with the No Action Assurance. As 

stated in the No Action Assurance, any HCFCs produced and imported in 2012 pursuant to the 

No Action Assurance count towards a company’s allocation and require the expenditure of 2012 

allowances. 
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In 2013-2014, EPA is making reductions for existing inventory and for reclamation and 

reuse, given the support of comments on the agency’s analysis and additional data provided 

during the comment period. EPA is not reducing allowances to account for recovery and reuse in 

the large retail food sector because there were not sufficient comments or data, and the agency 

already accounts for supermarket recovery (but not in-house reuse) in its Vintaging Model. With 

these adjustments, the amount of allowed consumption in 2012-2014 is 29 percent below 

amounts in the 2009 Final Rule for the same period. The agency believes that the amounts in this 

rulemaking will increase market incentives to properly manage and recover HCFC-22 while still 

allowing for servicing of existing HCFC-22 systems.

EPA is finalizing the following HCFC-22 consumption allocations for 2012-2014: 

2012: 17.7 percent of baseline, totaling approximately 25,100 MT 

2013: 18.0 percent of baseline, plus 2,954 MT of recoupment, totaling approximately 

28,500 MT 

2014: 14.2 percent of baseline, plus 2,954 MT of recoupment, totaling approximately 

23,100 MT 

With this amount, EPA’s total HCFC consumption allocation in 2012-2014, including 

recoupment, is at least 55 percent below the Montreal Protocol cap each year, and is below 

servicing need as estimated in the Servicing Tail Report. 

2. How Many HCFC-22 Production Allowances Is EPA Allocating in 2012-2014? 

In the proposed rule, EPA described three options for providing production allowances. 

In considering each of these options, EPA recognized that taking the 2008 transfers into account 

in accordance with the Arkema decision affects not only the HCFC-22 consumption baseline, but 

the HCFC-22 production baseline as well. Two options would have decoupled baseline 

percentage allocated for production and consumption. These options provided (1) approximately 

the same amount of production allowances as the 2009 Final Rule or (2) the same percentage of 
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baseline as the 2009 Final Rule. The third option would have kept production and consumption 

allowances at the same percentage of baseline, so the resulting production allocation would be 

dependent on the final consumption baseline percentage. Option 3 is reflected in the January 

2012 and January 20138, No Action Assurances sent to allowance holders by the Assistant 

Administrator for Enforcement and Compliance Assurance. EPA took comment on providing the 

following percentages of baseline production in 40 CFR 82.16: 

Option 1: 28.7% in 2012, 25.3% in 2013, 21.9% in 2014 

Option 2: 34.1% in 2012, 30.1% in 2013, 26.1% in 2014 

Option 3: 17.7% to 25.5% in 2012, 14.7% to 22.1% in 2013, 11.6% to 18.5% in 2014 

Under option 1, the aggregate allocation in 2012 would be about two percent lower than 

in the 2009 Final Rule (37,050 MT in the proposed rule vs. 37,721 MT in the 2009 Final Rule). 

The intent would be to keep the aggregate number of allowances at about the same level as the 

amount finalized in the 2009 Final Rule. The memo to the docket for this rulemaking titled 

“Effects of HCFC-22 and HCFC-142b Baseline Changes: 2009 Final Rule vs. 2011 Proposed 

Rule,” (Baseline Memo) explains these slight differences. While this option would keep the 

aggregate number of allowances at about the same level, U.S. production could actually fall 

under this option, because under Arkema a greater share of the allowances would go to a 

company that does not produce in the U.S.9

Under option 2, the production baseline percentage would be the same as in the 2009 

Final Rule. The petitioners in Arkema would receive the benefit of their 2008 baseline transfers; 

other companies with production baselines would get the same number of production allowances 

 

8

 The January 2013 No Action Assurance also preserved all recoupment options. 

9

 Data submitted to the Greenhouse Gas Reporting program on byproducts of the HCFC-22 production process 

indicates that only three of the four companies holding production allowances produced HCFC-22 in 2010 and 2011 

(see http://ghgdata.epa.gov/ghgp/main.do and the memo in the docket titled “2010-2011 Greenhouse Gas Reporting 

Program Data on HCFC-22 Production Byproducts”). While this company can transfer its allowances to another 

producer, the fact that they do not produce in the U.S. makes it unlikely that all calendar-year production allowances 

will be used. 
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as they received in the 2009 Final Rule, since their baselines did not change. While the 

percentage is the same as the 2009 Final Rule, since the aggregate production baseline is higher, 

the number of production allowances increases by 6,299 MT in 2012, 5,560 MT in 2013, and 

4,821 MT in 2014. However, as noted above, this would not necessarily translate to an increase 

in production. 

In addition to asking for comment on the two proposed decoupling options, the agency 

also asked for comment on several related matters. EPA asked for comment on whether, relative 

to the 2009 Final Rule, allocating the same percentage of baseline for production allowances, as 

proposed under option 2, would result in (1) an increase in U.S. consumption, (2) an increase in 

U.S. production, either for domestic use or for export, and/or (3) an increase in worldwide 

production and/or consumption of HCFCs. EPA also invited comment on the implications of any 

such increase for the U.S. economy and the global environment, particularly as it relates to the 

smooth U.S. phaseout of HCFC-22. 

EPA received nine comments on EPA’s proposed production allocation. Six comments 

support a higher level of production allowances than consumption allowances (options 1 and 2) 

and three comments oppose a higher level of production allowances. EPA provides a complete 

summary of and response to all comments in the Response to Comments, but highlights and 

responds to most of the comments in this preamble. 

Very few comments voiced a preference for a specific production option. However, two 

commenters specifically support option 2, which provides for the same percentage of baseline as 

provided in the 2009 Final Rule. Five commenters are in support of options 1 and 2 so that 

domestic companies can remain competitive in the global market. One commenter indicates U.S. 

companies could lose global market share if production allowances were not decoupled. Four 

commenters point out that allocating more production allowances than consumption allowances 

could allow for the possibility of more export, but will not lead to increased domestic 
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consumption since consumption allowances limit the amount of newly-produced HCFC-22 

entering the U.S. market. Comments also indicate allowing production in the U.S. could be 

environmentally beneficial if it displaces production at facilities that do not control byproduct 

emissions of hydrofluorocarbon (HFC)-23, which has a global warming potential of 14,80010. 

The comment cites the growth of HFC-23 emissions globally and indicates that facilities in 

Article 5 countries do not control HFC-23 emissions to the same degree as companies operating 

in the U.S. Since U.S. producers of HCFC-22 largely control their HFC-23 byproduct emissions, 

the comment states that production in the U.S., as opposed to other countries, could actually 

result in lower greenhouse gas emissions. 

Comments opposing options 1 and 2 note that the Protocol and domestic regulations 

already allow for additional production in order to serve basic domestic needs of developing 

countries in the form of Article 5 allowances. They argue that allowing more production than 

consumption may increase the global surplus of HCFC-22 and decrease price, thus discouraging 

appropriate handling of the gas. They argue this could lead to an increase in global use and 

emissions of HCFC-22. One commenter also states that if a reduction in consumption allowances 

is justified, so is a decrease in production allowances for the same reason. 

 EPA does not agree that options 1 and 2 increase environmental harm relative to the 2009 

Final Rule. First, EPA would only be providing the same number of overall production 

allowances or the same percentage of baseline for production as in the 2009 Final Rule. In the 

proposal, EPA also noted that production of one kilogram of an HCFC requires both a 

production allowance and a consumption allowance (82.15(a)(1), (2)). Thus, leaving production 

allowances at the same percentage or at the same overall amount without a corresponding 

increase in consumption allowances cannot result in greater U.S. consumption. Also, in order to 

produce for export, a company must submit documentation to verify the export of an HCFC for 

 

10 Source for the GWP of HFC-23: Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report: 

Climate Change 2007 (AR4) 
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which consumption allowances were expended in order to request a reimbursement of spent 

consumption allowances. The agency reviews the documentation and issues a notice to either 

deny or grant the request. Therefore, a company would not be able to produce more HCFC-22 

unless it had exported an equal amount of material and been granted a refund of spent 

consumption allowances. Additionally, since HCFC consumption is capped globally under the 

Montreal Protocol, companies exporting HCFCs are constrained by the consumption caps 

established in the country receiving the material. 

 With regard to HFC-23, EPA has worked with industry through its HFC-23 Emission 

Reduction Partnership to encourage companies to reduce HFC-23 byproduct emissions from the 

manufacture of HCFC-22. In the 2010 U.S. Climate Action Report, the agency noted that 

“despite a four percent increase in the production of HCFC-22 compared to 1990, EPA estimates 

that total HFC emissions in 2007 were significantly below 1990 levels. Compared to business as 

usual, EPA estimates the partnership reduced emissions by 17.8 Tg CO2 Eq. in 2007,” (see page 

55 of the U.S. Climate Action Report 2010, available in the docket). Currently, some HFC-23 

emissions in Article 5 countries are mitigated through Clean Development Mechanism (CDM) 

projects using destruction technologies, namely thermal oxidation or plasma arc. However, not 

all HCFC-22 facilities are eligible to earn credits under CDM; therefore, a number of facilities 

may not have emission reduction technology installed. There are about 26 plants producing 

HCFC-22 in Article 5 countries. Approximately 17 plants have CDM projects that control HFC23 byproduct emissions. The remaining nine plants may not have emissions control technologies 

installed. HCFC-22 production in the United States may provide environmental benefits in 

reduced HFC-23 emissions to the extent U.S. production supplants the Article 5 production in 

those specific plants that do not have HFC-23 byproduct destruction technologies installed. 

 Some commenters argue that EPA will increase the global supply of HCFC-22 by 

allocating more production than consumption allowances. EPA disagrees. First, by decreasing 
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consumption allowances relative to the 2009 Final Rule, EPA is decreasing potential U.S. 

consumption of virgin material by more than 31,100 MT over 2012-2014. Even if every single 

additional production allowance was used for export, global consumption would still be at least 

9,800 MT less than the allocations provided in the 2009 Final Rule if all other factors are 

constant. Because at least one company holding production allowances does not produce HCFC22 in the United States, it is unlikely that every production allowance will be used. As a result, 

the net reduction in global consumption of HCFC-22 may be even greater. Finally, starting in 

2013, Article 5 countries’ consumption of HCFCs is capped, which further limits global HCFC22 demand (see Montreal Protocol Art. 5, para. 8 ter.). As noted below, EPA is issuing 

production allowances using the same percentages as in the 2009 Final Rule only for the 2013 

and 2014 control periods. 

EPA is also concerned that decreasing production allowances for the remainder of the 

current regulatory period could deprive certain U.S. manufacturers of existing global business. 

Article 5 allowances already allow the export of HCFC-22; but only to Article 5 countries. 

Providing more production than consumption allowances could allow companies to continue 

exporting to non-Article 5 countries, which have the same overall Montreal Protocol phaseout 

schedule as the United States but may use a basket approach rather than a chemical-by-chemical 

approach to phasing out HCFCs. Also, using the same percentage of baseline as the 2009 Final 

Rule should allow companies to continue their exports to Article 5 countries, which are just 

beginning to phase out HCFCs. Since consumption allowances already limit production for U.S. 

use, EPA is providing the same percentage of baseline for HCFC-22 production as in the 2009 

Final Rule beginning in 2013 to avoid a scenario in which U.S. manufacturers might have to 

decrease their production for global markets relative to the amount allowed under the 2009 Final 

Rule. As noted previously, U.S. production may provide environmental benefits when compared 

to production in plants that lack HFC-23 byproduct destruction technologies. 
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Recognizing the timing of this rule’s signature, and the fact that Article 5 countries’ 

HCFC consumption is not capped until 2013, the agency is adopting a different approach for 

2012 than for 2013 and 2014. The agency is issuing 2012 HCFC-22 production allowances at the 

lowest proposed amount, because that amount is consistent with the industry’s actual operation 

in 2012. The appropriateness of this level is supported by the fact that EPA has not received any 

reports of HCFC shortages during the 2012 air-conditioning season. At the same time, this level 

is commensurate with the amount of production authorized in the January 20, 2012, No Action 

Assurance provided by Cynthia Giles, Assistant Administrator for Enforcement and Compliance 

Assurance. EPA selected this amount as reasonable for purposes of the No Action Assurance, 

recognizing that it was within the proposed range. Issuing allowances at the No Action 

Assurance level enables companies to account for production that occurred in 2012 in 

accordance with the No Action Assurance. As stated in the No Action Assurance, any HCFCs 

produced in 2012 pursuant to the No Action Assurance count towards a company’s allocation 

and require the expenditure of 2012 allowances. EPA is finalizing production option 2 for 2013 

and 2014. 

In summary, EPA believes providing the same percentage of baseline as used in the 2009 

Final Rule for production allowances in 2013-2014 (1) cannot lead to an increase in U.S. 

consumption, (2) allows U.S. producers to produce the same amount as under the 2009 Final 

Rule, with potential environmental benefits to the extent that production might otherwise occur 

in plants that lack HFC-23 byproduct destruction technologies, and (3) would not result in a 

global increase in production or consumption of HCFC-22 beyond the limits agreed to under the 

Montreal Protocol. In addition, the environmental benefits achieved by the reduction in 

consumption allowances outweigh any potential increase in U.S. production. As such, EPA is 

allocating the following amounts of HCFC-22 production allowances in 2012-2014: 
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- 2012: 17.7% of baseline, resulting in approximately 22,800 MT of HCFC-22 

production 

- 2013: 30.1% of baseline, plus 2,306 MT of recoupment, resulting in approximately 

41,200 MT of HCFC-22 production 

- 2014: 26.1% of baseline, plus 2,306 MT of recoupment, resulting in approximately 

36,000 MT of HCFC-22 production 

Combined with allowed production for other HCFCs, these finalized amounts are at least 36 

percent below the Montreal Protocol production cap of 3,884.25 ODP-weighted MT. 

3. How Many HCFC-142b Consumption and Production Allowances Is EPA Allocating 

in 2012-2014?

 Establishing HCFC-142b baseline allowances that take into account the 2008 interpollutant transfers results in 2,047 MT of aggregate baseline consumption allowances and 9,444 

MT of aggregate baseline production allowances. Consistent with the 2009 Final Rule, EPA 

proposed to allocate 100 MT of consumption allowances. To get to that level, EPA would 

allocate 4.9 percent of the aggregate consumption baseline, as reflected in the table at section 

82.16. 

 Using the same percentage (4.9 percent) of the aggregate production baseline, EPA 

proposed to allocate 463 MT of HCFC-142b production allowances for each control period 

between 2012 and 2014. The aggregate allocation for production is higher than the amount 

allocated in the 2009 Final Rule (463 MT in this rule vs. 118 MT in the 2009 Final Rule). This is 

because the 2008 transfers out of HCFC-142b involved significantly more consumption 

allowances than production allowances. Taking those transfers into account decreases the HCFC142b consumption baseline substantially but has a lesser impact on the HCFC-142b production 

baseline. 
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 The agency received only four comments on HCFC-142b allocations. Two comments 

strongly support reducing HCFC-142b consumption and production allowances; one of these 

commenters states that HCFC-142b is only used in blends to service old CFC equipment. Of the 

other two comments, one supports the consumption allocation of 100 MT, noting that HCFC142b is a critical component of a refrigerant blend, but that production allowances need not 

increase. The other commenter asks that EPA not lower the HCFC-142b production allocation to 

compensate for any increase in HCFC-22 production. 

 EPA did not propose to decrease HCFC-142b allowances in the proposed rule. The 

agency assessed the need for the chemical in the 2009 Final Rule and will revisit the need for 

HCFC-142b for servicing during the rulemaking for the next regulatory period. For this reason, 

the agency is finalizing its proposed consumption and production allocations for HCFC-142b. 

There will be 100 MT of HCFC-142b consumption allowances and 463 MT of production 

allowances issued in the years 2012, 2013, and 2014. These allowance amounts are 4.9 percent 

of the HCFC-142b baselines, and keep the HCFC-142b consumption allocation approximately 

the same as in the 2009 Final Rule. 

 To provide recoupment to companies for lost opportunities in 2010, EPA is allocating a 

total of 61 MT of HCFC-142b consumption allowances and 397 MT of HCFC-142b production 

allowances in addition to the percentage of baseline issued. Since the agency is providing 

recoupment over two years, there will be an additional 30 MT of consumption allowances and 

198 MT of production allowances in 2013 and 2014. See section IV.B.6. of this preamble for 

more discussion on recoupment allowances. 

4. How Does the Aggregate Allocation for HCFC-22 and HCFC-142b Translate Entity-byEntity?

 For 2012-2014, EPA is setting production and consumption baselines for HCFC-22 and 

HCFC-142b on the same basis as in the 2009 Final Rule, except that EPA is making adjustments 
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to reflect (1) the 2008 inter-pollutant transfers of baseline allowances deemed permanent by the 

Court, (2) inter-company, single-pollutant transfers of baseline allowances that occurred in 2010, 

and (3) changes in company names that occurred after the 2009 Final Rule was signed. All of 

these changes were made in the 2011 Interim Final Rule (76 FR 47451), and EPA proposed to do 

the same for 2012-2014. Applying the approach described above, EPA is apportioning 

production and consumption baselines for HCFC-22 and HCFC-142b to the following entities in 

the following amounts: 

Table 2: Baseline Production Allowances of HCFC-22 and HCFC-142b in 40 CFR 82.17 

Person Controlled Substance Allowances (kg) 

Arkema 

HCFC-22 46,692,336

HCFC-142b 484,369

DuPont HCFC-22 42,638,049

Honeywell 

HCFC-22 37,378,252

HCFC-142b 2,417,534

MDA Manufacturing HCFC-22 2,383,835

Solvay Solexis HCFC-142b 6,541,764

Table 3: Baseline Consumption Allowances of HCFC-22 and HCFC-142b in 40 CFR 82.19 

Person Controlled Substance Allowances (kg) 

ABCO Refrigeration Supply HCFC-22 279,366

Altair Partners HCFC-22 302,011

Arkema HCFC-22 48,637,642
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HCFC-142b 483,827

Carrier Corporation HCFC-22 54,088

Coolgas Investment Property HCFC-22 1,040,458

DuPont 

HCFC-22 38,814,862

HCFC-142b 52,797

H.G. Refrigeration Supply HCFC-22 40,068

Honeywell 

HCFC-22 35,392,492

HCFC-142b 1,315,819

Mexichem Fluor Inc. HCFC-22 2,546,305

Kivlan & Company HCFC-22 2,081,018

MDA Manufacturing HCFC-22 2,541,545

Mondy Global HCFC-22 281,824

National Refrigerants HCFC-22 5,528,316

Refricenter of Miami HCFC-22 381,293

Refricentro HCFC-22 45,979

R-Lines HCFC-22 63,172

Saez Distributors HCFC-22 37,936

Solvay Fluorides HCFC-22 3,781,691

Solvay Solexis HCFC-142b 194,536

USA Refrigerants HCFC-22 14,865

 The finalized baselines listed above are identical to the tables presented in the 2011 

Interim Final Rule (76 FR 47451). 
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V. How Is EPA Changing the Regulations Governing Transfers of Class II 

Allowances? 

The agency is concerned about the possibility of companies undermining the HCFC 

chemical-by-chemical phaseout by performing inter-pollutant transfers in advance of future 

phaseout steps. EPA interprets the 2003 Final Rule, which established the transfer provisions at 

40 CFR 82.23, as allowing only single-pollutant, inter-company transfers to be made on a 

permanent basis. Nevertheless, EPA recognizes that in Arkema, the Court found that “EPA’s 

practice under the 2003 Rule was to allow petitioners’ baseline transfers of inter-pollutant 

allowances” (618 F.3d at 8). Therefore, EPA clarified its current policy on inter-pollutant 

transfers in the 2011 Interim Final Rule (76 FR 47459). In January 2012, EPA proposed to 

modify the regulatory text to dispel any possibility of confusion in the future. 

Through this final action, the agency is modifying 40 CFR 82.23 to address the duration 

of inter-pollutant transfers, and to reflect prior agency statements pertaining to inter-pollutant 

transfers of Article 5 allowances. 

A. How Is EPA Changing the Regulations Governing Permanent Transfers of Class II 

Allowances? 

Sections 607(b) and (c) of the CAA address inter-pollutant and inter-company transfers 

of allowances, respectively. Inter-pollutant transfers are the transfer (or conversion) of an 

allowance of one substance to an allowance of another substance on an ODP-weighted basis. 

Inter-company transfers are transfers of allowances for the same ODS from one company to 

another company. Section 607(c) also authorizes inter-company transfers combined with interpollutant transfers, so long as the requirements of both are met. The corresponding regulatory 

provisions for HCFCs appear at 40 CFR 82.23. 

EPA proposed to modify section 82.23 to clarify that the agency will not approve future 

inter-pollutant transfers of baseline production allowances or baseline consumption allowances. 
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EPA received two comments directly referring to this proposal. One comment supports EPA’s 

proposed changes because it will prevent future manipulation of the allowance program. The 

commenter also believes the CAA prohibits permanent inter-pollutant transfers. Another 

commenter encourages EPA to reconsider its proposed changes and to allow for inter-pollutant 

baseline transfers if an allowance holder has historically made the transfers. EPA also received 

two comments on the 2012-2014 baselines that are relevant. Both commenters state that section 

607 of the CAA prohibits baseline inter-pollutant transfers. 

 As discussed in the proposed rule, EPA remains concerned about the potential for future 

manipulation of the allocation system if inter-pollutant baseline transfers are allowed to affect a 

company’s baseline in future regulatory periods. For example, a HCFC-22 producer or importer 

could dominate the HCFC-123 market in 2015 by converting its HCFC-22 baseline to HCFC123 baseline in 2014. Given the different ODPs of HCFC-22 and HCFC-123 (0.055 and 0.02, 

respectively), converting one baseline allowance of HCFC-22 would result in 2.75 baseline 

allowances of HCFC-123. Also, since companies hold many more HCFC-22 baseline allowances 

than HCFC-123 baseline allowances, converting those HCFC-22 baseline allowances would 

have an overwhelming effect on the current HCFC-123 baseline allowance holders and on the 

overall market. 

 As another example, in 2020 EPA will no longer be issuing HCFC-22 production or 

consumption allowances (see section 82.16(e)). EPA expects that companies with only HCFC-22 

or HCFC-142b allowances would no longer be producing or importing HCFCs at that date. If 

EPA were to allow inter-pollutant baseline transfers that carried forward into the new regulatory 

period, companies with HCFC-22 baselines could convert them all to baselines for HCFC-123 in 

2019. Perpetuating the HCFC-22 baselines in a new form would be counter to the design of the 

chemical-by-chemical phaseout, under which the baseline allowances for a particular chemical 

are intended to drop out of the system upon the phase-out of that chemical. Thus, there are 
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important policy reasons for not taking inter-pollutant transfers from prior regulatory periods into 

account in establishing baselines for new regulatory periods. 

 EPA has been clear in its past statements about its policy on what happens to allowances 

when a chemical is phased out. In the 1999 Advanced Notice of Proposed Rulemaking (“1999 

ANPRM”, 64 FR 16373), EPA discussed options for establishing the HCFC allocation system. 

Referring to HCFC-141b, which was phased out in 2003. EPA stated at 64 FR 16378: 

It is important to note that, under any scenario, when the phaseout date for HCFC141b is reached in 2003, all HCFC-141b consumption (production + importsexports) will cease. Those who did not participate in the HCFC-141b market will 

not be affected in 2003. However, those who did participate in the HCFC-141b 

market— through, for example, producing or importing HCFC-141b—would no 

longer receive any allowances associated with their historic HCFC-141b activity, 

and thus any authorization to produce or import HCFC-141b. Likewise, any 

company that, through a baseline trade, received allowances associated with 

historic HCFC-141b would no longer receive any allowances associated with the 

baseline trade in 2003 (emphasis added). 

 In the 2001 Notice of Proposed Rulemaking for the HCFC allocation system (“2001 

NPRM,” 66 FR 38064), EPA elaborated further on what happens when a chemical is phased out 

under a chemical-by-chemical phaseout at 66 FR 38068-69: 

On the first HCFC phaseout date of 2003, those companies that received baseline 

consumption allocations (or received a permanent baseline transfer)...of HCFC141b would subtract that portion from their total consumption allocation. If 

permanent inter-pollutant trades had been made, an amount equal to the ODPweighted kilograms of baseline HCFC–141b allowances that had been received in 

the transfer would be deducted from the baseline allocation...The same would 

occur in [later years] for the relevant chemicals being phased out (emphasis 

added). 

 Finally, in the 2003 Final Rule establishing the HCFC phaseout, EPA stated its position 

at 68 FR 2835: “EPA will allow permanent transfers of baseline allowances with those 

allowances disappearing at the phaseout date for the specific HCFC, regardless of what interpollutant transfers had taken place.” Because EPA has been clear on this point that baseline 

allowances associated with a specific HCFC—regardless of their current owner or current 
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status—disappear when that HCFC is phased out, the agency continues to believe allowing interpollutant baseline transfers only on an annual basis is appropriate. 

 The commenter objecting to the proposed changes to the transfer regulations cited several 

issues that EPA should consider. The commenter cites its past practice of annually transferring 

its HCFC-142b allowances to HCFC-22 and the need to consider the precedent this proposed 

change might have. The agency notes that prohibiting inter-pollutant baseline transfers in no way 

precludes the commenter, or any allowance holder, from continuing to make annual interpollutant transfers. However, when EPA established the “worst-first” HCFC phaseout, the goal 

was to encourage companies to move out of HCFCs, not to continually produce or import 

HCFCs by switching from one chemical to another. 

 Additionally, the commenter envisions a scenario where an allowance holder could 

change the focus of its business to produce and sell a substance that does less harm to the 

environment. While an allowance holder could move to an HCFC that is less harmful to the 

ozone layer, the switch results in no environmental benefit (excepting the 0.1 percent transfer 

offset) if all of the transferred allowances are used. Since transfers are weighted based on their 

ODP, moving from a higher ODP chemical to a lower ODP chemical would result in more 

allowances for the lower ODP chemical and an equal environmental footprint. 

 Further, if EPA were to allocate allowances for the next regulatory period taking interpollutant transfers into account, those transfers would only affect aggregate company baselines 

in specific chemicals, not the total amount allocated. In the case of the 2011 Interim Final Rule, 

when EPA updated baselines to include past inter-pollutant transfers, there was no environmental 

benefit to doing so. The way EPA allocates allowances relies on the estimate of market servicing 

need for a chemical and then divides that amount up proportionally based on a company’s 

baseline allowances for that particular chemical (see section IV of this preamble for the detailed 

description). While taking baseline inter-pollutant transfers into account may have tremendous 
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benefits for the company making the transfers, it does nothing for the environment. As described 

above, EPA sees this use of inter-pollutant transfers as manipulating the system, and is clarifying 

that baseline inter-pollutant transfers will not be allowed in the future. 

 Two commenters state that modifying the baselines by taking into account inter-pollutant 

transfers is contrary to the CAA. They argue that section 607 of the CAA allows EPA to approve 

inter-pollutant transfers of allowances only on a year-to-year basis, and point to language in 

section 607(b) stating that EPA regulations are to permit “a production allowance for a substance 

for any year to be transferred for a production allowance for another substance for the same year 

on an ozone depletion weighted basis.” Similar arguments were made in comments submitted on 

the 2008 Proposed Rule and on the 2011 Interim Final Rule. 

 EPA does not agree with the comment that the language of section 607(b) is clear on its 

face. The statutory language is ambiguous, and EPA has discretion to choose a reasonable 

interpretation of that language. EPA determined in the 2009 Final Rule that section 607(b) is best 

read as permitting only year-by-year inter-pollutant transfers. EPA continues to believe that this 

is the best interpretation of the statutory language. Section 607(b) states that EPA’s rules are to 

permit “a production allowance for a substance for any year to be transferred for a production 

allowance for another substance for the same year.” This language emphasizes the year-by-year 

nature of such transactions. No parallel language appears in section 607(c). That section does, 

however, provide that any inter-pollutant transfers between two or more persons must meet the 

requirements of section 607(b). 

 As the Court noted, “the agency is certainly entitled to . . . institute a program that forbids 

baseline inter-pollutant transfers in the future,” (Arkema v. EPA, 618 F.3d at 9). Hence, EPA 

concludes that requiring all inter-pollutant transfers to be conducted on a yearly – and thus 

temporary – basis going forward is the approach most consistent with the wording of section 

607(b). Further discussion of the reasons for limiting inter-pollutant transfers to those conducted 
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on a calendar-year basis is available in the Response to Comments for the 2009 Final Rule 

(included in the docket for this rulemaking). 

 Consistent with the Court’s decision regarding past inter-pollutant transfers (those 

conducted during the prior regulatory period), the baselines established in this action for 2012-

2014 take into account the 2008 inter-pollutant baseline transfers. EPA is clarifying, however, 

that it has not approved any inter-pollutant transfers of baseline allowances in the current 

regulatory period, and for the reasons given in the 2009 Final Rule, the 2011 Interim Final Rule, 

and in this action, in the future, EPA will approve inter-pollutant transfers only on a year-by-year 

basis. Thus, in the context of the allowance system for protection of stratospheric ozone, 

companies should not expect that any future inter-pollutant transfers they conduct will affect 

their baselines either in the current regulatory period or any future regulatory period. 

 EPA is revising the regulations to avoid any further dispute about the agency’s position 

on this issue. The new language clarifies that permanent inter-pollutant transfers of baseline 

allowances will not be approved. In addition, EPA is clarifying that the procedures in section 

82.23(a) apply to permanent, single-pollutant transfers. 

B. How Is EPA Changing the Regulations Governing Transfers of Article 5 Class II 

Allowances?

 Article 5 allowances for Class II substances are the privileges granted under 40 CFR 

82.18(a) to produce the specified HCFC for export only to countries listed in 40 CFR Subpart A, 

Appendix C, Annex 4. The countries listed in that annex are developing countries whose control 

obligations under the Montreal Protocol are addressed in Article 5 of the treaty and hence are 

referred to as “Article 5 Parties.” EPA proposed to revise the regulations at 40 CFR 82.23(b) to 

reflect its previously stated intent to allow inter-pollutant transfers of Article 5 allowances. 

EPA promulgated section 82.23 as part of the 2003 Final Rule (68 FR 2820). EPA 

specifically discussed the inter-pollutant transfer of Article 5 allowances at 68 FR 2834 stating, 
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“For example, after the 2003 phaseout of HCFC-141b and before 2010, a company 

receiving...Article 5 allowances for HCFC-141b could engage in inter-company transfers of 

those allowances, but not in inter-pollutant transfers [because no other HCFC Article 5 

allowances would be available during that period]. In 2010, when...Article 5 allowances for 

HCFC-22 and HCFC-142b become available, these allowances will be transferable with the ones 

for HCFC-141b.” These statements indicate that the agency intended for companies to be able to 

perform inter-pollutant transfers of Article 5 allowances. The omission of Article 5 allowances 

from section 82.23(b) appears to have been an oversight. Therefore, EPA proposed to revise the 

regulations to specifically provide for the inter-pollutant transfers of Article 5 allowances 

through this rulemaking. As with other types of inter-pollutant transfers, these transfers would be 

limited in duration to a single year. The agency received two comments on its proposal to revise 

the text at section 82.23(b), which EPA responds to in the Response to Comments. 

 EPA also proposed to change the text at 82.23(a)(ii) for consistency with its previously 

stated policy on offsets for transfers of Article 5 allowances. Section 607(a) requires that 

transfers of production allowances “will result in greater total reductions in the production in 

each year of...class II substances than would occur in that year in the absence of such 

transactions.” In a November 10, 1994, Federal Register notice, EPA stated its interpretation that 

the section 607 offset requirement applies to Article 5 allowance transfers (59 FR 56287): “Interpollutant transfers of Article 5 allowances will continue to require a one percent offset, as 

required by section 607 of the CAA...” In the May 10, 1995, final rule at 60 FR 24980, EPA 

stated that “[w]ith today's action, EPA permits inter-pollutant and inter-company transfers of 

Article 5 allowances as proposed...” meaning, EPA intended to require an offset for transfers of 

Article 5 allowances in the class I allowance system. 

This intent to require an offset is also reflected in certain provisions of the class II 

allowance system in 40 CFR part 82. Section 82.23(a)(i)(G) specifically requires an offset for 
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Article 5 allowance inter-company transfers, stating that the transfer claim must set forth: “For 

trades of consumption allowances, production allowances, export production allowances, or 

Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted quantity 

traded that will be deducted from the transferor's allowance balance.” The offset is also 

mentioned at section 82.23(a)(iii): “In the case of transfers of...Article 5 allowances, EPA will 

reduce the transferor's balance of unexpended allowances by the quantity (in kilograms) to be 

converted plus 0.1 percent of that quantity.” This contrasts with section 82.23(a)(ii)(A), which 

states that in the case of Article 5 allowances, “EPA will reduce the transferor’s balance of 

unexpended allowances...by the quantity to be transferred,” with no mention of an offset. In 

addition, in the introductory text for 82.23(a)(ii), Article 5 allowances are not mentioned: “The 

transfer claim is the quantity (in kilograms) to be transferred plus, in the case of transfers of 

production or consumption allowances, 0.1 percent of that quantity;” EPA proposed to amend 

82.23(a)(ii) and 82.23(a)(ii)(A) to require an offset for transfers of Article 5 allowances. EPA did 

not receive comments on this proposed clarification to the regulatory text, and is finalizing the 

clarification as proposed. Section 82.23(a) is now consistent throughout. Section 82.23(b) 

requires an offset of 0.1 percent for all inter-pollutant transfers and since EPA is adding Article 5 

allowances to section 82.23(b), an offset will automatically apply. 

To reflect EPA’s intent to allow inter-pollutant transfers of Article 5 allowances, and the 

requirement that an offset be deducted when an entity is transferring Article 5 allowances, the 

agency is finalizing the proposed modifications to the regulatory text at 40 CFR 82.23(a)(ii), 

82.23(a)(ii)(A), and 82.23(b). 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 
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 Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a 

“significant regulatory action” since it raises “novel legal or policy issues.” Accordingly, EPA 

submitted this action to the Office of Management and Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in 

response to OMB recommendations have been documented in the docket for this action. 

 EPA did not conduct a specific analysis of the benefits and costs associated with this 

action. Many previous analyses provide a wealth of information on the costs and benefits of the 

U.S. HCFC phaseout including: 

• The 1993 Addendum to the 1992 Phaseout Regulatory Impact Analysis: Accelerating the 

Phaseout of CFCs, Halons, Methyl Chloroform, Carbon Tetrachloride, and HCFCs.

• The 1999 Report Costs and Benefits of the HCFC Allowance Allocation System.

• The 2000 Memorandum Cost/Benefit Comparison of the HCFC Allowance Allocation 

System. 

• The 2005 Memorandum Recommended Scenarios for HCFC Phaseout Costs Estimation. 

• The 2006 ICR Reporting and Recordkeeping Requirements of the HCFC Allowance 

System.

• The 2007 Memorandum Preliminary Estimates of the Incremental Cost of the HCFC 

Phaseout in Article 5 Countries.

• The 2007 Memorandum Revised Ozone and Climate Benefits Associated with the 2010 

HCFC Production and Consumption Stepwise Reductions and a Ban on HCFC Precharged Imports.

• The 2009 ICR Reporting and Recordkeeping Requirements of the HCFC Allowance 

System.

A memorandum summarizing these analyses is available in the docket. 

B. Paperwork Reduction Act 
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 This action does not impose any new information collection burden. EPA already 

requires recordkeeping and reporting for HCFCs, and this action does not amend those 

provisions. The Office of Management and Budget (OMB) has previously approved the 

information collection requirements contained in the existing regulations at 40 CFR part 82, 

subpart A under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060-0498. The OMB control numbers for EPA's regulations in 

40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking 

requirements under the Administrative Procedure Act or any other statute, unless the agency 

certifies that the rule will not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations, and small 

governmental jurisdictions. We have considered the economic impacts of this final rule on small 

entities. For purposes of assessing the impacts of this rule on small entities, a small entity is 

defined as: (1) a small business as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a 

city, county, town, school district or special district with a population of less than 50,000; and (3)

a small organization that is any not-for-profit enterprise which is independently owned and 

operated and is not dominant in its field. 

 This action may affect the following categories: 

- Industrial Gas Manufacturing entities (NAICS code 325120), including 

fluorinated hydrocarbon gases manufacturers and reclaimers; 
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- Other Chemical and Allied Products Merchant Wholesalers (NAICS code 

422690), including chemical gases and compressed gases merchant 

wholesalers; 

- Air-Conditioning and Warm Air Heating Equipment and Commercial and 

Industrial Refrigeration Equipment Manufacturing entities (NAICS code 

333415), including air-conditioning equipment and commercial and industrial 

refrigeration equipment manufacturers; 

- Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS 

code 423730) , including air-conditioning (condensing unit, compressors) 

merchant wholesalers; 

- Electrical and Electronic Appliance, Television, and Radio Set Merchant 

Wholesalers (NAICS code 423620), including air-conditioning (room units) 

merchant wholesalers; and 

- Plumbing, Heating, and Air-Conditioning Contractors (NAICS code 238220), 

including central air-conditioning system and commercial refrigeration 

installation; HVAC contractors. 

 After considering the economic impacts of this final rule on small entities, I certify that 

this action will not have a significant economic impact on a substantial number of small entities. 

In determining whether a rule has a significant economic impact on a substantial number of 

small entities, the impact of concern is any significant adverse economic impact on small 

entities, since the primary purpose of the regulatory flexibility analyses is to identify and address 

regulatory alternatives “which minimize any significant economic impact of the rule on small 

entities.” 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant 

economic impact on a substantial number of small entities if the rule relieves regulatory burden, 

or otherwise has a positive economic effect on all of the small entities subject to the rule. 
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This rule relieves a regulatory ban on production and consumption that would otherwise 

apply in the wake of the Court’s vacatur. Additionally, EPA is continuing to allocate production 

and consumption allowances using the same approach described in the 2009 Final Rule with 

adjustments to reflect (1) 2008 inter-pollutant transfers of baseline allowances deemed 

permanent by the Court, (2) inter-company, single-pollutant transfers of baseline allowances that 

occurred in 2010, (3) changes in company names that occurred after the 2009 Final Rule was 

signed and (4) an updated picture on the need for virgin HCFC-22 as assessed in the Adjustment 

Memo and sections IV.B.1-3 of this preamble. EPA is not modifying the recordkeeping or 

reporting provisions and thus is not increasing the burden to small businesses. EPA’s HCFC 

Phaseout Benefits and Costs Memo, included in this docket, provides a summary of previous 

small business analyses, as well as the cost and benefit data used for the 2009 Final Rule. 

We have therefore concluded that today's final rule will relieve regulatory burden for all 

affected small entities. 

D. Unfunded Mandates Reform Act 

 This action contains no Federal mandates under the provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal 

governments or the private sector. UMRA does not apply to rules that are necessary for the 

ratification or implementation of international treaty obligations. This rule implements the 2010 

milestone for the phase-out of HCFCs under the Montreal Protocol. Therefore, this action is not 

subject to the requirements of sections 202 or 205 of UMRA. 

 This action is also not subject to the requirements of section 203 of UMRA because it 

contains no regulatory requirements that might significantly or uniquely affect small 

governments. This action apportions production and consumption allowances and establishes 

baselines for private entities, not small governments. 

E. Executive Order 13132: Federalism 
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 This action does not have federalism implications. It will not have substantial direct 

effects on the States, on the relationship between the national government and the States, or on 

the distribution of power and responsibilities among the various levels of government, as 

specified in Executive Order 13132. This action is expected to primarily affect producers, 

importers, and exporters of HCFCs. Thus, the requirements of section 6 of the Executive Order 

do not apply. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments 

 This action does not have tribal implications, as specified in Executive Order 13175 (65 

FR 67249, November 9, 2000). This action does not significantly or uniquely affect the 

communities of Indian tribal governments. It does not impose any enforceable duties on 

communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks 

 This action is not subject to EO 13045 (62 F.R. 19885, April 23, 1997) because it is not 

economically significant as defined in EO 12866. The agency nonetheless has reason to believe 

that the environmental health or safety risk addressed by this action may have a disproportionate 

effect on children. Depletion of stratospheric ozone results in greater transmission of the sun’s 

ultraviolet (UV) radiation to the earth’s surface. The following studies describe the effects of 

excessive exposure to UV radiation on children: (1) Westerdahl J, Olsson H, Ingvar C. “At what 

age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J 

Cancer 1994: 30A: 1647-54; (2) Elwood JM Japson J. “Melanoma and sun exposure: an 

overview of published studies,” Int J Cancer 1997; 73:198-203; (3) Armstrong BK, “Melanoma: 

childhood or lifelong sun exposure,” In: Grobb JJ, Stern RS Mackie RM, Weinstock WA, eds. 

“Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell 
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Science, 1997: 63-6; (4) Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes 

Control, 1994: 5:564-72; (5) Heenan, PJ. “Does intermittent sun exposure cause basal cell 

carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60: 489-94; (6) 

Gallagher, RP, Hill, GB, Bajdik, CD, et. al. “Sunlight exposure, pigmentary factors, and risk of 

nonmelanocytic skin cancer I, Basal cell carcinoma,” Arch Dermatol 1995; 131: 157-63; (7) 

Armstrong, DK. “How sun exposure causes skin cancer: an epidemiological perspective,” 

Prevention of Skin Cancer. 2004. 89-116. 

 This action implements the U.S. commitment to reduce the total basket of HCFCs 

produced and imported to 25 percent of the respective baselines. While on an ODP-weighted 

basis, this is not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of 

the most significant remaining actions the U.S. can take to complete the overall phaseout of ODS 

and further decrease impacts on children’s health from stratospheric ozone depletion. 

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

 This action is not a “significant energy action” as defined in Executive Order 13211 (66 

FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy. The rule issues allowances for the production and 

consumption of HCFCs. 

I. National Technology Transfer and Advancement Act 

 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

("NTTAA"), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures, and business practices) that are 
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developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the agency decides not to use available and 

applicable voluntary consensus standards. This action does not involve technical standards. 

Therefore, EPA did not consider the use of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

 EPA has determined that this action will not have disproportionately high and adverse 

human health or environmental effects on minority or low-income populations because it 

increases the level of environmental protection for all affected populations without having any 

disproportionately high and adverse human health or environmental effects on any population, 

including any minority or low-income population. This action continues the implementation of 

the U.S. commitment to reduce the total basket of HCFCs produced and imported to a level that 

is more than 75 percent below the respective baselines. While on an ODP-weighted basis, this is 

not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of the most 

significant remaining actions the U.S. can take to complete the overall phaseout of ODS and 

further lessen the adverse human health effects for the entire population. 

K. The Congressional Review Act 

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take 
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effect, the agency promulgating the rule must submit a rule report, which includes a copy of the 

rule, to each House of the Congress and to the Comptroller General of the U.S. EPA will submit 

a report containing this rule and other required information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the U.S. prior to publication of the rule in the 

Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal 

Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be 

effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Administrative practice and procedure, Air pollution control, 

Chemicals, Exports, Hydrochlorofluorocarbons, Imports 

DATED: ___________________________ 

___________________________________ 

Bob Perciasepe, 

Acting Administrator. 

40 CFR part 82 is to be amended to read as follows:

PART 82-PROTECTION OF STRATOSPHERIC OZONE 

1. The authority citation for part 82 continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671– 7671q. 

2. Amend §82.16 by revising paragraph (a) to read as follows: 

§82.16 Phaseout schedule of class II controlled substances. 

Protection of Stratospheric Ozone: Adjustments to the Allowance System for 

Controlling HCFC Production, Import, and Export (Page 82 of 86) 
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(a) Calendar-year Allowances. (1) In each control period as indicated in the following tables, 

each person is granted the specified percentage of baseline production allowances and baseline 

consumption allowances for the specified class II controlled substances apportioned under 

§§82.17 and 82.19: 

Calendar-year HCFC Production Allowances 

Control 

Period 

Percent of 

HCFC141b 

Percent of 

HCFC-22 

Percent of 

HCFC142b 

Percent of 

HCFC-123

Percent of 

HCFC-124

Percent of 

HCFC225ca 

Percent of 

HCFC225cb 

2003 0 100 100 -- -- -- -- 

2004 0 100 100 -- -- -- -- 

2005 0 100 100 -- -- -- -- 

2006 0 100 100 -- -- -- -- 

2007 0 100 100 -- -- -- -- 

2008 0 100 100 -- -- -- -- 

2009 0 100 100 -- -- -- -- 

2010 0 41.9 0.47 125 125 125 125 

2011 0 32.0 4.9 125 125 125 125 

2012 0 17.7 4.9 125 125 125 125 

2013 0 30.1 4.9 125 125 125 125 

2014 0 26.1 4.9 125 125 125 125 

 
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Calendar-year HCFC Consumption Allowances 

Control 

Period 

Percent of 

HCFC141b 

Percent of 

HCFC-22 

Percent of 

HCFC142b 

Percent of 

HCFC-123

Percent of 

HCFC-124

Percent of 

HCFC225ca 

Percent of 

HCFC225cb 

2003 0 100 100 -- -- -- -- 

2004 0 100 100 -- -- -- -- 

2005 0 100 100 -- -- -- -- 

2006 0 100 100 -- -- -- -- 

2007 0 100 100 -- -- -- -- 

2008 0 100 100 -- -- -- -- 

2009 0 100 100 -- -- -- -- 

2010 0 41.9 0.47 125 125 125 125 

2011 0 32.0 4.9 125 125 125 125 

2012 0 17.7 4.9 125 125 125 125 

2013 0 18.0 4.9 125 125 125 125

2014 0 14.2 4.9 125 125 125 125

* * * * * 

3. Amend §82.16(a) by inserting the following paragraph: 

§82.16 Phaseout schedule of class II controlled substances. 

(a) * * * (2) Recoupment allowances. In the control period beginning January 1, 2013 and 

ending December 31, 2013, and again in the control period beginning January 1, 2014 and 

ending December 31, 2014, certain companies are granted HCFC consumption and production 

allowances in addition to the percentage of baseline listed in the table at paragraph (a)(1) of this 

section. The following companies will receive the amounts listed below in both 2013 and 2014: 
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2,374,846 kg of HCFC-22 consumption allowances and 2,305,924 kg of HCFC-22 production 

allowances to Arkema; 1,170 kg of HCFC-142b consumption allowances to DuPont; 29,146 kg 

of HCFC-142b consumption allowances and 53,549 kg of HCFC-142b production allowances to 

Honeywell; 578,948 kg of HCFC-22 consumption allowances to Solvay Fluorides; and 144,900 

kg of HCFC-142b production allowances to Solvay Solexis. 

* * * * * 

4. Amend §82.23 by revising paragraphs (a)(ii)(A), (b), and (d) to read as follows: 

§82.23 Transfers of allowances of class II controlled substances. 

(a) * * * (ii) The Administrator will determine whether the records maintained by EPA indicate 

that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the 

date the transfer claim is processed. The transfer claim is the quantity (in kilograms) to be 

transferred plus 0.1 percent of that quantity. The Administrator will take into account any 

previous transfers, any production, and allowable imports and exports of class II controlled 

substances reported by the transferor. Within three working days of receiving a complete transfer 

claim, the Administrator will take action to notify the transferor and transferee as follows:

 (A) The Administrator will issue a notice indicating that EPA does not object to the transfer if 

EPA's records show that the transferor has sufficient unexpended allowances to cover the 

transfer claim. In the case of transfers of production or consumption allowances, EPA will 

reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 

0.1 percent of that quantity. In the case of transfers of export production or Article 5 allowances, 

EPA will reduce the transferor's balance of unexpended allowances, respectively, by the quantity 

to be transferred plus 0.1 percent of that quantity. The transferor and the transferee may proceed 

with the transfer when EPA issues a no objection notice. However, if EPA ultimately finds that 

the transferor did not have sufficient unexpended allowances to cover the claim, the transferor 
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and transferee, where applicable, will be held liable for any knowing violations of the regulations 

of this subpart that occur as a result of, or in conjunction with, the improper transfer. 

* * * * * 

 (b) Inter-pollutant transfers. (1) Effective January 1, 2003, a person (transferor) may convert 

consumption allowances, production allowances or Article 5 allowances for one class II 

controlled substance to the same type of allowance for another class II controlled substance listed 

in Appendix B of this subpart, following the procedures described in paragraph (b)(3) of this 

section. 

* * * * * 

(d) Permanent transfers. The procedures in paragraph (a) of this section apply to permanent 

inter-company transfers of baseline production allowances or baseline consumption allowances. 

A person receiving a permanent transfer of baseline production allowances or baseline 

consumption allowances (the transferee) for a specific class II controlled substance will be the 

person who has their baseline allowances adjusted in accordance with phaseout schedules in this 

subpart. No person may conduct permanent inter-pollutant transfers of baseline production 

allowances or baseline consumption allowances. 

* * * * * 
ATTACHMENT 2 

EO12866_CAA Part 82A 2060 AQ98 FINAL_FRN_20130305_changes.docx 
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EO12866_CAA Part 82A 2060 AQ98 FINAL_FRN_20130305 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 82 

[EPA-HQ-OAR-2011-0354; FRL-XXXX-X] 

RIN 2060-AQ98 

Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export 

AGENCY: Environmental Protection Agency [EPA]. 

ACTION: Final rule. 

SUMMARY: EPA is adjusting the allowance system controlling U.S. consumption and 

production of hydrochlorofluorocarbons (HCFCs) as a result of a recent2010 Court decision 

vacating a portion of the 2009 final rule titled “Protection of Stratospheric Ozone: Adjustments 

to the Allowance System for Controlling HCFC Production, Import, and Export.” EPA interprets 

the Court’s vacatur as applying to the part of the rule that establishes the company-by-company 

baselines and calendar year allowances for HCFC-22 and HCFC-142b. On August 5, 2011, EPA 

published an interim final rule allocating allowances for 2011. Today’s action relieves the 

regulatory ban on production and consumption of these two chemicals following the Court’s 

vacatur by establishing company-by-company HCFC-22 and HCFC-142b baselines and 

allocating production and consumption allowances for 2012-2014. 

DATES: This final rule is effective upon [INSERT DATE OF PUBLICATION]]. 

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQOAR-2011-0354. All documents in the docket are listed on the www.regulations.gov website. 

Although listed in the index, some information is not publicly available, e.g., CBI or other 

information whose disclosure is restricted by statute. Certain other material, such as copyrighted 
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material, is not placed on the Internet and will be publicly available only in hard copy form. 

Publicly available docket materials are available either electronically through 

www.regulations.gov or in hard copy at the Air and Radiation Docket and Information Center, 

EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 

holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the 

telephone number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Luke H. Hall-Jordan by telephone at (202) 

343-9591, or by e-mail at hall-jordan.luke@epa.gov, or by mail at U.S. Environmental 

Protection Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania Ave., NW, 

Washington, DC, 20460. You may also visit the website of EPA’s Stratospheric Protection 

Division at www.epa.gov/ozone/strathome.html for further information about EPA’s 

Stratospheric Ozone Protection regulations, the science of ozone layer depletion, and related 

topics. 

SUPPLEMENTARY INFORMATION: 

Effective Date. This rule concerns Clean Air Act (CAA) restrictions on the consumption 

and production of hydrochlorofluorocarbon (HCFC)-22 and HCFC-142b during 2012-2014. 

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally 

provides that rules may not take effect earlier than 30 days after they are published in the Federal 

Register. EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which 

states: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly 

provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) 

of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies 

underlying APA section 553(d) in making this rule effective [INSERT DATE OF 

PUBLICATION]. APA section 553(d) allows an effective date less than 30 days after 
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publication for any action “that grants or recognizes an exemption or relieves a restriction,” (5 

U.S.C. 553(d)(1)). Since today's action relieves a restriction from the regulatory ban on the 

production and consumption of HCFC-22 and HCFC-142b in the U.S., EPA is making this 

action effective immediately upon publication to ensure the availability of these HCFCs for 

servicing air conditioning and refrigeration equipment. 

Acronyms and Abbreviations. The following acronyms and abbreviations are used in this 

document. 

CAA – Clean Air Act 

CAAA – Clean Air Act Amendments of 1990 

CFC – Chlorofluorocarbon 

CDM – Clean Development Mechanism 

CFR – Code of Federal Regulations 

EPA – Environmental Protection Agency 

FR – Federal Register 

HCFC – Hydrochlorofluorocarbon 

HVAC – Heating, Ventilating, and Air Conditioning 

Montreal Protocol – Montreal Protocol on Substances that Deplete the Ozone Layer 

MOP – Meeting of the Parties 

MT – Metric Ton 

ODP – Ozone Depletion Potential 

ODS – Ozone-Depleting Substances 

Party – States and regional economic integration organizations that have consented to be bound 

by the Montreal Protocol on Substances that Deplete the Ozone Layer

Organization of This Document. The following outline is provided to aid in locating 

information in this preamble. 
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I. Does This Action Apply to Me? 

II. Summary of This Final Action 

III. Background 

A. How Does the Montreal Protocol Phase Out HCFCs? 

B. How Does the Clean Air Act Phase Out HCFCs? 

C. What Sections of the Clean Air Act Apply to This Rulemaking? 

D. How Does This Action Relate to the Recent2010 Court Decision? 

IV. How Is EPA Allocating HCFC-22 and HCFC-142b Allowances for 2012-2014? 

A. What Baselines Is EPA Using for HCFC-22 and HCFC-142b Allowances? 

1. What Baselines Is EPA Using for 2012-2014? 

2. What Baselines Is EPA Considering for 2015-2019? 

B. What Factors Did EPA Consider in Determining Allocation Amounts for HCFC22 and HCFC-142b? 

1. How Is EPA Adjusting Estimated Servicing Need to Account for Surplus 

Inventory from Past Years? 

2. How Is EPA Adjusting Allowances to Encourage Recovery, Reclamation 

and Reuse? 

3. How Is EPA Accounting for Recovery and Reuse of HCFC-22 in the 

Supermarket Industry? 

4. Did EPA Consider Providing Allowances to Small Businesses in This 

Final Action? 

5. Does the Installation of Dry-shipped HCFC-22 Equipment Affect the 

Phaseout of HCFC-22? 

6. How Is EPA Addressing the Court’s Decision with Regard to 2010 HCFC 

Allowances? 

7. Does EPA Have to Provide the Same Percentage of Baseline for 

Production Allowances as It Does for Consumption Allowances? 

C. How Many HCFC-22 and HCFC-142b Allowances Is EPA Allocating in 2012- 

 2014? 

1. How Many HCFC-22 Consumption Allowances Is EPA Allocating in 

2012-2014? 

2. How Many HCFC-22 Production Allowances Is EPA Allocating in 2012-

2014? 

3. How Many HCFC-142b Consumption and Production Allowances Is EPA 

Allocating in 2012-2014? 

4. How Does the Aggregate Allocation for HCFC-22 and HCFC-142b 

Translate Entity-by-Entity? 

V. How Is EPA Changing the Regulations Governing Transfers of Class II Allowances? 

A. How Is EPA Changing the Regulations Governing Permanent Transfers of Class 

II Allowances? 

B. How Is EPA Changing the Regulations Governing Transfers of Article 5 Class II 

Allowances? 

VI. Statutory and Executive Order Reviews 
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 A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review 

 B. Paperwork Reduction Act 

 C. Regulatory Flexibility Act 

 D. Unfunded Mandates Reform Act 

 E. Executive Order 13132: Federalism 

 F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments 

 G. Executive Order 13045: Protection of Children from Environmental Health and 

Safety Risks 

 H. Executive Order 13211: Actions Concerning Regulations That Significantly 

Affect Energy Supply, Distribution, or Use 

 I. National Technology Transfer and Advancement Act 

 J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

 K. Congressional Review Act 

I. Does This Action Apply to Me? 

This rule may affect the following categories: 

- Industrial Gas Manufacturing entities (NAICS code 325120), including 

fluorinated hydrocarbon gases manufacturers and reclaimers; 

- Other Chemical and Allied Products Merchant Wholesalers (NAICS code 

422690), including chemical gases and compressed gases merchant 

wholesalers; 

- Air-Conditioning and Warm Air Heating Equipment and Commercial and 

Industrial Refrigeration Equipment Manufacturing entities (NAICS code 

333415), including air-conditioning equipment and commercial and industrial 

refrigeration equipment manufacturers; 

- Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS 

code 423730) , including air-conditioning (condensing unit, compressors) 

merchant wholesalers; 
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- Electrical and Electronic Appliance, Television, and Radio Set Merchant 

Wholesalers (NAICS code 423620), including air-conditioning (room units) 

merchant wholesalers; and 

- Plumbing, Heating, and Air-Conditioning Contractors (NAICS code 238220), 

including central air-conditioning system and commercial refrigeration 

installation; HVAC contractors. 

This list is not intended to be exhaustive, but rather provides a guide for readers regarding 

entities likely to be regulated by this action. This table lists the types of entities that could 

potentially be regulated by this action. Other types of entities not listed in this table could also be 

affected. To determine whether your facility, company, business organization, or other entity is 

regulated by this action, you should carefully examine these regulations. If you have questions 

regarding the applicability of this action to a particular entity, consult the person listed in the 

“FOR FURTHER INFORMATION CONTACT” section. 

II. Summary of This Final Action 

In today’s final rule, EPA is issuing HCFC-22 and HCFC-142b allowances for the years 

2012, 2013 and 2014 in the wake of the U.S. Court of Appeals for the District of Columbia 

Circuit (Court) decision in Arkema v. EPA (618 F.3d 1, D.C. Cir. 2010). As discussed in this

preamble and in the proposed rule (77 FR 237), the Court vacated HCFC-22 and HCFC-142b 

company-by-company baseline and calendar-year allowances for 2012-2014. Baselines and 

calendar-year allowances for these two substances were originally finalized in a December 15, 

2009, rule (“2009 Final Rule,” 74 FR 66412). 

EPA is finalizing HCFC-22 and HCFC-142b baseline allowances that incorporate the 

inter-pollutant transfers made by Arkema, Inc., Solvay Fluorides, LLC, and Solvay Solexis, Inc., 

(Arkema and Solvay) in 2008, and is setting calendar-year allowances for the 2012-2014 control 
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periods. EPA is providing fewer calendar-year HCFC-22 consumption allowances1 and more 

calendar-year HCFC-22 production allowances2 than in the 2009 Final Rule. The agency 

determined that the need for virgin HCFC-22 in the U.S. is lower than EPA anticipated in the 

2009 Final Rule and is adjusting consumption allowances accordingly. EPA anticipates this 

adjustment will foster a smooth transition away from ozone-depleting HCFC-22. While EPA is 

reducing domestic consumption (i.e. production and import for U.S. use), under the recalculated 

baselines, the overall production allowances will increase. the agency recognizes thatBecause

other countries have different approaches to phasing out HCFC-22, EPA considers that this 

increase in . As such, EPA is increasing the number of production allowances to will also ensure 

that U.S. companies can continue to meet demand for HCFCs in global markets. This supports 

the Montreal Protocol’s overall goal of limiting need for new production capacity for controlled 

chemicals by allowing existing producers scope to better meet the needs of global markets. 

Additionally, EPA has determined that in the narrow circumstance of the Court’s vacatur of the 

baselines in the 2009 Final Rule, it must provide meaningful compensation for 2010 calendaryear HCFC-22 and HCFC-142b allowances that companies would have received under the 

adjusted baselines. EPA will issue recoupment allowances for that purpose in 2013 and 2014. 

 EPA is also updating HCFC-142b baselines and annual allowances and is allocating 

approximately the same amount of calendar-year consumption allowances as in the 2009 Final 

Rule. Due to the recalculation of HCFC-142b baselines, calendar-year HCFC-142b production 

allowances are higher than in the 2009 Final Rule, but are have been calculated using the same 

methodology. Therefore, Wwhile the percentage of baseline issued for HCFC-142b is the same 

for both consumption and production allowances, the recalculated production baseline is now 

significantly larger than the consumption baseline, which is why there are moreresulting in an 

 

1

 Consumption allowances permit an entity to produce and/or import virgin HCFCs in a given control period (i.e., 

calendar year). 

2

 Production allowances permit an entity to produce virgin HCFCs in a given control period. Domestic production of 

HCFCs requires the use of both production and consumption allowances. 
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overall increase in calendar-year production allowances than incompared with the 2009 Final 

Rule. 

 Finally, EPA is modifying the transfer language at 40 CFR 82.23 to more explicitly 

reflect EPA’s policy on inter-pollutant HCFC allowance transfers; that is, that inter-pollutant 

HCFC transfers can occur only on an annual basis going forward. 

 All other aspects of the 2009 Final Rule not addressed in this rulemaking are unaffected, 

including, but not limited to: HCFC-123, HCFC-124, HCFC-225ca and HCFC-225cb 

allowances, the formula for determining calendar-year Article 5 allowances, and the use and 

introduction into interstate commerce restrictions on HCFC-22 and HCFC-142b. This preamble 

includes a summary of comments EPA received in response to the proposed rule, as well as 

comments to the 2011 Interim Final Rule that are relevant to this current rulemaking. A full 

response to comments document (“Response to Comments”) is available in the docket for this 

rulemaking. 

III. Background 

EPA is undertaking this rulemaking as a result of the decision issued by the Court in 

Arkema v. EPA (618 F.3d 1, D.C. Cir. 2010) regarding the December 15, 2009, final rule titled 

“Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export,” (“2009 Final Rule,” 74 FR 66412). Certain allowance 

holders affected by the 2009 Final Rule filed petitions for judicial review of the rule under 

section 307(b) of the Clean Air Act. Among other arguments, the petitioners contended that the 

rule was impermissibly retroactive because in setting the baselines for the new regulatory period, 

EPA did not take into account certain inter-pollutant baseline transfers that petitioners had 

performed during the prior regulatory period. 

The Court issued a decision on August 27, 2010, agreeing with petitioners that “the 

[2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule,” 
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(Arkema v. EPA, 618 F.3d at 3). The Court vacated the 2009 Final Rule in part, “insofar as it 

operates retroactively,” and remanded it to EPA “for prompt resolution,” (618 F.3d at 10). The 

Court withheld the mandate for the decision pending the disposition of any petition for rehearing. 

EPA’s petition for rehearing was denied on January 21, 2011. The mandate issued on February 4, 

2011. More detail is provided on the case and EPA’s interpretation of the Court’s decision in 

section III.D. of this preamble. 

For 2011, EPA addressed the Court’s partial vacatur in an August 5, 2011, interim final 

rule, “Protection of Stratospheric Ozone: Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export,” (“2011 Interim Final Rule,” 76 FR 47451). Today’s 

final rule follows that action, and establishes a path forward for the remainder of the regulatory 

period ending on December 31, 2014. 

A. How Does the Montreal Protocol Phase Out HCFCs? 

The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) 

is the international agreement aimed at reducing and eventually eliminating the production and 

consumption of stratospheric ozone-depleting substances (ODS). The U.S. was one of the 

original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 12, 

1988. Congress then enacted, and President George H.W. Bush signed into law, the Clean Air 

Act Amendments of 1990 (CAAA), which included Title VI on Stratospheric Ozone Protection, 

codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its 

obligations under the Montreal Protocol. Title VI includes restrictions on production, 

consumption, and use of ODS that are subject to acceleration if “the Montreal Protocol is 

modified to include a schedule to control or reduce production, consumption, or use . . . more 

rapidly than the applicable schedule” prescribed by the statute (CAA §606). Both the Montreal 

Protocol and the Clean Air Act (CAA) define consumption as production plus imports minus 

exports. 
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 In 1990, as part of the London Amendment to the Montreal Protocol, the Parties 

identified HCFCs as “transitional substances” to serve as temporary, lower ozone depletion 

potential (ODP) substitutes for CFCs and other ODS. EPA similarly viewed HCFCs as 

“important interim substitutes that will allow for the earliest possible phaseout of CFCs and other 

Class I substances”3 (58 FR 65026). In 1992, through the Copenhagen Amendment to the 

Montreal Protocol, the Parties created a detailed phaseout schedule for HCFCs beginning with a 

cap on consumption for industrialized countries not operating under Article 5 of the Montreal 

Protocol (non-Article 5 Parties), a schedule to which the U.S. adheres. The consumption cap for 

each non-Article 5 Party was set at 3.1 percent (later tightened to 2.8 percent) of a Party’s CFC 

consumption in 1989, plus a Party’s consumption of HCFCs in 1989 (weighted on an ODP 

basis). Based on this formula, the HCFC consumption cap for the U.S. was 15,240 ODPweighted metric tons (MT), effective January 1, 1996. This became the U.S. consumption 

baseline for HCFCs. 

The 1992 Copenhagen Amendment created a schedule of graduated reductions and 

provided for the eventual phaseout of HCFC consumption (Copenhagen, 23-25 November, 1992, 

Decision IV/4). Prior to a later adjustment in 2007, the schedule initially allowed a non-Article 5 

country to consume 65 percent of its consumption cap in 2004, followed by 35 percent in 2010, 

10 percent in 2015, 0.5 percent in 2020 for the servicing of existing refrigeration and airconditioning equipment, and a total phaseout in 2030. 

The Copenhagen Amendment did not cap HCFC production. In 1999, the Parties created 

a cap on production for non-Article 5 Parties through an amendment to the Montreal Protocol 

agreed by the Eleventh Meeting of the Parties (Beijing, 29 November – 3 December, 1999, 

Decision XI/5). The cap on production was set at the average of: (a) 1989 HCFC production plus 

2.8 percent of 1989 CFC production, and (b) 1989 HCFC consumption plus 2.8 percent of 1989 

 

3

 Class I refers to the controlled substances listed in appendix A to 40 CFR part 82 subpart A. Class II refers to the 

controlled substances listed in appendix B to 40 CFR part 82 subpart A. 
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CFC consumption. Based on this formula, the U.S. HCFC production cap was 15,537 ODPweighted MT, effective January 1, 2004. This became the U.S. production baseline for HCFCs. 

To further protect human health and the environment, the Parties to the Montreal Protocol 

adjusted the Montreal Protocol’s phaseout schedule for HCFCs at the 19th Meeting of the Parties 

in September 2007. In accordance with Article 2(9)(d) of the Montreal Protocol, the adjustment 

to the phaseout schedule was effective on May 14, 2008.4

 As a result of the 2007 Montreal Adjustment (reflected in Decision XIX/6), the U.S. and 

other non-Article 5 countries may only consume 25 percent of their HCFC baseline beginning in 

2010, rather than 35 percent. Other milestones remain the same. The adjustment also resulted in 

a phaseout schedule for HCFC production that parallels the consumption phaseout schedule. All 

production and consumption for non-Article 5 Parties is phased out by 2030. 

 Decision XIX/6 also adjusted the provisions for Parties operating under paragraph 1 of 

Article 5 (developing countries): (1) to set HCFC production and consumption baselines based 

on the average of 2009-2010 production and consumption, respectively; (2) to freeze HCFC 

production and consumption at those baselines in 2013; and (3) to add stepwise reductions to 90 

percent of baseline by 2015, 65 percent by 2020, 32.5 percent by 2025, and 2.5 percent by 2030 

– allowing, between 2030 and 2040, an annual average of no more than 2.5 percent to be 

produced or imported solely for servicing existing air-conditioning and refrigeration equipment. 

All production and consumption for Article 5 Parties will be phased out by 2040. Decision 

XIX/6, included in the Report of the Nineteenth Meeting of the Parties to the Montreal Protocol 

on Substances that Deplete the Ozone Layer, is available in the docket for this rulemaking. 

 

4

 Under Article 2(9)(d) of the Montreal Protocol, an adjustment enters into force six months from the date the 

depositary (the Ozone Secretariat) circulates it to the Parties. The depositary accepts all notifications and documents 

related to the Protocol and examines whether all formal requirements are met. In accordance with the procedure in 

Article 2(9)(d), the depositary communicated the adjustment to all Parties on November 14, 2007. The adjustment 

entered into force and became binding for all Parties on May 14, 2008. 
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 In addition, in the Montreal Adjustments, Parties agreed to adjust Article 2F to allow 

non-Article 5 countries to produce “up to 10 percent of baseline levels” for export to Article 5 

countries “in order to satisfy basic domestic needs” until 2020. Paragraph 14 of Decision XIX/6 

notes that by no later than 2015, the Parties would consider “further reduction of production for 

basic domestic needs” in 2020 and beyond. Under paragraph 13 of Decision XIX/6, the Parties 

will review in 2015 and 2025, respectively, the need for the “servicing tails” for non-Article 5 

and Article 5 countries. The term “servicing tail” refers to an amount of HCFCs needed to 

service existing equipment, such as certain types of air-conditioning and refrigeration appliances. 

B. How Does the Clean Air Act Phase Out HCFCs? 

The U.S. has chosen to implement the Montreal Protocol phaseout schedule on a 

chemical-by-chemical basis. In 1992, environmental and industry groups petitioned EPA to 

implement the required phaseout by eliminating the most ozone-depleting HCFCs first. Based on 

the available data at that time, EPA believed the U.S. could meet, and possibly exceed, the 

required Montreal Protocol reductions through a chemical-by-chemical phaseout that employed a 

“worst-first” approach, which focuses on phasing out certain chemicals with higher ODP earlier 

than others. In 1993, as authorized by section 606 of the CAA, the U.S. established a phaseout 

schedule that eliminated HCFC-141b first and would greatly restrict HCFC-142b and HCFC-22 

next, followed by restrictions on all other HCFCs and ultimately a complete phaseout (58 FR 

15014, March 18, 1993; 58 FR 65018, December 10, 1993). 

 On January 21, 2003, EPA promulgated regulations (“2003 Final Rule,” 68 FR 2820) to 

ensure compliance with the first reduction milestone in the HCFC phaseout: the requirement that 

by January 1, 2004, the U.S. reduce HCFC consumption by 35 percent and freeze HCFC 

production. In the 2003 Final Rule, EPA established chemical-specific consumption and 

production baselines for HCFC-141b, HCFC-22, and HCFC-142b for the initial regulatory 

period ending December 31, 2009. Section 601(2) states that EPA may select “a representative 
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calendar year” to serve as the company baseline for HCFCs. In the 2003 Final Rule, EPA 

concluded that because the entities eligible for allowances had differing production and import 

histories, no single year was representative for all companies. Therefore, EPA assigned an 

individual consumption baseline year to each company by selecting its highest ODP-weighted 

consumption year from among the years 1994 through 1997. EPA assigned individual production 

baseline years in the same manner. EPA also provided for new entrants that began importing 

after the end of 1997 but before April 5, 1999, the date the advanced notice of proposed 

rulemaking was published. EPA took this action to ensure that small businesses that might not 

have been aware of the impending rulemaking would be able to continue in the HCFC market. 

 The 2003 Final Rule apportioned production and consumption baselines to each company 

in amounts equal to the company’s highest “production year” or “consumption year,” as 

described above. It completely phased out the production and import of HCFC-141b by granting 

zero percent of that substance’s baseline for production and consumption in the table at 40 CFR 

82.16. EPA did, however, create a petition process to allow applicants to request small amounts 

of HCFC-141b until 2015. The 2003 Final Rule also granted 100 percent of the baselines for 

production and consumption of HCFC-22 and HCFC-142b for each of the years 2003 through 

2009. EPA was able to allocate allowances for HCFC-22 and HCFC-142b at 100 percent of 

baseline because, in light of the concurrent complete phaseout of HCFC-141b, the allocations for 

HCFC-22 and HCFC-142b, combined with projections for consumption of all other HCFCs, 

remained below the 2004 cap of 65 percent of the U.S. baseline. 

 EPA allocates allowances for specific years; they are valid between January 1 and 

December 31 of a given control period (i.e., calendar year). Prior to December 15, 2009, EPA 

had not allocated any HCFC allowances for 2010 or beyond. The regulations at section 82.15(a) 

and (b) only addressed the production and import of HCFC-22 and HCFC-142b for the years 

2003-2009. Absent the granting of calendar-year allowances, section 82.15 would have 
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prohibited the production and import of HCFC-22 and HCFC-142b after December 31, 2009. 

The 2009 Final Rule allowed for continued production and consumption, at specified amounts, 

of HCFC-142b, HCFC-22, and other HCFCs not previously included in the allowance system, 

for the 2010-2014 control periods. 

 In the U.S., an allowance is the unit of measure that controls production and consumption 

of ODS. EPA establishes company-by-company baselines (also known as “baseline allowances”) 

and allocates calendar-year allowances equal to a percentage of the baseline for specified control 

periods. A calendar-year allowance represents the privilege granted to a company to produce or 

import one kilogram (not ODP-weighted) of the specific substance. EPA allocates two types of 

calendar-year allowances – production allowances and consumption allowances. “Production 

allowance” and “consumption allowance” are defined at section 82.3. To produce an HCFC for 

which allowances have been allocated, an allowance holder must expend both production and 

consumption allowances. To import an HCFC for which allowances have been allocated, an 

allowance holder must expend consumption allowances. An allowance holder exporting HCFCs 

for which it has expended consumption allowances may request a refund of those consumption 

allowances by submitting proper documentation and receiving approval from EPA. 

 Since EPA is implementing the phaseout on a chemical-by-chemical basis, it allocates 

and tracks production and consumption allowances on an absolute kilogram basis for each 

chemical. Upon EPA approval, an allowance holder may transfer calendar-year allowances of 

one type of HCFC for calendar-year allowances of another type of HCFC, with transactions 

weighted according to the ODP of the chemicals involved. Pursuant to section 607 of the CAA, 

EPA applies an offset to each HCFC transfer by deducting 0.1 percent from the transferor’s 

allowance balance. The offset benefits the ozone layer since it “results in greater total reductions 

in the production in each year of . . . class II substances than would occur in that year in the 

absence of such transactions” (42 U.S.C. 7671f). 
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The U.S. remained comfortably below the aggregate HCFC cap through 2009. The 2003 

Final Rule announced that EPA would allocate allowances for 2010-2014 in a subsequent action 

and that those allowances would be lower in aggregate than for 2003-2009, consistent with the 

next stepwise reduction for HCFCs under the Montreal Protocol. EPA stated its intention to 

determine the number of allowances that would be needed for HCFC-22 and HCFC-142b, 

bearing in mind that other HCFCs would also contribute to total HCFC consumption. EPA noted 

that it would likely achieve the 2010 stepwise reduction by applying a percentage reduction to 

the HCFC-22 and HCFC-142b baselines. EPA subsequently reviewed market conditions to 

estimate servicing needs and market adjustments in the use of HCFCs, including HCFCs for 

which EPA did not establish baselines in the 2003 Final Rule. 

In the 2009 Final Rule, EPA estimated the need for HCFC-22 during the 2010-2014 

regulatory period, and determined the percentage of that need for which it was appropriate to 

allocate allowances. As described in section IV.B.3. of the proposed rule (77 FR 237), EPA 

determined that the percentage of the estimated need allocated in the form of allowances should 

not remain constant from year to year but rather should decline on an annual basis. For 2010, 

EPA allocated allowances equal to 80 percent of the estimated need for HCFC-22, concluding 

that reused, recycled, and reclaimed material could meet the remaining 20 percent. Under the 

2009 Final Rule, the percentage of estimated need for which there was no allocation, and 

therefore would need to be met through recycling and reclamation, rose from 20 percent in 2010 

to 29 percent in 2014 to ensure the U.S. market would have a viable reclamation industry and 

could meet the 2015 stepwise reduction under the Montreal Protocol. 

As explained in the Background section, EPA is undertaking this rulemaking as a result 

of the decision issued by the Court in Arkema (618 F.3d 1, D.C. Cir. 2010), in which the Court 

vacated portions of the 2009 Final Rule. 

C. What Sections of the Clean Air Act Apply to This Rulemaking? 
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 Several sections of the CAA apply to this rulemaking. Section 605 of the CAA phases out 

production and consumption and restricts the use of HCFCs in accordance with the schedule set 

forth in that section. As discussed in the 2009 Final Rule (74 FR 66416), section 606 provides 

EPA authority to set a more stringent phaseout schedule than the schedule in section 605 based 

on an EPA determination regarding current scientific information or the availability of 

substitutes, or to conform to any acceleration under the Montreal Protocol. EPA previously set a 

more stringent schedule than the section 605 schedule through a rule published December 10, 

1993 (58 FR 65018). Through the 2009 Final Rule, EPA accelerated the section 605 schedule to 

reflect the acceleration under the Montreal Protocol as agreed to under the Montreal Protocol in 

September 2007. The more stringent schedule established in that rule is unaffected by the 

recent2010 Court decision and is therefore still in effect. 

Section 606 provides EPA authority to promulgate regulations that establish a schedule 

for production and consumption that is more stringent than what is set forth in section 605 if: 

“(1) based on an assessment of credible current scientific information (including any assessment 

under the Montreal Protocol) regarding harmful effects on the stratospheric ozone layer 

associated with a class I or class II substance, the Administrator determines that such more 

stringent schedule may be necessary to protect human health and the environment against such 

effects, (2) based on the availability of substitutes for listed substances, the Administrator 

determines that such more stringent schedule is practicable, taking into account technological 

achievability, safety, and other relevant factors, or (3) the Montreal Protocol is modified to 

include a schedule to control or reduce production, consumption, or use of any substance more 

rapidly than the applicable schedule under this title.” It is only necessary to meet one of the three 

criteria. In the 2009 Final Rule, EPA determined that all three criteria had been met with respect 

to the schedule for phasing out production and consumption of HCFC-22 and HCFC-142b. 
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As noted in the 2009 Final Rule, while section 606 is sufficient authority for establishing 

a more stringent schedule than the section 605 phaseout schedule, section 614(b) of the CAA 

provides that in the case of a conflict between the CAA and the Montreal Protocol, the more 

stringent provision shall govern. Thus, section 614(b) requires the agency to establish phaseout 

schedules at least as stringent as the schedules contained in the Montreal Protocol. To meet the 

2010 stepdown requirement, EPA is continuing to allocate HCFC allowances at a level that will 

ensure the aggregate HCFC production and consumption will not exceed 25 percent of the U.S. 

baselines. For more discussion of this point, see 74 FR 66416. 

Finally, section 607 addresses transfers of allowances both between companies and 

chemicals. EPA is further clarifying the policy and procedures applicable to inter-pollutant 

transfers in this action, and is making a minor change to the regulations governing inter-pollutant 

transfers to provide additional clarity to stakeholders. 

D. How Does This Action Relate to the Recent2010 Court Decision?

 Certain allowance holders affected by the 2009 Final Rule filed petitions for review in the 

U.S. Court of Appeals for the District of Columbia Circuit. Among other arguments, the 

petitioners, Arkema, Inc., Solvay Fluorides, LLC, and Solvay Solexis, Inc., contended that the 

rule was impermissibly retroactive because in setting the baselines for the new regulatory period, 

EPA did not take into account certain inter-pollutant baseline transfers that petitioners had 

performed during the prior regulatory period. The 2011 Interim Final Rule contained a 

description of those transfers and the EPA approvals of those transfers. As explained in the 2011 

Interim Final Rule, Solvay Solexis, Inc. submitted two Class II Controlled Substance Transfer 

Forms for consumption allowance transfers to Solvay Fluorides, LLC on February 15, 2008, and 

March 4, 2008. Arkema, Inc. submitted two Class II Controlled Substance Transfer Forms for 

consumption and production allowance transfers on April 18, 2008. Each company requested 

EPA’s approval to convert HCFC-142b allowances to HCFC-22 allowances, and checked a box 
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on the EPA transfer form indicating that “baseline” allowances would be transferred. EPA sent 

non-objection notices to Solvay Solexis, Inc. and Solvay Fluorides, LLC on February 21, 2008, 

and March 20, 2008, and to Arkema, Inc. in April 2008. The transfer requests and EPA’s nonobjection notices were attached to petitioners’ court filings and are available in the docket for 

this action. 

 In the Notice of Proposed Rulemaking titled “Protection of Stratospheric Ozone: 

Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” 

published in the Federal Register at 73 FR 78680 on December 23, 2008 (2008 Proposed Rule), 

EPA requested comments on establishing baselines for the 2010-2014 regulatory period “with or 

without” taking into account baseline inter-pollutant transfers made during the 2003-2009 

regulatory period (73 FR 78687). The proposed regulatory text accounted for the inter-pollutant 

transfers discussed above. The increase in HCFC-22 baseline allowances for Arkema, Inc. and 

Solvay Fluorides, LLC presented in the 2008 Proposed Rule resulted in a larger amount of 

HCFC-22 baseline allowances overall and therefore a lower percentage of HCFC-22 baselines 

allocated across the board in each control period. Specifically, the proposed shift resulted in a 16 

percent decrease in allocation share for all other HCFC-22 allowance holders, and increases for 

the petitioners: Arkema and Solvay. 

In the 2009 Final Rule, after considering comments, EPA determined that allowing interpollutant transfers from one regulatory period to become a part of the baseline in the next 

regulatory period could undermine the agency’s chemical-by-chemical phaseout approach and 

encourage market manipulation. EPA also concluded that section 607 of the CAA was best read 

as limiting inter-pollutant transfers to those conducted on an annual basis. For these reasons, 

EPA did not take the 2008 inter-pollutant transfers into account in establishing the baselines for 

the 2009 Final Rule covering 2010-2014. 
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The Court issued a decision on August 27, 2010, agreeing with petitioners that “the 

[2009] Final Rule unacceptably alters transactions the EPA approved under the 2003 Rule” 

(Arkema v. EPA, 618 F.3d at 3). The Court vacated the rule in part, “insofar as it operates 

retroactively,” and remanded to EPA “for prompt resolution,” (618 F.3d at 10). The Court 

withheld the mandate for the decision pending the disposition of any petition for rehearing. On 

November 12, 2010, EPA filed a petition for rehearing, which was denied on January 21, 2011. 

The mandate issued on February 4, 2011. 

EPA presented its interpretation of the Court’s decision with regard to baseline 

allowances and 2011-2014 calendar-year allowances in the 2011 Interim Final Rule (76 FR 

47456). EPA has not changed that interpretation but is repeating it here for ease of reference. 

Because the Court vacated the rule only in part, and because various parts of the rule are 

intertwined, EPA relied on its expertise in administering the HCFC phaseout regulations under 

Title VI of the CAA to determine how to apply the vacatur within the confines of the balance of 

the rule, which was not vacated. First, EPA noted that the rule contains elements that were not at 

issue in the litigation. EPA concluded that the vacatur had no effect on allowances for any 

substances other than HCFC-142b and HCFC-22, since the petitioners’ claims and the opinion 

itself discuss only those two substances. Similarly, EPA concluded that other discrete portions of 

the rule, such as the provisions on use and introduction into interstate commerce, were 

unaffected by the vacatur. 

The baselines for HCFC-142b and HCFC-22 were clearly at issue in the litigation and 

indeed are the focus of the Court’s opinion. The Court found that “the agency’s refusal to 

account for the Petitioners’ baseline transfers of inter-pollutant allowances in the Final Rule is 

impermissibly retroactive,” (618 F.3d at 9). Because baseline and calendar-year allowances are 
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inextricably linked,5 EPA determined that the Court’s vacatur voided the HCFC-22 and HCFC142b baselines in 40 CFR 82.17 and 82.19 as well as the percentage of baseline allocated for 

those specific substances in 40 CFR 82.16 for all companies listed in those sections.6

 This meant 

that in the absence of this rule, production and import of these two substances in 2012 were 

prohibited under 40 CFR 82.15. Recognizing this scenario, on January 20, 2012, EPA sent letters

in January 2012 and January 2013 to affected stakeholders informing them that the agency would 

exercise enforcement discretion for a limited period provided their production and import did not 

exceed specified levels and provided that they adhered to additional conditions. 

In determining the meaning of the Court’s vacatur, EPA considered whether this 

interpretation was consistent with what the Court intended and a good fit for the specific 

circumstances, which include the goals and design of the HCFC allowance program and the 

basic structure of the 2009 Final Rule. While this interpretation is appropriate in this instance, it 

is possible that another interpretation would be more appropriate in a case involving a program 

with different goals, design, or structure. 

EPA’s initial response to the Court’s partial vacatur was to issue the 2011 Interim Final 

Rule (76 FR 47451). That rule allocated allowances for 2011 only. Through today’s notice, EPA 

is addressing the Court’s decision as it relates to the remainder of the regulatory period ending 

December 31, 2014. 

IV. How Is EPA Allocating HCFC-22 and HCFC-142b Allowances for 2012-2014? 

EPA is continuing the system established in previous rulemakings (68 FR 2820, 74 FR 

66412, 76 FR 47451) for HCFC production and import in the U.S. The process works as follows 

for each HCFC: First, all the company-specific baselines listed in the tables at 40 CFR 82.17 and 

 

5

 Baseline and calendar-year allocations are inextricable because calendar-year allocations are expressed as a 

percentage of baseline, and the percentage of baseline allocated for a specific substance varies depending on the sum 

of all company baselines for that substance. The process is described in greater detail in section IV. 

6

 The companies’ allocations are inter-related because, as noted in footnote 5, the percentage of baseline allocated 

varies according to the sum of the company-specific baselines. 
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82.19 are added to determine the aggregate amount of baseline production and consumption, 

respectively. Second, EPA determines how many consumption allowances the market needs for a 

given year, taking into account sources other than new production and import, and then divides 

that amount by the aggregate amount of baseline allowances. The resulting percentage is listed in 

the table at section 82.16 and becomes what each company is allowed to consume in a given 

control period. For example, a company with 100,000 kg of HCFC-22 baseline consumption 

allowances would multiply that number by the percentage allowed for the year (for example, 

17.7 percent in 2012) to determine its calendar-year consumption allowance is 17,700 kg. 

In this rulemaking EPA is (1) establishing 2012-2014 company-by-company 

consumption and production baselines for HCFC-22 and HCFC-142b in the tables at 40 CFR 

82.17 and 82.19 identical to the baselines established in the 2011 Interim Final Rule (76 FR 

47468); (2) allocating company-by-company production and consumption allowances for these 

substances for 2012-2014 by establishing allowed percentages of production and consumption 

baselines in two tables at section 82.16; and (3) revising the regulatory text at 40 CFR 82.23 to 

make the procedure for all future inter-pollutant transfers clear. EPA will address the baselines 

and allocations for the control periods beyond 2014 at a later date. All aspects of the 2009 Final 

Rule promulgated on December 15, 2009, (74 FR 66412) that are not addressed in this final rule 

are unchanged. 

EPA again notes that beginning January 1, 2015, section 605 of the CAA prohibits the 

use and introduction into interstate commerce of any HCFC listed as a class II substance unless it 

“(1) has been used, recovered and recycled; (2) is used and entirely consumed (except for trace 

quantities) in the production of other chemicals; (3) is used as a refrigerant in appliances 

manufactured prior to January 1, 2020; or (4) is listed as acceptable for use as a fire suppression 

agent for nonresidential applications in accordance with section 612(c).” In addition, EPA’s 
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regulations at 40 CFR 82.15 restricted use and introduction into interstate commerce of HCFC141b, HCFC-142b, and HCFC-22 beginning in 2010, with limited exceptions. 

A. What Baselines Is EPA Using for HCFC-22 and HCFC-142b Allowances? 

 In the January 4, 2012, notice, EPA proposed to establish 2012-2014 company-bycompany consumption and production baselines for HCFC-22 and HCFC-142b that were 

identical to the baselines established in the 2011 Interim Final Rule (see 40 CFR 82.17 and 

82.19). EPA also provided advance notice that it would consider updating baselines for the 2015-

2019 regulatory period, especially if there is an environmental benefit to doing so. 

1. What Baselines Is EPA Using for 2012-2014? 

 Four companies commented on how EPA should proceed with establishing baselines for 

2012-2014. Arkema and Solvay both support EPA’s inclusion of past inter-pollutant transfers of 

baseline allowances, and believe that the proposed baselines are fully consistent with the 

CourtArkema decision. On the other hand, DuPont and Honeywell state that the Court’s decision 

in Arkema does not require EPA to recognize the inter-pollutant baseline transfers beyond 2009, 

nor does it address the validity of the 2008 transfers. These commenters also state that 

recognizing these transfers beyond 2009 is contrary to section 607, EPA’s transfer regulations, 

and the agency’s interpretation of those regulations for chemicals that are being phased down. In 

addition, they assert that if EPA does take those transfers into account in establishing baselines 

for 2012-2014, the agency should only allocate the percentage of the transferred baselines that 

would be allocated if the baselines had never been converted from HCFC-142b to HCFC-22. 

They state that recognizing the transfers has the effect of increasing the baseline share of the 

petitioners in Arkema and reducing the share of other companies in violation of their due process 

rights. Finally, they state that under the Arkema decision, their share of the baseline is vested. 

 EPA cited several reasons why it would prefer to set baselines without taking into 

account inter-pollutant transfers in the 2009 Final Rule (74 FR 66420), in the Response to 

Formatted: Font: Italic
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Comments document included in the record for that rulemaking and in the 2011 Interim Final 

Rule (76 FR 47451). These considerations remain important, and are the basis for EPA’s policy 

on future inter-pollutant transfers, which is discussed in section V of this notice. However, EPA 

must act in accordance with the Court’s holding regarding the 2008 transfers. In Arkema, the 

Court concluded that EPA’s non-objection notices for the 2008 transfers created “vested rights” 

in the transferred baselines, which EPA must reflect in rules governing the current regulatory 

period, at least to the extent such rules continue to use the historical production and consumption 

baselines. The Court explicitly held that “the Agency’s refusal to account for the Petitioners’ 

baseline transfers of interpollutant allowances in the Final Rule is impermissibly retroactive,” 

(Arkema, 618 F.3d at 24). Given the Court’sArkema decision, and after considering public 

comment aboutgiven the scope and meaning of therecent decision, in Honeywell International, 

Inc. v. EPA, D.C. Cir. No. 10-1347 (January 22, 2013) (“Honeywell”), EPA is recognizing the 

2008 transfers in establishing the baselines through 2014. Thus, the baselines finalized for 2012-

2014 in today’s rule are identical to the HCFC-22 and HCFC-142b baselines established in the 

2011 Interim Final Rule. 

The commenters assert that the Arkema decision did not determine the validity of the 

transfers. They further assert that EPA lacked authority to approve permanent inter-pollutant 

baseline transfers, that the 2008 transfers as characterized by the Court are thus invalid, and that 

EPA should not recognize them in setting baselines. The validity of the 2008 transfer approvals 

is beingwas challenged in a case being brought before the U.S. Court of Appeals for the D.C. 

Circuit (Honeywell International v. EPA, Case No. 10-1347).. The brief filed by the agency on 

January 30, 2012, provides further discussion ofresponse to several of the arguments that 

Honeywell and DuPont make in their comments on the proposed rule and is included in the 

docket for this rulemaking. 

Formatted: Underline
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The commenters do not assert that EPA lacked authority to approve inter-pollutant 

transfers whose effects were limited to the regulatory period ending in 2009. Rather, they assert 

that EPA lacked authority to approve inter-pollutant transfers with effects lasting beyond 2009. 

They state that the CourtArkema did not determine the validity of such transfers. Yet the Arkema 

Court itself found, contrary to the Agency’s position, that EPA had “approved permanent 

changes to the baseline as a result of inter-pollutant transfers” and that the Agency could not 

“undo these completed transactions,” (Arkema, 618 F.3d at 23). It is not plausible that the Court 

would have reached this holding if it viewed EPA’s authority to approve inter-pollutant transfers 

with effects beyond the immediate regulatory period as open to debate. As the Court stated in 

Honeywell, “the Arkema Court necessarily concluded that permanent inter-pollutant transfers 

were permissible under the statute” (slip op. at 7). The Honeywell Court noted that it was bound 

by Arkema and denied commenters’ petition for review of the 2008 transfers. The Honeywell

decision is available in the docket for this action. 

Contrary to the commenters’ assertions, section 607 of the CAA is ambiguous with 

regard to whether inter-pollutant transfers may have permanent effects that carry forward to 

subsequent regulatory periods. EPA has discretion under section 607 to determine how to treat 

such transfers. While EPA did not intend its non-objection notices to confer permanence to the 

2008 inter-pollutant transfers, EPA disagrees with commenters’ implication that under section 

607, the agency could not have done so. That would be true only if section 607 expressly 

prohibited permanent inter-pollutant transfers, which it does not. As discussed in more detail in 

section V.A. of this preamble, for policy reasons EPA will approve only annual inter-pollutant 

transfers in the future. EPA also believes that while section 607 is not clear on its face, it is best

interpreted as precluding permanent inter-pollutant transfers, as explained in section V.A. of this 

preamble. As noted by the Court in Arkema, interpreting section 607 to preclude permanent 
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inter-pollutant transfers “may more accurately track the statutory mandate,” (Arkema, 618 F.3d 

at 22). 

 Commenters assert that EPA has departed from its own regulations in proposing to 

recognize the 2008 inter-pollutant transfers in the baselines for 2012-2014. Commenters ignore, 

however, the Court’s interpretation of those regulations. EPA’s intent in the 2003 Rule, which 

established the transfer provisions, was to preclude permanent inter-pollutant transfers of 

baseline allowances (see 68 FR 2835). EPA notes that until the rulemaking that resulted in the 

2009 Final Rule, the agency did not specifically develop a policy on whether inter-pollutant 

transfers could ever carry forward to a new regulatory period following one of the intermediate 

phasedown steps. Nonetheless, the Arkema decision found that the agency’s conclusion in the

2009 Final Rule not to carry inter-pollutant transfers forward to a new regulatory period 

“departed from the policy it had adopted in the 2003 Rule,” (Arkema, 618 F.3d at 6). EPA cannot 

disregard the Court’s holding on the ground that the 2003 Rule prohibited permanent interpollutant transfers where the Court has found otherwise. 

 The commenters are also incorrect that EPA previously interpreted its regulations as 

creating a “phasedown follows the allowance” principle. Commenters assert that under this 

principle, EPA should only allocate the percentage of the transferred baselines allocated for 

HCFC-142b. However, EPA has never adopted such a principle. Preamble statements leading up 

to and accompanying the 2003 Rule refer to the elimination of HCFC-141b baseline upon the 

chemical’s complete phaseout, “regardless of what inter-pollutant transfers had taken place,” (68 

FR 2835). That is a different matter from a partial phasedown, like the phasedown of HCFC-22 

and HCFC-142b in 2010. Additionally, the commenters’ approach runs counter to the way EPA 

allocates allowances as described in section IV of this preamble. 

Finally, the commenters assert that EPA has violated their due process rights by 

decreasing their market share, which they argue is a vested right under Arkema. From a 
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substantive perspective, what they assert is a vested right (i.e., a specific share of allowances) is 

not in fact a vested right, nor is it protected under the due process clause. The Court held that 

EPA’s actions in approving the 2008 transfers created vested rights in the transferred baselines. 

The Court placed particular emphasis on the fact that the Agency took affirmative actions that 

appeared to ratify the transfers: “The Agency’s approval and acknowledgement of Petitioners’ 

actions distinguishes this case from situations where a company’s unilateral business 

expectations are thwarted by a change in the regulatory framework,” (Arkema, 618 F.3d at 20). 

The Court did not examine the issue of whether companies possessed vested rights in baseline or 

calendar-year allowances generally, or in a specific share of allowances. Nor did the Court hold 

that the transferred baselines, baseline allowances generally, or calendar-year allowances, are 

property rights protected under the Due Process Clause. Furthermore, it did not state that 

companies had any right to a specific number of production or consumption allowances. On the 

contrary, the Court noted that “the 2010 stepdown gave the EPA occasion to adjust its 

distribution of allowances,” (Arkema, 618 F.3d at 25). 

EPA’s regulatory definitions specify that production and consumption allowances are 

privileges, not rights (see 40 CFR 82.3). As discussed in Section II, the U.S. is in the process of 

phasing out production and consumption of HCFCs, culminating in a complete phaseout in 2030. 

EPA’s regulations prohibit production and consumption of HCFCs without allowances (40 CFR 

82.16(a), (b)). In the absence of this final rule, no allowances would exist for 2012 or beyond. In 

this regulatory environment, no company has an entitlement to a specific number or share of 

HCFC allowances. 

In addition, under this final rule, commenters are receiving the same number of baseline 

allowances they received under previous HCFC allocation rules. Recognition of the 2008 

transfers in the aggregate HCFC-22 consumption baseline does not require EPA to extract 

baseline allowances from other companies. 
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From a procedural perspective, commenters were given multiple opportunities to 

comment on or challenge the effects of the 2008 transfers at issue in Arkema on baselines for the 

current regulatory period. As noted in Honeywell, they had “notice and an opportunity to present 

[their] views during EPA’s pre-Arkema regulatory proceedings, during the Arkema litigation, and 

during EPA’s subsequent post-Arkema proceedings” (slip op. at 7). They commented on the 

2009 Final Rule, the 2011 Interim Final Rule and the proposal for this final rule. They also had 

the opportunity to intervene in the Arkema lawsuit and the opportunity to challenge the 2011 

Interim Final Rule, in which EPA actually reflected the 2008 transfers in establishing baselines.

A more detailed summary of the comments on this issue, as well as the Agency’s 

response to issues not addressed in the preamble or the briefs, is included in the Response to 

Comments, found in the docket for this rulemaking. 

2. What Baselines Is EPA Considering for 2015-2019? 

Looking ahead to the next regulatory period, the agency received four comments on 

whether it should use more recent production and import data in establishing baselines for 2015-

2019. Two commenters recommend using data from 2005-2007 because these years were used to 

establish baselines in the 2009 Final Rule for newly-controlled HCFCs (74 FR 66412). In 

addition, using the highest production and import levels from 2005-2007 would reflect current 

and stable market conditions. One commenter points out that production and consumption in 

2008 and 2009 were likely affected by the economic downturn, while 2010 and 2011 fall under 

the stepdown established by the 2009 Final Rule. Another commenter believes that updating 

baselines would avoid rewarding companies for attempting to manipulate their baselines by 

converting allowances from HCFCs with lower future market value (i.e., HCFC-142b) to HCFC 

allowances they knew would retain value in the next regulatory period (i.e., HCFC-22). 

Two other commenters do not support revised baselines. One of the commenters believes 

that the current allocation method is the fairest method because it is transparent and well 
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understood by all market participants. The other commenter sees no benefit to updating 

baselines, but says future reductions in allocations will benefit the environment by promoting 

reclamation. 

 Since EPA did not propose to establish baselines for 2015-2019, the agency will continue 

to assess the merits of using a more recent set of years to establish baselines in a later 

rulemaking. The agency is still receptive to the idea of updating baselines in 2015, but notes that 

it did not receive any evidence that there is an environmental benefit to doing so. 

B. What Factors Did EPA Consider in Determining Allocation Amounts for HCFC-22 and 

HCFC-142b? 

In the 2009 Final Rule, EPA decided to allocate HCFC-22 and HCFC-142b allowances 

based on the projected servicing needs for those substances, taking into account the portion of 

need that can be met through recycling and reclamation. EPA is not changing that general 

approach, and continues to believe it is necessary in order to promote the use of used, recycled, 

and reclaimed material in anticipation of the 2015 phasedown step. In accordance with the 

Court’s decision in Arkema, the agency proposed, and is now finalizing, baselines that reflect 

2008 inter-pollutant baseline transfers. This approach necessitates issuing a different percentage 

of company baselines in order for the aggregate number of calendar-year HCFC-22 consumption 

allowances to be less than or equal to the 2009 Final Rule. In fact, EPA proposed to allocate 

significantly fewer consumption allowances for HCFC-22 relative to the 2009 Final Rule based 

on an analysis of updated market conditions. 

Specifically, the agency considered to what extent servicing need can be met by (1) 

significant inventories of existing HCFC-22, (2) increased reclamation capacity, and (3) re-use of 

HCFC-22 within supermarkets. See “Analysis of HCFC-22 Servicing Needs in the U.S. Air 

Conditioning and Refrigeration Sector: Additional Considerations for Estimating Virgin 

Demand” (Adjustment Memo), included in the docket to this rulemaking. In the Adjustment 
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Memo, EPA considers a higher and a lower HCFC-22 allocation scenario for each year. In the 

larger allocation scenario: (1) surplus inventory from past years (hereinafter called “existing 

inventory”) meets 6,000 MT of estimated need each year; (2) recovery and reclamation meet 

12,500 MT of need, the same amount as in the 2009 Final Rule; and (3) 20 percent of total need 

in the large retail food sector is met by in-house recovery and reuse. In the smaller allocation 

scenario: (1) existing inventory also meets 6,000 MT of estimated need each year; (2) recovery 

and reclamation meet 19,700 MT of estimated servicing need; and (3) 70 percent of total need in 

the large retail food sector is met by in-house recovery and reuse. 

As shown in Table 4 of the Adjustment Memo, the agency proposed to issue HCFC-22 

consumption allowances as follows: (1) between 25,100 and 36,200 MT in 2012 (a decrease of 

11 to 38 percent relative to the 2009 Final Rule); (2) between 20,800 and 31,400 MT in 2013 (a 

decrease of 13 to 42 percent); and (3) between 16,400 and 26,300 MT in 2014 (a decrease of 15 

to 47 percent). These proposed amounts correspond to allocations of 17.7 to 25.5 percent of 

baseline in 2012, 14.7 to 22.1 percent in 2013, and 11.6 to 18.5 percent in 2014. The agency took 

comment on its analysis of market conditions, which specifically looked at existing inventory, 

reclamation capacity, and HCFC-22 reuse in the supermarket industry. EPA also asked for 

comment on potential difficulties faced by small businesses and on whether or not the 

installation of dry-shipped HCFC-22 condensing units affects the phaseout. 

 Between the 2011 Interim Final Rule and the proposed rule, the agency received a total 

of 50 comments (some with multiple signatories) on the market conditions (see section 2 of the 

Response to Comments) considered in allocating HCFC-22 and HCFC-142b allowances. As 

discussed in the proposed rule, the need for HCFC-22 to service existing equipment is the 

primary factor affecting EPA’s overall allocation of production and consumption allowances for 

the current regulatory period. Thus, the Adjustment Memo only discusses HCFC-22 and most 

comments, as well as the agency’s response, focus primarily on HCFC-22. 
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Additionally, EPA received 13 comments, four from the Interim Final Rule and nine 

from the proposed rule, on whether or not to provide more HCFC-22 and/or HCFC-142b 

consumption and/or production allowances as compensation for lost opportunities during 2010 

(“recoupment”). Lastly, the agency proposed to allocate different annual percentages of baseline 

for consumption than for production (“decoupling”). Without decoupling the baselines, the 

percentage of baseline allocated for production would be the same as that for consumption for a 

given HCFC. Nine comments specifically addressed decoupling of baseline percentages. 

1. How Is EPA Adjusting Estimated Servicing Need to Account for Surplus Inventory 

from Past Years? 

 The agency proposed to account for existing inventory of HCFC-22 produced in previous 

years by making downward adjustments to the consumption allocation of 6,000 MT each year. 

EPA’s analysis indicated the amount of existing inventory was between 22,700 MT and 45,400 

MT. Including relevant comments received on the 2011 Interim Final Rule, EPA received eight 

comments on its assessment of existing inventory of HCFC-22. Seven comments state there are 

significant volumes of HCFC-22 in existing inventory and that accounting for this inventory is 

essential for supporting recovery and reclamation. One of those commenters indicates the 6,000 

MT proposed annual adjustment and the 45,400 MT stockpile estimate should be considered a 

minimum, not maximum amount. Another also supports EPA’s consideration of existing 

inventory, and believes the estimates used in the proposed rule may be too low based on their 

own inventory and their own estimates of industry-wide inventory. 

 All comments on EPA’s analysis, including confidential comments, indicate EPA’s 

estimate of existing inventory is reasonable and that an annual adjustment to the estimated 

servicing need of 6,000 MT is supportable. EPA considered a wide range of existing inventory 

(between 22,700 MT and 45,500 MT), but comments support the proposed 6,000 MT adjustment 

regardless of the total stock of existing inventory. Based on the information provided, the agency 
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does not believe the annual adjustment or the estimate of existing inventory should be increased. 

Overestimating the amount in inventory could limit the ability of consumers to service their 

equipment, resulting in systems being prematurely decommissioned. EPA provides a full 

summary of comments and agency responses in the Response to Comments, but notes here that 

all commenters who addressed the proposed 6,000 MT adjustment specifically were in support of 

an adjustment at least that large. EPA is finalizing the consumption allocation with the proposed 

adjustment for existing inventory. 

2. How Is EPA Adjusting Allowances to Encourage Recovery, Reclamation and Reuse? 

 In the 2009 Final Rule, the agency recognized that servicing needs can be met with a 

combination of newly-manufactured or imported HCFCs (virgin HCFCs) and HCFCs that have 

been recovered and either reused, recycled, or reclaimed. The 2009 Servicing Tail Report 

analyzed various reclamation scenarios, and after several rounds of industry feedback, the 

agency decided to issue allowances 12,500 MT below estimated need in 2010-2014. For 2010, 

12,500 MT was 20 percent of the estimated need. EPA continues to believe that reused, recycled, 

and reclaimed material can help meet HCFC-22 servicing needs. The agency published new 

projections of reclaim capabilities in the Adjustment Memo, and took comment on those 

projections via this rulemaking. 

 Out of the 15 comments EPA received on reclaim capabilities, 14 comments (some 

signed by multiple organizations) supported EPA’s analysis that the reclamation industry has the 

capacity to reclaim more than 19,700 MT per year. One comment stated that the infrastructure to 

effectively and efficiently recover, recycle, redistribute, and reuse HCFC-22 likely will take 

several years to develop. In addition, one company agreed that the industry has the capacity to 

meet reclaim needs, but disagreed with the base assumption that this activity will automatically 

take place. 
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 In the Adjustment Memo, EPA considered annual reclamation levels of 12,500 MT and 

19,700 MT. Several organizations state that the 19,700 MT figure should be a minimum, rather 

than a maximum, because established companies that reclaim refrigerants have the technical 

capacity to recover 19,700 MT or more in 2012 alone and could easily expand capacity to meet 

additional need. One company comments that reclamation companies will be able to expand to 

cover the need that will ultimately be driven by higher prices and a decrease in supply. However, 

companies will not expand until there is a need. Another company also states that it could easily 

triple its current capacity, and believes the same is true for many reclamation companies. Many 

companies support an allowance reduction to encourage an increase in reclamation capacity and 

volume. These commenters, including 20 EPA-certified reclaimers that submitted a single 

comment, all believe that the capacity exists to handle increased reclamation volumes. 

 Several commenters believe sufficient recovery and reclamation capacity exists, but that 

the supply chain of used refrigerant from equipment-in-use to reclamation facilities is 

fragmented and complex. The concern is not whether capacity exists, or whether reclaimers 

could quickly expand capacity, but whether material is actually being recovered and brought to 

reclaimers. A group of recovery companies believes that existing reclaimers have the capacity to 

process more than enough HCFC-22 to meet the industry needs, but are not convinced that given 

the present situation, there will be enough refrigerant recovered to meet the raw material needs of 

the reclaimers. However, a group of recovery companies that focuses exclusively in recovering 

used refrigerant from retiring equipment does believe reducing allowances will change the 

incentives for recovery. Finally, one company believes that EPA’s estimate of the potential for 

recovery and reuse is too optimistic during 2012-2014, particularly because residential air 

conditioners use only small quantities of the gas. 

EPA’s assessment that the reclamation industry has the capacity to reclaim 19,700 MT of 

HCFC-22 per year, as presented in the Adjustment Memo, is supported by most of the comments 
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received. The amount of used refrigerant that can be recovered from retiring equipment is 

sufficient to allow for the reclamation of 19,700 MT per year, based on expected recovery rates 

used in the Vintaging Model7

. Included in the docket for this rulemaking is a new supporting 

memo titled “Recovered HCFC-22 Available to Meet Servicing Needs” (Recovery Memo). In 

this memo EPA shows the amount of HCFC-22 that can be recovered from HCFC-22 equipment 

that reaches its end of life under two scenarios. In the first scenario, EPA uses the end-of-life 

assumptions in the Vintaging Model to determine how much HCFC-22 is recovered from retiring 

equipment. The Vintaging Model uses a 35 percent recovery rate in retiring residential air 

conditioning systems. The Recovery Memo details all the recovery assumptions used, which are 

nearly identical to those used in the 2009 Servicing Tail Report. These numbers are similar to 

those presented in table 4-5, “Scenario 50: 50% Recovery Rate,” which was also presented in the 

2009 Servicing Tail Report. In the second scenario, EPA assumes all HCFC-22 is recovered at 

the end-of-life. The intent of this memo is to show that it is technically feasible to recover and 

reclaim 19,700 MT of HCFC-22 per year between 2012-2014, even when only 35 percent of the 

HCFC-22 is recovered from residential air conditioning systems—the largest use for HCFC-22. 

However, EPA agrees with some commenters that the amount of refrigerant that is 

available to be recovered does not necessarily equal the amount that is recovered in practice, and 

that it will take time for recovery practices to change. The agency recognizes that assuming 

19,700 MT of annual servicing need can be met by recovered and reclaimed material—instead of 

 

7

 The Vintaging Model is the primary tool that EPA uses to estimate projected HCFC consumption. The Vintaging 

Model estimates the annual chemical emissions from industry sectors that have historically used ODS, including air 

conditioning, refrigeration, foams, solvents, aerosols, and fire protection. Within these industry sectors, there are 

over fifty independently-modeled end uses. The model uses information on the market size and growth for each of 

the end uses, as well as a history and projections of the market transition from ODS to alternatives. As ODS are 

phased out, a percentage of the market share originally filled by the ODS is allocated to each of its substitutes. The 

model tracks emissions of annual “vintages” of new equipment that enter into operation by incorporating 

information on estimates of the quantity of equipment or products sold, serviced, and retired or converted each year, 

and the quantity of the compound required to manufacture, charge, and/or maintain the equipment. EPA’s Vintaging 

Model uses this market information to build an annual inventory of in-use stocks of equipment and the ODS 

refrigerant and non-ODS substitutes in each of the end uses. This information is used to project the servicing needs 

of ODS-containing equipment. Additional information on the Vintaging Model is available in the 2009 Servicing 

Tail Report, which can be found in the docket for this rulemaking. 
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12,500 MT—does not mean that amount will actually be reclaimed each year. EPA’s adjustment 

to encourage recovery and reclamation could also encourage transition to HCFC-22 alternatives 

and more recovery and reuse of HCFC-22 in systems that require a large refrigerant charge. 

Although both of these outcomes are difficult to measure and predict, EPA expects that these 

outcomes will sufficiently deal with any gap between the adjustment in allocation and realized 

reclamation levels. EPA adopted the same general approach in the 2009 Final Rule (using 12,500 

MT instead of 19,700 MT) to foster recovery and reclamation. In addition, EPA has received 

anecdotal information from stakeholders that reclaimers are already offering increased incentives 

to return recovered refrigerant and that this will continue as long as there is an economic 

incentive to do so. As the supply of virgin refrigerant shrinks, the incentive to recover and 

reclaim used refrigerant will likely increase. EPA provides a full summary of comments and 

agency response in the Response to Comments. 

EPA does not believe any of the concerns raised should preclude the agency from 

increasing the adjustment for reclamation from 12,500 MT to 19,700 MT to foster reclamation, 

especially in light of the 2015 Montreal Protocol cap and the 2020 phaseout of HCFC-22 

production and import. EPA believes increased recovery and reclamation is necessary to ensure a 

smooth transition between now and 2020 and is increasing the difference (relative to the 2009 

Final Rule) between estimated servicing need and the allocation for virgin production and 

import. The agency is finalizing the proposed 19,700 MT adjustment to foster increased HCFC22 recovery and reclamation. 

3. How Is EPA Accounting for Recovery and Reuse of HCFC-22 in the Supermarket 

Industry? 

In the proposed rule, EPA considered adjusting the allocation for virgin HCFC-22 

production and import to account for current recovery and reuse practices in the supermarket 

industry. Specifically, the agency estimated that between 20 percent and 70 percent of annual 
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servicing need in the large retail food sector could be met by HCFC-22 recovered and reused inhouse. In addition to the analysis conducted to develop the Adjustment Memo, EPA considered 

late comments that addressed recovery and reuse of HCFC-22 in supermarkets. The comments, 

combined with EPA’s findings presented in the Adjustment Memo, indicate that supermarkets 

deal with recovered refrigerant in a variety of ways. Some appear to meet 10-20 percent of their 

annual servicing need with material they recovered from internal existing prior uses. Others have 

the material reclaimed and do not reuse or bank any of the material. A third group meets 80 to 

100 percent of their annual need with reused material. 

EPA received an additional comment on reuse by large end users, but not specifically 

supermarkets. The commenter notes that large users retiring equipment can efficiently and 

effectively capture the majority of refrigerant from commercial refrigeration and air conditioning 

units. These users can recover refrigerant for future servicing of other equipment they own. 

These users do not require reclamation technology or equipment, and can recover and reuse 

significant volumes of refrigerant. Such recovery and reuse should continue to be considered as a 

source of HCFC-22 service refrigerant.

EPA agrees that large end users, including supermarkets and other large commercial 

applications, can be a source for recovered HCFC-22. However, the agency only received 

information on how six companies reuse refrigerant in-house, and their reuse percentages are 

very different. Since the agency does not have sufficient data on in-house reuse, EPA is not 

accounting for supermarket reuse as its own category. However, the agency’s Vintaging Model 

has reasonable estimates for actual recoverable material for various sectors, and EPA is using 

those modeled recovery rates for supermarkets to help support overall recovery and reuse 

estimates in this rule (see the Recovery Memo for specifics on modeled recovery rates). 

4. Did EPA Consider Providing Allowances to Small Businesses in This Final Action? 
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In response to the 2011 Interim Final Rule, one small business informed EPA that it 

could not acquire either HCFC allowances or the HCFCs it needs to manufacture its HCFC blend 

(see the letters from ICOR dated May 17, 2011 and September 6, 2011, available in the docket 

for this action). To remedy this situation, the commenter requested that EPA provide unused 

allowances to companies that purchased either HCFCs or HCFC consumption allowances in 

2008 and 2009. In the proposed rule, EPA noted that the inability to acquire allowances and/or 

HCFCs themselves does not appear to be a widespread problem, as numerous companies have 

made a significant number of transfers over the last year alone, and no other company has 

commented that it cannot acquire HCFCs. However, EPA took comment on whether other 

companies were having difficulty acquiring HCFCs or HCFC allowances. In the proposed rule, 

the agency also provided some historical background on how EPA provided flexibility for small 

businesses when establishing the HCFC allocation system. 

EPA received four comments on providing allowances to manufactures of HCFC blends, 

all of which were in opposition. Two companies point to the flexibility for companies without 

baselines to obtain HCFCs or HCFC allowances by purchasing them from others. Another 

commenter notes that EPA provided for new entrants when it established the allocation system in 

2003. 

Since EPA did not receive any additional comments in support of providing HCFC 

allowances to manufacturers of HCFC blends, and because the agency has previously stated its 

belief that the current allocation system provides significant flexibility for new entrants (as 

documented in the revised Flexibility Memo), EPA is not providing allowances for new entrants 

at this time. 

EPA also sought comment on the concept of providing HCFC-22 allowances to 

reclaimers, but expressed reservations. EPA received eight comments on this topic: four in 

opposition and four in support. Comments in opposition state that providing allowances to 
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reclaimers could encourage blending of refrigerant, instead of reclaiming refrigerant. They also 

cite administrative hurdles in establishing allowances for reclaimers and their skepticism that 

reclaimers would actually use the allowances to reclaim more material. All three commenters 

state that the proposed reduction in allowed production and import will encourage recovery and 

reclamation (without providing allowances). 

One comment in support encouraged EPA to provide allowances to reclaimers as a 

reward for reclamation activities. The commenter also stated that manufacturers create a difficult 

working environment for reclaimers, claiming, for example: 

• The manufacturers exert pressure on wholesalers and contractors not to return 

their used refrigerants to a reclaimer, using their supply of virgin refrigerants as 

leverage. 

• The manufacturers have asked cylinder manufacturers not to sell pre-labeled DOT 

39 cylinders for their blends to reclaimers. 

• The manufacturers or their agents will buy an account back by offering a higher 

price for the used refrigerants than justified. 

The commenter argues that the desire of manufacturers to promote their own best self-interest 

results in a difficult environment for a refrigerant reclaimer to prosper. 

 EPA continues to have serious concerns about providing allowances to reclaimers that 

did not historically produce or import HCFC-22 and have not already acquired HCFC-22 

allowances. As stated in the proposed rule, the agency’s primary concern is that providing 

allowances for reclaimers could foster unsustainable reclamation practices that rely on blending, 

instead of investment in the technology to fully reclaim HCFCs. Reclamation through separation 

and distillation will be more important in 2015 when the HCFC-22 allocation must drop by at 

least 45 percent from 2010 levels, and it will be absolutely necessary by 2020, at which time 

production and import of HCFC-22 must be phased out entirely. In addition, many businesses 
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have either found a way to secure reliable access to virgin HCFCs or have made investments to 

reclaim HCFCs in a sustainable way, without a direct allocation of allowances. 

EPA continues to believe that allocating fewer allowances—rather than providing 

allowances to reclaimers—is the best way to foster reclamation and recovery. In this final rule, 

EPA is taking significant steps to encourage recovery and reclamation by providing fewer 

HCFC-22 consumption allowances. Fewer allowances for new production and import increases 

the value of existing HCFCs, which in turn increases the incentives for recovery and reclamation. 

While the agency appreciates the concerns raised by reclaimers about the difficulties they 

encounter in the refrigerant reclamation business, these barriers have not stopped companies 

from becoming EPA-certified reclaimers—currently there are more than 50. Given the 

considerations above, the agency is not providing allowances to reclaimers at this time. 

5. Does the Installation of Dry-shipped HCFC-22 Equipment Affect the Phaseout of 

HCFC-22? 

In the proposed rule, EPA took comment on whether allowing repairs using HCFC-22 

dry-shipped condensing units affects the phaseout of HCFC-22. Eight commenters believe the 

repairs of existing equipment that involve installation of dry-shipped HCFC-22 condensing units 

is affecting the phaseout and/or should be stopped. They claim that continued installation of dryshipped condensing units effectively allows the manufacture of otherwise banned HCFC-22 airconditioning systems, increasing demand for HCFC-22 and undercutting the market for 

alternative refrigerants. One company does not believe dry-shipped condensing unit repairs can 

be properly addressed through a reduction in HCFC-22 allocation levels. Cost associated with 

the HCFC-22 refrigerant needed for the re-charging of the HCFC-22 system is quite small (<5% 

of the total servicing cost), so even a significant inflation of the cost of HCFC-22 will still have a

minimal impact on the end-user’s decision. Two commenters ask EPA to ban repairs using 

HCFC-22 dry-shipped condensing units, one explicitly asking for this action in lieu of further 
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reducing HCFC-22 production. Another commenter is concerned about the negative effects of 

dry-shipped condensing units on equipment efficiency.

One joint comment from several environmental groups indicated that the market for dryshipped HCFC-22 units is expanding rapidly; however, no data were provided. The commenters 

express concern that because newly-produced HCFC-22 is so cheap, service technicians are 

venting HCFC-22 from broken units, installing dry-shipped units in their place, and then 

charging the unit with virgin HCFC-22. 

EPA received seven comments saying installation of dry-shipped condensing units does 

not significantly affect the phaseout and/or that dry-shipped HCFC-22 condensing unit repairs 

should not be banned. These commenters believe dry-shipped condensing units are providing 

consumers a legal, affordable repair option, and thus not actually increasing demand for HCFC22 or displacing the sale of new systems. They contend that the primary application of the 

uncharged HCFC-22 replacement condensing units is as a service option to major compressor 

and coil failures. While two of the equipment manufacturers who do not support a ban on dryshipped unit repairs also do not support reduced allocations of HCFC-22, another equipment 

manufacturer believes that addressing the availability of the refrigerant is the appropriate driver 

for phasing out virgin HCFC-22, and that the installation of dry-shipped HCFC-22 condensing 

units does not have a negative effect on the phaseout. Another commenter suggests that if EPA 

has verifiable evidence that the servicing or repair of HCFC-22 appliances is resulting in 

increased emissions of the refrigerant, then EPA should consider extending the leak repair 

requirements to all appliances, not just appliances with a refrigerant charge greater than 50 lbs. 

 Five additional comments discuss HCFC-22 condensing units in more general terms. One 

organization suggests that EPA consider that most dry-shipped condensing units are being sold 

and installed with multi-year warranties, which may require a revision to EPA’s servicing tail 

analyses if HCFC-22 replacement refrigerants are not approved by the compressor and 
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equipment manufacturers for warranty servicing beyond 2015. Two other commenters state that 

the installation of HCFC-22 condensing units affects the need for HCFC-22. One commenter 

states that contractors prefer selling new R-410a systems instead of repairing older systems, 

since it is much more profitable, but that American consumers are struggling to pay bills. One 

commenter states that further reductions in consumption allowances might discourage 

installation and field charging of new condensing units with HCFC-22. The commenter also 

states that continued installation of such units will only increase the challenge of meeting the 

2015 stepdown and in turn increase emissions of HCFC-22 to the atmosphere. 

The issue of whether repairs involving the installation of dry-shipped HCFC-22 

condensing units “affects the phaseout” can be broken into several questions. First, do repairs 

involving installation of dry-shipped HCFC-22 condensing units increase demand for HCFC-22? 

Second, do such repairs slow transition from HCFC-22 equipment to equipment using non-ODS 

alternatives? And finally, does this practice affect EPA’s ability to stop the production and 

importation of virgin HCFC-22 by January 1, 2020? 

Based on comments, there is no industry consensus on each of these questions. Specific 

responses to each comment are included in the Response to Comments found in the docket for 

this rulemaking. However, given the paucity of concrete quantifiable information on this subject 

currently available to the Agency, EPA is not ready to determine whether the installation of dryshipped HCFC-22 condensing units will affect EPA’s ability to phase out HCFC-22 by 2020. 

The limited data received to date suggest that it will not. EPA did not propose to ban dry-shipped 

condensing units in the proposal and is not taking such action in this final rule. For purposes of 

future rulemakings, EPA is still interested in quantifiable information on the number of dryshipped condensing units being shipped, whether they are being used as a repair in lieu of a 

compressor or motor replacement, and whether and to what extent condensing unit replacements 
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extend the life of an existing system. EPA will continue to evaluate the issue as it develops future 

regulations. 

 6. How Is EPA Addressing the Court’s Decision with Regard to 2010 HCFC Allowances? 

 As noted in the proposed rule, EPA interprets the Arkema decision as applying, at a 

minimum, to the baseline and calendar-year allowances for 2011-2014. The agency took 

comment on whether to interpret the decision as applying to the 2010 allocation, and if so, how 

allowances in future control periods might be adjusted to reflect this. EPA also took comment on 

(1) whether it should provide recoupment allowances for HCFC-22 and HCFC-142b, or just 

HCFC-22 allowances, and (2) whether it should provide recoupment for production and 

consumption, or just consumption allowances. In this final action, EPA concludes that it has an 

obligation to consider 2010 allowances in responding to the Court’s remand and that recoupment 

for both HCFC-22 and HCFC-142b production and consumption allowances is an appropriate 

response to the Court’s holding that the agency committed legal error in deciding not to carry the 

2008 transfers forward when it established the baselines for the current regulatory period. 

 EPA received 13 comments in opposition to recoupment. Four comments specifically 

state that it is too late to address 2010 allowances, since the Court’s mandate did not issue until 

2011, and allowances are only good for the calendar year in which they are issued. Two 

comments assert that providing recoupment allowances would allow for banking or transferring 

of allowances to later years, which is at odds with the CAA and EPA regulations. Most of these 

comments point out that some allowances conferred in 2010 actually went unused in that year, 

and that EPA’s current proposal to reduce allowances in 2012-2014 is further rationale for not 

providing additional allowances to compensate for any perceived lost opportunity in 2010. They 

point to EPA’s statement in the proposal that not providing recoupment would have advantages 

for the environment, public health, and the goal of encouraging reclamation. They assert that 

there was an oversupply of HCFC-22 allowances in 2010, that Arkema and Solvay were not 
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harmed in 2010, and that recoupment allowances would constitute a windfall. They refer to the 

Court’s denial of Arkema’s and Solvay’s motions for a stay of the 2009 Final Rule as evidence 

that these companies were not harmed. One commenter also asserts that if Arkema and Solvay 

believe they are entitled to compensation, they must file a claim for compensation under the 

Tucker Act, 28 U.S.C. 1491. Finally, four comments cite that providing recoupment distorts 

market share, in contradiction to past EPA policy and the Arkema decision as it relates to vested 

rights. 

On the other hand, the two companies that would benefit most from recoupment, Solvay 

and Arkema, state that EPA should provide recoupment and that the agency must do so in order 

to comply with the Court’s decision in Arkema. Solvay states that EPA deprived it of its rightful 

allowances by failing to recognize its permanent inter-pollutant trades in the 2009 Final Rule and 

that recoupment is necessary to remedy that error. Arkema asserts that its losses were significant 

because of its inability to compete effectively in the after-market, stockpile material for sale in 

later years, and sell other refrigerants to one-stop shoppers. 

The primary rationale the commenters present in favor of providing recoupment is that 

when an agency “...commits legal error, the proper remedy is one that puts the parties in the 

position they would have been in had errors not been made,” (AT&T Corp. v. FCC, 448 F.3d 

426, 433 (D.C. Cir. 2006) (quoting Exxon Co. v. FERC, 182 F.3d 30, 48 (D.C. Cir. 1999)). The 

Court has further held that the proper remedy to an error is “to put the victim of the agency ‘error 

in the economic position it would have occupied but for the error,’” (Ethyl Corp. v. Browner, 67 

F.3d 941, 945 (D.C. Cir. 1995) (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 206-07 

(D.C. Cir. 1984)). 

Arkema contends that providing recoupment for losses would not require improper 

retroactive action. It states that because there is a strong equitable presumption in favor of 

retroactivity that would make the injured party whole, EPA can make a correction that goes back 
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to the time the agency error occurred (Exxon Co. v. FERC, 182 F.3d 30, 48 (D.C. Cir. 1999)). In 

addition, the commenter argues that in this circumstance EPA may go beyond its otherwise 

applicable statutory authority. The commenter states that each agency has “general discretionary 

authority to correct its legal errors,” which extends to imposing retroactive changes, even when 

the statute does not expressly and affirmatively authorize the agency to do so in the first instance 

(Natural Gas Clearinghouse v. FERC, 965 F.2d 1066, 1073 (D.C. Cir. 1992)). 

As expressed in the proposed rule, EPA’s preferred approach to the 2010 allocation was 

not to provide recoupment. However, EPA reviewed comments and considered the policy and 

legal aspects of providing or not providing recoupment. In particular, EPA considered the 

following questions: (1) does EPA have the obligation to address 2010 allowances in light of the 

Court’s decision in Arkema, and (2) does EPA have the ability to provide some form of 

compensation that would remedy the retroactive aspects of the 2009 Final Rule with respect to 

2010? EPA believes that the answer to both questions is “yes.” 

First, EPA believes it has an obligation to address 2010 allowances in light of the Court’s 

decision in Arkema, to the extent feasible given the design and structure of this program. The 

Court stated that the 2009 Final Rule was, in part, “impermissibly retroactive” because “it 

attempted to undo the Petitioners’ inter-pollutant baseline transfers” based on what the Court saw 

as a “new interpretation of section 607” of the Clean Air Act. The Court vacated the rule “insofar 

as it operates retroactively” and remanded the case “for prompt resolution,” (Arkema, 618 F.3d. 

at 25). EPA believes that on remand, it must put allowance holders in the position they would 

have occupied had the agency reflected the Petitioners’ inter-pollutant baseline transfers in the 

2009 Final Rule (AT&T v. FCC, 448 F.3d 426 (D.C. Cir. 2006); Exxon Co. v. FERC, 182 F.3d 30 

(D.C. Cir. 1999)). As noted in the proposal, it is appropriate for EPA to consider the 2010 

allocation on remand whether or not the Court’s decision had the effect of vacating the 2010 
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allowances. The Court clearly held that the baselines used in the 2009 Final Rule were invalid, 

and the 2010 allocation relied on those baselines. 

Second, EPA believes it is feasible to provide compensation for lost 2010 allowances in 

the form of recoupment allowances, even though the 2010 period has ended and all 2010 

allowances have expired. As explained in the proposed rule, EPA allocates HCFC production 

and consumption allowances for specific calendar years: They are valid for that year only. Such 

allowances cannot be banked or borrowed. Therefore, EPA cannot provide meaningful 

compensation by issuing additional 2010 allowances since they would be void upon issuance. In 

the narrow circumstance of responding to the Court’s decision, however, EPA finds it 

appropriate to issue a corresponding number of allowances in later years to make up for the 2010 

allowances that companies would have received if EPA had reflected the Petitioners’ interpollutant baseline transfers in the 2009 Final Rule. These recoupment allowances are designed to 

compensate for lost opportunities to produce or import HCFCs during 2010 for sale in either 

2010 or a later year. 

In responding to concerns that this is effectively allowing for banking or a transfer of 

allowances from 2010 to a later year, EPA disagrees. While EPA does not allow banking of 

allowances beyond the control period in which they are issued, nothing in the regulations bans 

companies from producing or importing HCFCs with allowances and then storing the material 

over time. Companies receiving recoupment were deprived of their ability to import and/or 

produce HCFCs in 2010 at a level consistent with the Court’s decision in Arkema. Had they 

received the requisite level of allowances in 2010, they could have expended them during 2010 

to produce or import HCFCs and banked those HCFCs until at least the years covered by this 

rulemaking. EPA also disagrees with one commenter’s characterization of recoupment as an 

effective transfer of 2010 allowances to later years. Contrary to the commenter’s assertion, EPA 

did not adopt this characterization in the proposal, but instead simply pointed out that the 
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regulations do not allow banking or borrowing of allowances. The commenter quotes section 

607(a), which states that EPA regulations must ensure that transfers “will result in greater total 

reductions in the production in each year of . . . class II substances than would occur in that year 

in the absence of such transactions.” The commenter asserts that if recoupment is provided, the 

aggregate allowance total will be higher than it would have been if no recoupment were 

provided. However, EPA disagrees that section 607(a), which is titled “Transfers,” has any 

application to this situation. Section 607(a) refers specifically to “transactions under the authority

of this section.” An EPA rulemaking providing allowances is not such a transaction. The 

transactions in question are the “transfers” and “trades” within or between companies explicitly 

discussed in section 607. EPA has implemented section 607(a) by requiring an offset for all 

intra-company and inter-company transfers. See, e.g., 40 CFR 82.23(a)(i)(G). 

 Additionally, commenters assert that providing recoupment allowances would mean 

taking allowances away from others or distorting market share. One commenter said that 

providing recoupment is in violation of the Arkema decision, asserting that a company’s 

allowances, or its share of allowances, are a vested right. EPA disagrees with this comment on 

both factual and legal grounds. First, as a result of the Arkema Court’s partial vacatur of the 2009 

Final Rule, there are currently no production or consumption allowances for HCFC-22 in 2012-

2014. This final rule is filling a gap, rather than reshuffling existing allowances or existing 

market share. Second, even in the context of today’s allocation, EPA is not allocating fewer 

allowances to one company for the purpose of allocating more to a different company. EPA is 

allocating a fixed percentage of baseline to each baseline holder at a level that in the aggregate is 

expected to meet servicing demand, taking into account the amount of such demand that can be 

met through other sources. EPA is then allocating recoupment allowances to certain companies 

on top of that fixed percentage allocation. Regarding market share, the allocation of recoupment 

allowances is limited to two years; thus, as a practical matter, it is unlikely to cause a permanent 
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shift in market share. In addition, market share is not a simple reflection of EPA’s allocation of 

allowances: for example, some companies buy or sell allowances and thus increase or decrease 

the volume of their business in a particular HCFC or HCFCs generally. 

 Furthermore, EPA takes issue with the commenter’s characterization of the Arkema 

decision. In Arkema, the Court held that the petitioners had a vested right in transferred baselines 

where EPA had taken affirmative steps to approve the transfers by issuing non-objection notices. 

The commenter attempts to broaden the decision to state that allowance holders have vested 

rights in any and all allowances issued under the stratospheric ozone program, and in addition, to 

a specific market share or value attached to those allowances. EPA disagrees with this broad 

reading and believes the Court’s ruling is closely tied to its factual findings concerning the 2008 

transfers. This issue is discussed further at section IV.A.1. 

 Two commenters state that there was a significant oversupply of HCFC allowances in 

2010, that the petitioners in Arkema were not harmed by the 2010 allocation in the 2009 Final 

Rule, and that they would receive a windfall if EPA were to provide recoupment allowances. 

However, the fact that not all HCFC allowances were used in 2010 does not mean that particular 

companies were not harmed. Companies’ individual situations and business plans may differ. 

Also, although the commenter cites the Court’s denial of the motions to stay the 2009 Final Rule 

as evidence that petitioners were not harmed in 2010, harm to the moving party is only one of the 

criteria considered by a court in reviewing a stay motion. Thus, it is erroneous to assume that the 

Court’s denial equates to a ruling that petitioners suffered no harm. 

 Several commenters stated that providing recoupment allowances would harm human 

health or the environment; however, this action as a whole protects human health and the 

environment by allocating significantly fewer allowances in 2012-2014 than the agency allocated 

in the 2009 Final Rule. Viewed in relation to that rule, EPA is reducing the total number of 

HCFC-22 consumption allowances (after providing for recoupment) by more than 31,100 MT 
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over those three years. As a result, providing recoupment does not increase the allowed amount 

of HCFC-22 production and importation for U.S. use relative to the 2009 Final Rule. Even with 

recoupment, total U.S. consumption will be at least 55 percent below the Montreal Protocol 

consumption cap. This overall decrease in consumption also increases the incentives for recovery 

and reclamation. In addition, as noted in the proposal, the amount of recoupment being granted 

(329 ODP-weighted MT of allowed HCFC consumption and 280 ODP-weighted MT of allowed 

HCFC production) is smaller than the number of allowances that were not used by allowance 

holders in 2010 (approximately 425 ODP-weighted MT of HCFC consumption allowances and 

approximately 930 ODP-weighted MT of HCFC production allowances). EPA’s response to 

additional comments on whether to provide recoupment can be found in the Response to 

Comments. 

 The agency presented four possible options with regard to recoupment for 2010: (1) 

providing recoupment allowances in 2013 in addition to (i.e., on top of) the aggregate level of 

production and consumption; (2) allocating recoupment allowances over two years (2013-2014) 

in addition to (i.e., on top of) the aggregate level of production and consumption; (3) allocating 

recoupment allowances from the aggregate level of production and consumption over two years 

(2013-2014); and (4) not issuing recoupment allowances. Five comments specifically support 

one or more of these options. One comment supports option 1, two comments support option 3, 

and two comments support option 4. Two additional comments do not directly support an option, 

but raise concerns with options 1 and 2. 

 EPA stated in the proposed rule that if it decided to issue recoupment, it would prefer 

option 1. However, after reviewing comment and considering the options further, the agency 

believes option 2 is the best approach for ensuring a smoother path towards 2015, when U.S. 

consumption and production of all HCFCs must be at or below 10% of baseline under the 

Montreal Protocol. In addition, it does not reduce the number of allowances available to 
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companies not receiving recoupment. Also, in light of EPA’s decision to reduce the overall 

HCFC-22 allocation significantly in relation to the 2009 Final Rule, EPA can adopt option 2 

while still issuing fewer consumption allowances in 2013 and 2014 than it did under the 2009 

Final Rule. 

 Option 1 could flood the market in 2013, providing significantly more allowances in that 

one year than in either 2012 or 2014, creating an even more significant drop-off in the number of 

allowances between 2013 and 2014. EPA also has serious concerns about option 3. Commenters 

in support of option 3 state that companies were “on notice” that 2010 allowances were in 

dispute before the Court, so EPA should reduce allowances for companies not receiving 

recoupment to make Arkema and Solvay whole. However, the court rejected petitioners’ stay 

motion and stayed its own mandate, with the result that companies were operating under the 

2009 Final Rule for all of 2010. Thus, companies that produced or imported HCFCs during 2010 

using consumption and production allowances received under the 2009 Final Rule were acting in 

accordance with the regulations in effect at that time. 

 Commenters in support of option 3 also claim that since refrigerant customers prefer to 

purchase all refrigerants from one supplier, and they could not provide sufficient quantities of 

HCFC-22 to some of their customers, the 2009 Final Rule resulted in a loss of sales of other 

refrigerants during 2010. EPA strongly believes that if a company loses its ability to sell to onestop shoppers when it loses allowances, the inverse should also be true: Providing additional 

allowances in 2013 and 2014 equal to the amounts lost in 2010 should provide approximately the 

same ability to compete for sales to one-stop shoppers as was lost in 2010. 

 Only two comments addressed whether EPA should provide recoupment for both HCFC22 and HCFC-142b, or just HCFC-22. One commenter supported providing recoupment for both 

substances, as it ensures traceability and consistency. The other commenter believes EPA should 

provide recoupment for HCFC-142b based on a total allowance pool of 118 metric tons (the 
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amount allocated for 2010 in the 2009 Final Rule), instead of using a total allowance pool of 463 

MT (the amount that results from the revised baselines, which are the same as the baselines 

proposed in 2008). According to the commenter, this means that the agency need only provide 

69.8 metric tons of HCFC-142b production allowances in recoupment. 

 EPA does not agree with the commenter that it should scale HCFC-142b recoupment 

production allowances to match the exact amount allocated in 2010. The agency is providing 

recoupment production allowances based on what it proposed in 2008 (73 FR 78680). In 2008, 

the percent of baseline was the same for both consumption and production. EPA is therefore 

using the baseline amount and percentage proposed in 2008 to calculate recoupment for HCFC142b production. The HCFC-142b production baseline is much larger than the consumption 

baseline (when accounting for the 2008 transfers), so the resulting 2010 allocation would have 

been much larger, while the consumption allocation would have been approximately the same 

under either baseline scenario. Issuing recoupment based on the 2008 proposal results in 

approximately 397 MT of additional HCFC-142b production allowances. Since manufacturing 

HCFC-142b in the U.S. for domestic use requires production and consumption allowances, the 

agency anticipates that the only potential increase in HCFC-142b production as a result of 

recoupment would be for export. 

 One commenter encouraged EPA to account for a company’s unused allowances from 

2010 if EPA is providing that company with recoupment allowances. To do this, EPA would 

need to divulge information about how each company uses its allowances: such companyspecific information has never been disclosed in the HCFC phaseout program, and EPA would 

need to consider claims of confidentiality before taking such a step. Also, EPA does not believe 

it is necessary to account for a company’s unused allowances because the agency is providing 

allowances to make up for the lost opportunity to produce or import HCFCs, not the specific 
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usage or lack thereof. As a result, EPA is not adjusting for a company’s unused allowances in 

2010. 

 To effectuate option 2, the agency is issuing half of the recoupment allowances for each 

company in 2013 and the other half in 2014 and is amending the regulatory text at 40 CFR 

82.16(a) accordingly. Recoupment allowances allocated for 2013 and 2014 will function in the 

same way as other calendar year allowances: They can be used only in the calendar year for 

which they are issued and will expire at the end of that calendar year. The agency believes the 

issuance of these recoupment allowances discharges its obligation to consider the 2010 control 

period in responding to the remand in Arkema. Table 1 lists the companies receiving recoupment,

the substance, and the total number of recoupment allowances: 

Table 1 – Final Recoupment Allowances 

Company Chemical Consumption (kg) Production (kg)

Arkema HCFC-22 4,749,692 4,611,848

DuPont HCFC-142b 2,339 0

Honeywell HCFC-142b 58,291 107,097

Solvay Fluorides HCFC-22 1,157,895 0

Solvay Solexis HCFC-142b 0 289,800

 A full summary and response to all other comments are included in the Response to 

Comments. 

 7. Does EPA Have to Provide the Same Percentage of Baseline for Production 

Allowances as It Does for Consumption Allowances? 

In considering how to allocate HCFC-22 production allowances for 2012-2014, the 

agency proposed to decouple production and consumption baseline percentages. Historically, 

there has only been one table at 40 CFR 82.16, which lists the percentage of baseline (both 
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production and consumption) that every baseline allowance holder is issued each year. EPA 

proposed to create two tables, and to allocate a different percentage of baseline for production 

than for consumption. Decoupling would allow the agency to reduce consumption allowances in 

relation to the 2009 Final Rule without having to reducemake the same reductions to production 

allowances. EPA stated its interpretation that section 605(c) of the CAA does not preclude EPA 

from decoupling baseline percentages and requested comment on this issue. EPA received two 

comments specifically addressing whether the statute precludes decoupling. 

Section 605(c) states that EPA must “promulgate regulations phasing out the 

production...of class II substances in accordance with [section 605],” subject to any acceleration 

under section 606. It further states that EPA must “promulgate regulations to insure that the 

consumption of class II substances in the United States is phased out and terminated in 

accordance with the same schedule (emphasis added)...as is applicable to the phase-out and 

termination of production of class II substances under [Title VI].” Because the phrase “same 

schedule” is not clear on its face, the agency considered three possible interpretations of the 

phrase “same schedule,” as explained in the proposal and in the 2011 Interim Final Rule. The 

agency stated that interpreting “same schedule” as referring to the phaseout schedule that appears 

in section 605, as accelerated under section 606, would be most consistent with the statutory 

language and purpose. Examples of milestones in the phaseout schedule are the 2010 and 2015 

phasedown steps. The agency clarified that it was not proposing to allow production in an 

amount that would be inconsistent with those phasedown steps, but simply proposing to allow a 

greater amount of production than consumption, with both amounts below the Montreal Protocol 

and CAA caps. The one company that provided comment on this matter agreed with the agency, 

and said that it does not believe that production and consumption allowances are somehow tied 

to the same regulatory schedule (requiring the same number of allowances or percentages of 

baseline for production and consumption). Rather, the commenter states that production and 
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consumption are tied to the same statutory and treaty schedule, and that the agency should 

provide for increased production. 

The other comment on decoupling was from a group of environmental organizations, 

none of whichwho supported an increasea decrease in production allowances relative to the 2009 

Final Rule. They believe that the language in section 605(c) equates the quantity of consumption 

and production allowances and cannot be interpreted to allow more production than consumption 

in a given year. 

EPA disagrees that the language in 605(c) equates the quantity of consumption and 

production allowances. EPA has never allocated the same quantity of production and 

consumption allowances, only the same percentage of baseline. The agency would have to 

provide different percentages of baseline for calendar-year consumption and production 

allowances to keep the allowance quantities the same since the number of aggregate baseline 

production allowances is not equal to the number of aggregate baseline consumption allowances. 

Additionally, EPA does not believe there is a single “natural reading” of section 605(c), as the 

comment suggests. Rather, the language is ambiguous. As explained in the proposed rule, there 

are at least three possible interpretations. EPA’s interpretation that the word “schedule” in 

section 605(c) refers to the schedule that appears in section 605, as accelerated under section 

606, is reasonable. In section 606, Congress used the word “schedule” to refer to a morestringent schedule than the schedule set forth in section 605: “The Administrator shall 

promulgate regulations . . . which establish a schedule for phasing out the production and 

consumption of . . . class II substances . . . that is more stringent than set forth in section 7671d 

[section 605].” The original section 605 schedule limited production and consumption to 

baseline quantities in 2015 and required a complete phaseout (with some exceptions) in 2030. It 

is logical that Congress would have intended the more-stringent schedule established under 

section 606 to have a similar structure: That is, to cap or eliminate production and consumption 
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on certain milestone dates. EPA in fact established just this type of schedule at 40 CFR 82. 

16(b)-(g). EPA has discretion in managing the allowance system to achieve this schedule. 

Therefore, the agency believes it can issue calendar-year consumption and production 

allowances using different percentages of baseline, as long as it complies with the overall 

schedule set by Congress, as accelerated under section 606. 

Discussion of EPA’s policy decision to decouple baseline percentages is found in section 

IV.C.2. 

C. How Many HCFC-22 and HCFC-142b Allowances Is EPA Allocating in 2012-2014? 

 The agency is revising the tables in 40 CFR 82 that together specify the production and 

consumption allowances available during specified control periods. The tables at sections 82.17 

and 82.19 apportion baseline production allowances and baseline consumption allowances, 

respectively, to individual companies for specific HCFCs during a particular regulatory period. 

Complementing these tables, the table at section 82.16 lists the percentage of baseline allocated 

to allowance holders for specific control periods. In this rulemaking, EPA is (1) retaining this 

framework of complementary tables, (2) establishing baselines for 2012-2014 identical to those 

established in the 2011 Interim Final Rule (76 FR 47451), (3) granting allowances based on 

percentages of baselines in a manner that achieves the 2010 phaseout step and lays the 

groundwork for the next phaseout step in 2015, and (4) providing recoupment allowances. 

 In the 2009 Final Rule, 34.1 percent, 30.1 percent, and 26.1 percent of each company’s 

HCFC-22 baselines were allocated for 2012, 2013, and 2014, respectively. The allocation for 

HCFC-142b was 0.47 percent of baseline. As discussed in section III.D. of this final rule, EPA 

interpreted the Court’s vacatur as applying to the HCFC-22 and HCFC-142b allocations for each 

of these years as well as the baselines. EPA is putting in place new allocations through this 

rulemaking, and proposed various allocation amounts for consumption and production 

allowances during the remainder of this regulatory period. 
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1. How Many HCFC-22 Consumption Allowances Is EPA Allocating in 2012-2014? 

The 2009 Final Rule allocated 40,700 MT of HCFC-22 consumption allowances in 2012, 

which was 76.5 percent of estimated servicing need, and 59 percent of the total 2012 HCFC 

consumption cap. EPA arrived at this amount by estimating the amount of servicing need, taking 

recovery and reclamation into consideration. EPA then finalized an allocation that was 12,500 

MT below estimated need. Using a similar approach, EPA proposed to allocate 11 to 38 percent 

less in 2012 relative to the 2009 Final Rule (see the Adjustment Memo in the docket for the 

rationale behind the proposed reduction). In the 2009 Final Rule, 2013 and 2014 consumption 

allocations were 35,900 MT and 31,100 MT, respectively. The agency proposed to allocate 13 to 

42 percent less in 2013 and 15 to 47 percent less in 2014. 

As discussed in sections IV.B.1. and IV.B.2., comments directly addressing reclamation, 

recovery, and reuse, and the availability of existing inventory from past years generally support 

EPA’s estimates of the inventory and recoverable material that are available each year to meet 

HCFC-22 servicing need. The agency also received 54 comments (some signed by multiple 

organizations) that address the overall consumption allocation in more general terms. Forty-two 

comments support the decrease in allowances relative to the 2009 Final Rule and 13 comments 

oppose the decrease. In addition to these comments, EPA received 47 additional comments that 

oppose a decrease in HCFC-22 production, but use the word “production” in a general sense. 

Upon reading, EPA believes the intent was to oppose a decrease in consumption, or “production 

for U.S. use.” 

Generally, comments in support of the reduction state that a lower allocation will increase 

the value of HCFC-22, resulting in more reclamation and increased incentives to recover HCFC22 from existing systems. A lower allocation encourages an orderly phaseout and still provides 

enough allowances to meet servicing needs. Supporters of a lower allocation state that a 

reduction is justified because of lower-than-expected need for HCFC-22 and the availability of 
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existing inventory from past years. Three environmental organizations state that a reduction is 

(1) necessary to protect human health and the environment, and (2) practicable in terms of 

technology, safety, and availability of alternatives. 

Comments supporting a higher HCFC-22 consumption allocation cite concerns about 

higher price, limited access to refrigerant and unexpected costs, all of which could lead to 

premature system retirements. Others point to U.S. compliance with the Montreal Protocol under 

the 2009 Final Rule, and are against any reductions to those allocation levels. 

EPA responds to individual comments in the Response to Comments, but generally 

agrees that the amount of HCFC-22 provided in the 2009 Final Rule was too high to foster an 

orderly transition. In 2015, the U.S. must reduce its production and consumption of all HCFCs to 

below 10 percent of its historic HCFC baseline under the Montreal Protocol. By 2020, HCFC 

production and consumption must be below 0.5 percent of the historic baseline and under EPA 

regulations HCFC-22 may not be produced or imported at all. Rather than create a drastic change 

in 2015, the agency’s goal is to finalize an allocation for 2012-2014 that fosters the market 

transition necessary to prevent future disruptions. 

Considering that objective, EPA is providing allowances in this final rule based on its 

assessment of market conditions. For 2012, the timing of this rule means that EPA is looking 

back at actual events during 2012 rather than projecting future needs. The agency is issuing 2012 

HCFC-22 consumption allowances at the lowest proposed amount, because that amount is 

consistent with the industry’s actual operation in 2012. The appropriateness of this level is 

supported by the fact that EPA has not received any reports of HCFC shortages during the 2012 

air-conditioning season. At the same time, this level is commensurate with the amount of 

consumption authorized in the January 20, 2012, No Action Assurance provided by Cynthia 

Giles, Assistant Administrator for Enforcement and Compliance Assurance. EPA selected this 

amount as reasonable for purposes of the No Action Assurance, recognizing that it was within 
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the proposed range. Issuing allowances at the No Action Assurance level enables companies to 

account for consumption that occurred in 2012 in accordance with the No Action Assurance. As 

stated in the No Action Assurance, any HCFCs produced and imported in 2012 pursuant to the 

No Action Assurance count towards a company’s allocation and require the expenditure of 2012 

allowances. 

In 2013-2014, EPA is making reductions for existing inventory and for reclamation and 

reuse, given the support of comments on the agency’s analysis and additional data provided 

during the comment period. EPA is not reducing allowances to account for recovery and reuse in 

the large retail food sector because there were not sufficient comments or data, and the agency 

already accounts for supermarket recovery (but not in-house reuse) in its Vintaging Model. With 

these adjustments, the amount of allowed consumption in 2012-2014 is 29 percent below 

amounts in the 2009 Final Rule for the same period. The agency believes that the amounts in this 

rulemaking will increase market incentives to properly manage and recover HCFC-22 while still 

allowing for servicing of existing HCFC-22 systems.

EPA is finalizing the following HCFC-22 consumption allocations for 2012-2014: 

2012: 17.7 percent of baseline, totaling approximately 25,100 MT 

2013: 18.0 percent of baseline, plus 2,954 MT of recoupment, totaling approximately 

28,500 MT 

2014: 14.2 percent of baseline, plus 2,954 MT of recoupment, totaling approximately 

23,100 MT 

With this amount, EPA’s total HCFC consumption allocation in 2012-2014, including 

recoupment, is at least 55 percent below the Montreal Protocol cap each year, and is below 

servicing need as estimated in the Servicing Tail Report. 

2. How Many HCFC-22 Production Allowances Is EPA Allocating in 2012-2014? 
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In the proposed rule, EPA considereddescribed three options for providing production 

allowances. In considering each of these options, EPA recognized that taking the 2008 transfers 

into account in accordance with the Arkema decision affects not only the HCFC-22 consumption 

baseline, but the HCFC-22 production baseline as well. Two options would have decoupled 

baseline percentage allocated for production and consumption. These options provided (1) 

approximately the same amount of production allowances as the 2009 Final Rule or (2) the same 

percentage of baseline as the 2009 Final Rule. The third option would have kept production and 

consumption allowances at the same percentage of baseline, so the resulting production 

allocation would be dependent on the final consumption baseline percentage. Option 3 is 

reflected in the January 20, 2012 and January 20138, No Action AssuranceAssurances sent to 

allowance holders by the Assistant Administrator for Enforcement and Compliance Assurance. 

EPA took comment on providing the following percentages of baseline production in 40 CFR 

82.16: 

Option 1: 28.7% in 2012, 25.3% in 2013, 21.9% in 2014 

Option 2: 34.1% in 2012, 30.1% in 2013, 26.1% in 2014 

Option 3: 17.7% to 25.5% in 2012, 14.7% to 22.1% in 2013, 11.6% to 18.5% in 2014 

Under option 1, the aggregate allocation in 2012 would be about two percent lower than 

in the 2009 Final Rule (37,050 MT in the proposed rule vs. 37,721 MT in the 2009 Final Rule). 

The intent waswould be to keep productionthe aggregate number of allowances at about the same 

level as the amount finalized in the 2009 Final Rule. The memo to the docket for this rulemaking 

titled “Effects of HCFC-22 and HCFC-142b Baseline Changes: 2009 Final Rule vs. 2011 

Proposed Rule,” (Baseline Memo) explains these slight differences. While this option would 

keep the aggregate number of allowances at about the same level, U.S. production could actually 

 

8

 The January 2013 No Action Assurance also preserved all recoupment options.
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fall under this option, because under Arkema a greater share of the allowances would go to a 

company that does not produce in the U.S.9

Under option 2, the production baseline percentage would be the same as in the 2009 

Final Rule. The petitioners in Arkema would receive the benefit of their 2008 baseline transfers; 

other companies with production baselines would get the same number of production allowances 

as they received in the 2009 Final Rule, since their baselines did not change. Compared to While 

the percentage is the same as the 2009 Final Rule, this option would increase allowedsince the 

aggregate production baseline is higher, the number of production allowances increases by 6,299 

MT in 2012, 5,560 MT in 2013, and 4,821 MT in 2014. However, as noted above, this would not 

necessarily translate to an increase in production.

In addition to asking for comment on the two proposed decoupling options, the agency 

also asked for comment on several related matters. EPA asked for comment on whether, relative 

to the 2009 Final Rule, an increase inallocating the total numbersame percentage of baseline for

production allowances, as proposed under option 2, would result in (1) an increase in U.S. 

consumption, (2) an increase in U.S. production, either for domestic use or for export, and/or (3) 

an increase in worldwide production and/or consumption of HCFCs. EPA also invited comment 

on the implications of any such an increase for the U.S. economy and the global environment, 

particularly as it relates to the smooth U.S. phaseout of HCFC-22. 

EPA received nine comments on EPA’s proposed production allocation. Six comments 

support a higher level of production allowances than consumption allowances (options 1 and 2) 

and three comments oppose a higher numberlevel of production allowances. EPA provides a 

 

9

 Data submitted to the Greenhouse Gas Reporting program on byproducts of the HCFC-22 production process 

indicates that only three of the four companies holding production allowances produced HCFC-22 in 2010 and 2011 

(see http://ghgdata.epa.gov/ghgp/main.do and the memo in the docket titled “2010-2011 Greenhouse Gas Reporting 

Program Data on HCFC-22 Production Byproducts”). While this company can transfer its allowances to another 

producer, the fact that they do not produce in the U.S. makes it unlikely that all calendar-year production allowances 

will be used.
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complete summary of and response to all comments in the Response to Comments, but 

highlights and responds to most of the comments in this preamble. 

Very few comments voiced a preference for a specific production option. However, two 

commenters specifically support option 2, which provides for an increasethe same percentage of 

baseline as provided in production allowances.the 2009 Final Rule. Five commenters are in 

support of higher production allowancesoptions 1 and 2 so that domestic companies can remain 

competitive in the global market. One commenter indicates U.S. companies could lose global 

market share if production allowances were not decoupled. Four commenters point out that 

increasingallocating more production allowances willthan consumption allowances could allow 

for the possibility of more export, but will not lead to increased domestic consumption since 

consumption allowances limit the amount of newly-produced HCFC-22 entering the U.S. 

market. Comments also indicate allowing production in the U.S. could be environmentally 

beneficial if it displaces production at facilities that do not control byproduct emissions of 

hydrofluorocarbon (HFC)-23, which has a global warming potential of 14,80010. The comment 

cites the growth of HFC-23 emissions globally and indicates that facilities in Article 5 countries 

do not control HFC-23 emissions to the same degree as companies operating in the U.S. Since 

U.S. producers of HCFC-22 largely control their HFC-23 byproduct emissions, the comment 

states that production in the U.S., as opposed to other countries, could actually result in lower 

greenhouse gas emissions. 

Comments opposing an increase in production allowancesoptions 1 and 2 note that the 

Protocol and domestic regulations already allow for additional production in order to serve basic 

domestic needs of developing countries in the form of Article 5 allowances. They argue that 

allowing more production than consumption may increase the global surplus of HCFC-22 and 

decrease price, thus discouraging appropriate handling of the gas. They argue this could lead to 

 

10 Source for the GWP of HFC-23: Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report: 

Climate Change 2007 (AR4) 
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an increase in global use and emissions of HCFC-22. One commenter also states that if a 

reduction in consumption allowances is justified, so is a decrease in production allowances for 

the same reason. 

 EPA does not agree that increasing production allowances increasesoptions 1 and 2 

increase environmental harm relative to the 2009 final rule.Final Rule. First, EPA would only be 

providing the same number of overall production allowances or the same percentage of baseline 

for production as in the 2009 Final Rule. In the proposal, EPA also noted that production of 1 

one kilogram of an HCFC requires both a production allowance and a consumption allowance 

(82.15(a)(1), (2)). Thus, an increase inleaving production allowances at the same percentage or at 

the same overall amount without a corresponding increase in consumption allowances does not 

automaticallycannot result in greater production. AU.S. consumption. Also, in order to produce 

for export, a company must submit documentation to verify the export of an HCFC for which 

consumption allowances were expended in order to request a reimbursement of spent 

consumption allowances. The agency reviews the documentation and issues a notice to either 

deny or grant the request. Therefore, a company would not be able to produce more HCFC-22 

unless it had exported an equal amount of material and been granted a refund of spent 

consumption allowances. Additionally, since HCFC consumption is capped globally under the 

Montreal Protocol, companies exporting HCFCs are constrained by the consumption caps 

established in the country receiving the material.

 With regard to HFC-23, EPA has worked with industry through its HFC-23 Emission 

Reduction Partnership to encourage companies to reduce HFC-23 byproduct emissions from the 

manufacture of HCFC-22. In the 2010 U.S. Climate Action Report, the agency noted that 

“despite a four percent increase in the production of HCFC-22 compared to 1990, EPA estimates 

that total HFC emissions in 2007 were significantly below 1990 levels. Compared to business as 

usual, EPA estimates the partnership reduced emissions by 17.8 Tg CO2 Eq. in 2007,” (see page 
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55 of the U.S. Climate Action Report 2010, available in the docket). Currently, some HFC-23 

emissions in Article 5 countries are mitigated through Clean Development Mechanism (CDM) 

projects using destruction technologies, namely thermal oxidation or plasma arc. However, not 

all HCFC-22 facilities are eligible to earn credits under CDM; therefore, a number of facilities 

may not have emission reduction technology installed. There are about 26 plants producing 

HCFC-22 in Article 5 countries. Approximately 17 plants have CDM projects that control HFC23 byproduct emissions. The remaining nine plants may not have emissions control technologies 

installed. HCFC-22 production in the United States may provide environmental benefits in 

reduced HFC-23 emissions to the extent U.S. production supplants the Article 5 production in 

those specific plants that do not have HFC-23 byproduct destruction technologies installed. 

 Some commenters argue that EPA will increase the global supply of HCFC-22 through 

an increase in production allowances. EPA disagrees. First, the process for requesting additional 

consumption allowances, as described above, does not give a company additional consumption 

allowances until after an export has taken place. Additionallyby allocating more production than 

consumption allowances. EPA disagrees. First, by decreasing consumption allowances relative to 

the 2009 Final Rule, EPA is decreasing potential U.S. consumption of virgin material by more 

than 31,100 MT over 2012-2014. Even if every single additional production allowance was used 

for export, global consumption would still be at least 9,800 MT less than the allocations provided 

in the 2009 Final Rule if all other factors are constant. SinceBecause at least one company 

holding production allowances does not produce HCFC-22 in the United States, it is unlikely that 

every production allowance will be used. As a result, the net reduction in global consumption of 

HCFC-22 may be even greater. Finally, starting in 2013, Article 5 countries’ consumption of 

HCFCs is capped, which further limits global HCFC-22 demand (see Montreal Protocol Art. 5, 

para. 8 ter.). As noted below, EPA is issuing additional production allowances using the same 

percentages as in the 2009 Final Rule only for the 2013 and 2014 control periods. 
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EPA is also concerned that decreasing production allowances for the remainder of the 

current regulatory period could deprive certain U.S. manufacturers of existing global business. 

Article 5 allowances already allow the export of HCFC-22; but only to Article 5 countries. 

Providing more production than consumption allowances could allow companies to 

exportcontinue exporting to non-Article 5 countries, which have the same overall Montreal 

Protocol phaseout schedule as the United States but may use a basket approach rather than a 

chemical-by-chemical approach to phasing out HCFCs. Also, using the additional production 

allowances could assistsame percentage of baseline as the 2009 Final Rule should allow

companies withto continue their exports to Article 5 countries, which are just beginning to phase 

out HCFCs. Since consumption allowances already limit production for U.S. use, EPA is 

providing more the same percentage of baseline for HCFC-22 production than consumption 

allowancesas in the 2009 Final Rule beginning in 2013 to allowavoid a scenario in which U.S. 

manufacturers might have to compete globally, and potentially reduce the need for less 

efficientdecrease their production abroad.for global markets relative to the amount allowed under 

the 2009 Final Rule. As noted previously, U.S. production may provide environmental benefits 

when compared to production in plants that lack HFC-23 byproduct destruction technologies. 

Recognizing the timing of this rule’s signature, and the fact that Article 5 countries’ 

HCFC consumption is not capped until 2013, the agency is adopting a different approach for 

2012 than for 2013 and 2014. The agency is issuing 2012 HCFC-22 production allowances at the 

lowest proposed amount, because that amount is consistent with the industry’s actual operation 

in 2012. The appropriateness of this level is supported by the fact that EPA has not received any 

reports of HCFC shortages during the 2012 air-conditioning season. At the same time, this level 

is commensurate with the amount of production authorized in the January 20, 2012, No Action 

Assurance provided by Cynthia Giles, Assistant Administrator for Enforcement and Compliance 

Assurance. EPA selected this amount as reasonable for purposes of the No Action Assurance, 
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recognizing that it was within the proposed range. Issuing allowances at the No Action 

Assurance level enables companies to account for production that occurred in 2012 in 

accordance with the No Action Assurance. As stated in the No Action Assurance, any HCFCs 

produced in 2012 pursuant to the No Action Assurance count towards a company’s allocation 

and require the expenditure of 2012 allowances. EPA is finalizing production option 2 for 2013 

and 2014. 

In summary, EPA believes an increase inproviding the same percentage of baseline as 

used in the 2009 Final Rule for production allowances in 2013-2014 (1) cannot lead to an 

increase in U.S. consumption, (2) could result in more U.S. production, particularly for 

exportallows U.S. producers to produce the same amount as under the 2009 Final Rule, with 

economic benefits for the U.S. and potentiallypotential environmental benefits to the extent U.S. 

producers are more efficientthat production might otherwise occur in plants that lack HFC-23 

byproduct destruction technologies, and (3) would not result in a global increase in production or 

consumption of HCFC-22 beyond the limits agreed to under the Montreal Protocol. In addition, 

the environmental benefits achieved by the reduction in consumption allowances outweigh any 

potential increase in U.S. production for export. As such, EPA is providingallocating the 

following amounts of HCFC-22 production allowances in 2012-2014: 

- 2012: 17.7% of baseline, resulting in approximately 22,800 MT of HCFC-22 

production 

- 2013: 30.1% of baseline, plus 2,306 MT of recoupment, resulting in approximately 

41,200 MT of HCFC-22 production 

- 2014: 26.1% of baseline, plus 2,306 MT of recoupment, resulting in approximately 

36,000 MT of HCFC-22 production 

Combined with allowed production for other HCFCs, these finalized amounts are at least 36 

percent below the Montreal Protocol production cap of 3,884.25 ODP-weighted MT. 
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3. How Many HCFC-142b Consumption and Production Allowances Is EPA Allocating 

in 2012-2014?

 Establishing HCFC-142b baseline allowances that take into account the 2008 interpollutant transfers results in 2,047 MT of aggregate baseline consumption allowances and 9,444 

MT of aggregate baseline production allowances. Consistent with the 2009 Final Rule, EPA 

proposed to allocate 100 MT of consumption allowances. To get to that level, EPA would 

allocate 4.9 percent of the aggregate consumption baseline, as reflected in the table at section 

82.16. 

 Using the same percentage (4.9 percent) of the aggregate production baseline, EPA 

proposed to allocate 463 MT of HCFC-142b production allowances for each control period 

between 2012 and 2014. The aggregate allocation for production is higher than the amount 

allocated in the 2009 Final Rule (463 MT in this rule vs. 118 MT in the 2009 Final Rule). This is 

because the 2008 transfers out of HCFC-142b involved significantly more consumption 

allowances than production allowances. Taking those transfers into account decreases the HCFC142b consumption baseline substantially but has a lesser impact on the HCFC-142b production 

baseline. 

 The agency received only four comments on HCFC-142b allocations. Two comments 

strongly support reducing HCFC-142b consumption and production allowances; one of these 

commenters states that HCFC-142b is only used in blends to service old CFC equipment. Of the 

other two comments, one supports the consumption allocation of 100 MT, noting that HCFC142b is a critical component of a refrigerant blend, but that production allowances need not 

increase. The other commenter asks that EPA not lower the HCFC-142b production allocation to 

compensate for any increase in HCFC-22 production. 

 EPA did not propose to decrease HCFC-142b allowances in the proposed rule. The 

agency assessed the need for the chemical in the 2009 Final Rule and will revisit the need for 
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HCFC-142b for servicing during the rulemaking for the next regulatory period. Furthermore, as 

with HCFC-22, increased production allowances for HCFC-142b could result in more HCFC142b for export. Increased exports could benefit the U.S. economy without increasing U.S. use 

of HCFC-142b. For thisese reasons, the agency is finalizing its proposed consumption and 

production allocations for HCFC-142b. There will be 100 MT of HCFC-142b consumption 

allowances and 463 MT of production allowances issued in the years 2012, 2013, and 2014. 

These allowance amounts are 4.9 percent of the HCFC-142b baselines, and keep the HCFC-142b 

consumption allocation approximately the same as in the 2009 Final Rule. 

 To provide recoupment to companies for lost opportunities in 2010, EPA is allocating a 

total of 61 MT of HCFC-142b consumption allowances and 397 MT of HCFC-142b production 

allowances in addition to the percentage of baseline issued. Since the agency is providing 

recoupment over two years, there will be an additional 30 MT of consumption allowances and 

198 MT of production allowances in 2013 and 2014. See section IV.B.6. of this preamble for 

more discussion on recoupment allowances. 

4. How Does the Aggregate Allocation for HCFC-22 and HCFC-142b Translate Entity-byEntity?

 For 2012-2014, EPA is setting production and consumption baselines for HCFC-22 and 

HCFC-142b on the same basis as in the 2009 Final Rule, except that EPA is making adjustments 

to reflect (1) the 2008 inter-pollutant transfers of baseline allowances deemed permanent by the 

Court, (2) inter-company, single-pollutant transfers of baseline allowances that occurred in 2010, 

and (3) changes in company names that occurred after the 2009 Final Rule was signed. All of 

these changes were made in the 2011 Interim Final Rule (76 FR 47451), and EPA proposed to do 

the same for 2012-2014. Applying the approach described above, EPA is apportioning 

production and consumption baselines for HCFC-22 and HCFC-142b to the following entities in 

the following amounts: 
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Table 2: Baseline Production Allowances of HCFC-22 and HCFC-142b in 40 CFR 82.17 

Person Controlled Substance Allowances (kg) 

Arkema 

HCFC-22 46,692,336

HCFC-142b 484,369

DuPont HCFC-22 42,638,049

Honeywell 

HCFC-22 37,378,252

HCFC-142b 2,417,534

MDA Manufacturing HCFC-22 2,383,835

Solvay Solexis HCFC-142b 6,541,764

Table 3: Baseline Consumption Allowances of HCFC-22 and HCFC-142b in 40 CFR 82.19 

Person Controlled Substance Allowances (kg) 

ABCO Refrigeration Supply HCFC-22 279,366

Altair Partners HCFC-22 302,011

Arkema 

HCFC-22 48,637,642

HCFC-142b 483,827

Carrier Corporation HCFC-22 54,088

Coolgas Investment Property HCFC-22 1,040,458

DuPont 

HCFC-22 38,814,862

HCFC-142b 52,797

H.G. Refrigeration Supply HCFC-22 40,068

Honeywell HCFC-22 35,392,492
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HCFC-142b 1,315,819

Mexichem Fluor Inc. HCFC-22 2,546,305

Kivlan & Company HCFC-22 2,081,018

MDA Manufacturing HCFC-22 2,541,545

Mondy Global HCFC-22 281,824

National Refrigerants HCFC-22 5,528,316

Refricenter of Miami HCFC-22 381,293

Refricentro HCFC-22 45,979

R-Lines HCFC-22 63,172

Saez Distributors HCFC-22 37,936

Solvay Fluorides HCFC-22 3,781,691

Solvay Solexis HCFC-142b 194,536

USA Refrigerants HCFC-22 14,865

 The finalized baselines listed above are identical to the tables presented in the 2011 

Interim Final Rule (76 FR 47451). 

V. How Is EPA Changing the Regulations Governing Transfers of Class II 

Allowances? 

The agency is concerned about the possibility of companies undermining the HCFC 

chemical-by-chemical phaseout by performing inter-pollutant transfers in advance of future 

phaseout steps. EPA interprets the 2003 Final Rule, which established the transfer provisions at 

40 CFR 82.23, as allowing only single-pollutant, inter-company transfers to be made on a 

permanent basis. Nevertheless, EPA recognizes that in Arkema, the Court found that “EPA’s 

practice under the 2003 Rule was to allow petitioners’ baseline transfers of inter-pollutant 

allowances” (618 F.3d at 8). Therefore, EPA clarified its current policy on inter-pollutant 
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transfers in the 2011 Interim Final Rule (76 FR 47459). In January 2012, EPA proposed to 

modify the regulatory text to dispel any possibility of confusion in the future. 

Through this final action, the agency is modifying 40 CFR 82.23 to address the duration 

of inter-pollutant transfers, and to reflect prior agency statements pertaining to inter-pollutant 

transfers of Article 5 allowances. 

A. How Is EPA Changing the Regulations Governing Permanent Transfers of Class II 

Allowances? 

Sections 607(b) and (c) of the CAA address inter-pollutant and inter-company transfers 

of allowances, respectively. Inter-pollutant transfers are the transfer (or conversion) of an 

allowance of one substance to an allowance of another substance on an ODP-weighted basis. 

Inter-company transfers are transfers of allowances for the same ODS from one company to 

another company. Section 607(c) also authorizes inter-company transfers combined with interpollutant transfers, so long as the requirements of both are met. The corresponding regulatory 

provisions for HCFCs appear at 40 CFR 82.23. 

EPA proposed to modify section 82.23 to clarify that the agency will not approve future 

inter-pollutant transfers of baseline production allowances or baseline consumption allowances. 

EPA received two comments directly referring to this proposal. One comment supports EPA’s 

proposed changes because it will prevent future manipulation of the allowance program. The 

commenter also believes the CAA prohibits permanent inter-pollutant transfers. Another 

commenter encourages EPA to reconsider its proposed changes and to allow for inter-pollutant 

baseline transfers if an allowance holder has historically made the transfers. EPA also received 

two comments on the 2012-2014 baselines that are relevant. Both commenters state that section 

607 of the CAA prohibits baseline inter-pollutant transfers. 

 As discussed in the proposed rule, EPA remains concerned about the potential for future 

manipulation of the allocation system if inter-pollutant baseline transfers are allowed to affect a 
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company’s baseline in future regulatory periods. For example, a HCFC-22 producer or importer 

could dominate the HCFC-123 market in 2015 by converting its HCFC-22 baseline to HCFC123 baseline in 2014. Given the different ODPs of HCFC-22 and HCFC-123 (0.055 and 0.02, 

respectively), converting one baseline allowance of HCFC-22 would result in 2.75 baseline 

allowances of HCFC-123. Also, since companies hold many more HCFC-22 baseline allowances 

than HCFC-123 baseline allowances, converting those HCFC-22 baseline allowances would 

have an overwhelming effect on the current HCFC-123 baseline allowance holders and on the 

overall market. 

 As another example, in 2020 EPA will no longer be issuing HCFC-22 production or 

consumption allowances (see section 82.16(e)). EPA expects that companies with only HCFC-22 

or HCFC-142b allowances would no longer be producing or importing HCFCs at that date. If 

EPA were to allow inter-pollutant baseline transfers that carried forward into the new regulatory 

period, companies with HCFC-22 baselines could convert them all to baselines for HCFC-123 in 

2019. Perpetuating the HCFC-22 baselines in a new form would be counter to the design of the 

chemical-by-chemical phaseout, under which the baseline allowances for a particular chemical 

are intended to drop out of the system upon the phase-out of that chemical. Thus, there are 

important policy reasons for not taking inter-pollutant transfers from prior regulatory periods into 

account in establishing baselines for new regulatory periods. 

 EPA has been clear in its past statements about its policy on what happens to allowances 

when a chemical is phased out. In the 1999 Advanced Notice of Proposed Rulemaking (“1999 

ANPRM”, 64 FR 16373), EPA discussed options for establishing the HCFC allocation system. 

Referring to HCFC-141b, which was phased out in 2003. EPA stated at 64 FR 16378: 

It is important to note that, under any scenario, when the phaseout date for HCFC141b is reached in 2003, all HCFC-141b consumption (production + importsexports) will cease. Those who did not participate in the HCFC-141b market will 

not be affected in 2003. However, those who did participate in the HCFC-141b 

market— through, for example, producing or importing HCFC-141b—would no 
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longer receive any allowances associated with their historic HCFC-141b activity, 

and thus any authorization to produce or import HCFC-141b. Likewise, any 

company that, through a baseline trade, received allowances associated with 

historic HCFC-141b would no longer receive any allowances associated with the 

baseline trade in 2003 (emphasis added). 

 In the 2001 Notice of Proposed Rulemaking for the HCFC allocation system (“2001 

NPRM,” 66 FR 38064), EPA elaborated further on what happens when a chemical is phased out 

under a chemical-by-chemical phaseout at 66 FR 38068-69: 

On the first HCFC phaseout date of 2003, those companies that received baseline 

consumption allocations (or received a permanent baseline transfer)...of HCFC141b would subtract that portion from their total consumption allocation. If 

permanent inter-pollutant trades had been made, an amount equal to the ODPweighted kilograms of baseline HCFC–141b allowances that had been received in 

the transfer would be deducted from the baseline allocation...The same would 

occur in [later years] for the relevant chemicals being phased out (emphasis 

added). 

 Finally, in the 2003 Final Rule establishing the HCFC phaseout, EPA stated its position 

at 68 FR 2835: “EPA will allow permanent transfers of baseline allowances with those 

allowances disappearing at the phaseout date for the specific HCFC, regardless of what interpollutant transfers had taken place.” Because EPA has been clear on this point that baseline 

allowances associated with a specific HCFC—regardless of their current owner or current 

status—disappear when that HCFC is phased out, the agency continues to believe allowing interpollutant baseline transfers only on an annual basis is appropriate. 

 The commenter objecting to the proposed changes to the transfer regulations cited several 

issues that EPA should consider. The commenter cites its past practice of annually transferring 

its HCFC-142b allowances to HCFC-22 and the need to consider the precedent this proposed 

change might have. The agency notes that prohibiting inter-pollutant baseline transfers in no way 

precludes the commenter, or any allowance holder, from continuing to make annual interpollutant transfers. However, when EPA established the “worst-first” HCFC phaseout, the goal 
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was to encourage companies to move out of HCFCs, not to continually produce or import 

HCFCs by switching from one chemical to another. 

 Additionally, the commenter envisions a scenario where an allowance holder could 

change the focus of its business to produce and sell a substance that does less harm to the 

environment. While an allowance holder could move to an HCFC that is less harmful to the 

ozone layer, the switch results in no environmental benefit (excepting the 0.1 percent transfer 

offset) if all of the transferred allowances are used. Since transfers are weighted based on their 

ODP, moving from a higher ODP chemical to a lower ODP chemical would result in more 

allowances for the lower ODP chemical and an equal environmental footprint. 

 Further, if EPA were to allocate allowances for the next regulatory period taking interpollutant transfers into account, those transfers would only affect aggregate company baselines 

in specific chemicals, not the total amount allocated. In the case of the 2011 Interim Final Rule, 

when EPA updated baselines to include past inter-pollutant transfers, there was no environmental 

benefit to doing so. The way EPA allocates allowances relies on the estimate of market servicing 

need for a chemical and then divides that amount up proportionally based on a company’s 

baseline allowances for that particular chemical (see section IV. of this preamble for the detailed 

description). While taking baseline inter-pollutant transfers into account may have tremendous 

benefits for the company making the transfers, it does nothing for the environment. As described 

above, EPA sees this use of inter-pollutant transfers as manipulating the system, and is clarifying 

that baseline inter-pollutant transfers will not be allowed in the future. 

 Two commenters state that modifying the baselines by taking into account inter-pollutant 

transfers is contrary to the CAA. They argue that section 607 of the CAA allows EPA to approve 

inter-pollutant transfers of allowances only on a year-to-year basis, and point to language in 

section 607(b) stating that EPA regulations are to permit “a production allowance for a substance 

for any year to be transferred for a production allowance for another substance for the same year 
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on an ozone depletion weighted basis.” Similar arguments were made in comments submitted on 

the 2008 Proposed Rule and on the 2011 Interim Final Rule. 

 EPA does not agree with the comment that the language of section 607(b) is clear on its 

face. The statutory language is ambiguous, and EPA has discretion to choose a reasonable 

interpretation of that language. EPA determined in the 2009 Final Rule that section 607(b) is best 

read as permitting only year-by-year inter-pollutant transfers. EPA continues to believe that this 

is the best interpretation of the statutory language. Section 607(b) states that EPA’s rules are to 

permit “a production allowance for a substance for any year to be transferred for a production 

allowance for another substance for the same year.” This language emphasizes the year-by-year 

nature of such transactions. No parallel language appears in section 607(c). That section does, 

however, provide that any inter-pollutant transfers between two or more persons must meet the 

requirements of section 607(b). 

 As the Court noted, “the agency is certainly entitled to . . . institute a program that forbids 

baseline inter-pollutant transfers in the future,” (Arkema v. EPA, 618 F.3d at 9). Hence, EPA 

concludes that requiring all inter-pollutant transfers to be conducted on a yearly – and thus 

temporary – basis going forward is the approach most consistent with the wording of section 

607(b). Further discussion of the reasons for limiting inter-pollutant transfers to those conducted 

on a calendar-year basis is available in the Response to Comments for the 2009 Final Rule 

(included in the docket for this rulemaking). 

 Consistent with the Court’s decision regarding past inter-pollutant transfers (those 

conducted during the prior regulatory period), the baselines established in this action for 2012-

2014 take into account the 2008 inter-pollutant baseline transfers. EPA is clarifying, however, 

that it has not approved any inter-pollutant transfers of baseline allowances in the current 

regulatory period, and for the reasons given in the 2009 Final Rule, the 2011 Interim Final Rule, 

and in this action, in the future, EPA will approve inter-pollutant transfers only on a year-by-year 
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basis. Thus, in the context of the allowance system for protection of stratospheric ozone, 

companies should not expect that any future inter-pollutant transfers they conduct will affect 

their baselines either in the current regulatory period or any future regulatory period. 

 EPA is revising the regulations to avoid any further dispute about the agency’s position 

on this issue. The new language clarifies that permanent inter-pollutant transfers of baseline 

allowances will not be approved. In addition, EPA is clarifying that the procedures in section 

82.23(a) apply to permanent, single-pollutant transfers. 

B. How Is EPA Changing the Regulations Governing Transfers of Article 5 Class II 

Allowances?

 Article 5 allowances for Class II substances are the privileges granted under 40 CFR 

82.18(a) to produce the specified HCFC for export only to countries listed in 40 CFR Subpart A, 

Appendix C, Annex 4. The countries listed in that annex are developing countries whose control 

obligations under the Montreal Protocol are addressed in Article 5 of the treaty and hence are 

referred to as “Article 5 Parties.” EPA proposed to revise the regulations at 40 CFR 82.23(b) to 

reflect its previously stated intent to allow inter-pollutant transfers of Article 5 allowances. 

EPA promulgated section 82.23 as part of the 2003 Final Rule (68 FR 2820). EPA 

specifically discussed the inter-pollutant transfer of Article 5 allowances at 68 FR 2834 stating, 

“For example, after the 2003 phaseout of HCFC-141b and before 2010, a company 

receiving...Article 5 allowances for HCFC-141b could engage in inter-company transfers of 

those allowances, but not in inter-pollutant transfers [because no other HCFC Article 5 

allowances would be available during that period]. In 2010, when...Article 5 allowances for 

HCFC-22 and HCFC-142b become available, these allowances will be transferable with the ones 

for HCFC-141b.” These statements indicate that the agency intended for companies to be able to 

perform inter-pollutant transfers of Article 5 allowances. The omission of Article 5 allowances 

from section 82.23(b) appears to have been an oversight. Therefore, EPA proposed to revise the 
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regulations to specifically provide for the inter-pollutant transfers of Article 5 allowances 

through this rulemaking. As with other types of inter-pollutant transfers, these transfers would be 

limited in duration to a single year. The agency received two comments on its proposal to revise 

the text at section 82.23(b), which EPA responds to in the Response to Comments. 

 EPA also proposed to change the text at 82.23(a)(ii) for consistency with its previously 

stated policy on offsets for transfers of Article 5 allowances. Section 607(a) requires that 

transfers of production allowances “will result in greater total reductions in the production in 

each year of...class II substances than would occur in that year in the absence of such 

transactions.” In a November 10, 1994, Federal Register notice, EPA stated its interpretation that 

the section 607 offset requirement applies to Article 5 allowance transfers (59 FR 56287): “Interpollutant transfers of Article 5 allowances will continue to require a one percent offset, as 

required by section 607 of the CAA...” In the May 10, 1995, final rule at 60 FR 24980, EPA 

stated that “[w]ith today's action, EPA permits inter-pollutant and inter-company transfers of 

Article 5 allowances as proposed...” meaning, EPA intended to require an offset for transfers of 

Article 5 allowances in the class I allowance system. 

This intent to require an offset is also reflected in certain provisions of the class II 

allowance system in 40 CFR part 82. Section 82.23(a)(i)(G) specifically requires an offset for 

Article 5 allowance inter-company transfers, stating that the transfer claim must set forth: “For 

trades of consumption allowances, production allowances, export production allowances, or 

Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted quantity 

traded that will be deducted from the transferor's allowance balance.” The offset is also 

mentioned at section 82.23(a)(iii): “In the case of transfers of...Article 5 allowances, EPA will 

reduce the transferor's balance of unexpended allowances by the quantity (in kilograms) to be 

converted plus 0.1 percent of that quantity.” This contrasts with section 82.23(a)(ii)(A), which 

states that in the case of Article 5 allowances, “EPA will reduce the transferor’s balance of 
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unexpended allowances...by the quantity to be transferred,” with no mention of an offset. In 

addition, in the introductory text for 82.23(a)(ii), Article 5 allowances are not mentioned: “The 

transfer claim is the quantity (in kilograms) to be transferred plus, in the case of transfers of 

production or consumption allowances, 0.1 percent of that quantity;” EPA proposed to amend 

82.23(a)(ii) and 82.23(a)(ii)(A) to require an offset for transfers of Article 5 allowances. EPA did 

not receive comments on this proposed clarification to the regulatory text, and is finalizing the 

clarification as proposed. Section 82.23(a) is now consistent throughout. Section 82.23(b) 

requires an offset of 0.1 percent for all inter-pollutant transfers and since EPA is adding Article 5 

allowances to section 82.23(b), an offset will automatically apply. 

To reflect EPA’s intent to allow inter-pollutant transfers of Article 5 allowances, and the 

requirement that an offset be deducted when an entity is transferring Article 5 allowances, the 

agency is finalizing the proposed modifications to the regulatory text at 40 CFR 82.23(a)(ii), 

82.23(a)(ii)(A), and 82.23(b). 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 

 Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a 

“significant regulatory action” since it raises “novel legal or policy issues.” Accordingly, EPA 

submitted this action to the Office of Management and Budget (OMB) for review under 

Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in 

response to OMB recommendations have been documented in the docket for this action. 

 EPA did not conduct a specific analysis of the benefits and costs associated with this 

action. Many previous analyses provide a wealth of information on the costs and benefits of the 

U.S. HCFC phaseout including: 

• The 1993 Addendum to the 1992 Phaseout Regulatory Impact Analysis: Accelerating the 
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Phaseout of CFCs, Halons, Methyl Chloroform, Carbon Tetrachloride, and HCFCs.

• The 1999 Report Costs and Benefits of the HCFC Allowance Allocation System.

• The 2000 Memorandum Cost/Benefit Comparison of the HCFC Allowance Allocation 

System. 

• The 2005 Memorandum Recommended Scenarios for HCFC Phaseout Costs Estimation. 

• The 2006 ICR Reporting and Recordkeeping Requirements of the HCFC Allowance 

System.

• The 2007 Memorandum Preliminary Estimates of the Incremental Cost of the HCFC 

Phaseout in Article 5 Countries.

• The 2007 Memorandum Revised Ozone and Climate Benefits Associated with the 2010 

HCFC Production and Consumption Stepwise Reductions and a Ban on HCFC Precharged Imports.

• The 2009 ICR Reporting and Recordkeeping Requirements of the HCFC Allowance 

System.

A memorandum summarizing these analyses is available in the docket. 

B. Paperwork Reduction Act 

 This action does not impose any new information collection burden. EPA already 

requires recordkeeping and reporting for HCFCs, and this action does not amend those 

provisions. The Office of Management and Budget (OMB) has previously approved the 

information collection requirements contained in the existing regulations at 40 CFR part 82, 

subpart A under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2060-0498. The OMB control numbers for EPA's regulations in 

40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 
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The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking 

requirements under the Administrative Procedure Act or any other statute, unless the agency 

certifies that the rule will not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations, and small 

governmental jurisdictions. We have considered the economic impacts of this final rule on small 

entities. For purposes of assessing the impacts of this rule on small entities, a small entity is 

defined as: (1) a small business as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a 

city, county, town, school district or special district with a population of less than 50,000; and (3)

a small organization that is any not-for-profit enterprise which is independently owned and 

operated and is not dominant in its field. 

 This action may affect the following categories: 

- Industrial Gas Manufacturing entities (NAICS code 325120), including 

fluorinated hydrocarbon gases manufacturers and reclaimers; 

- Other Chemical and Allied Products Merchant Wholesalers (NAICS code 

422690), including chemical gases and compressed gases merchant 

wholesalers; 

- Air-Conditioning and Warm Air Heating Equipment and Commercial and 

Industrial Refrigeration Equipment Manufacturing entities (NAICS code 

333415), including air-conditioning equipment and commercial and industrial 

refrigeration equipment manufacturers; 

- Air-Conditioning Equipment and Supplies Merchant Wholesalers (NAICS 

code 423730) , including air-conditioning (condensing unit, compressors) 

merchant wholesalers; 
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- Electrical and Electronic Appliance, Television, and Radio Set Merchant 

Wholesalers (NAICS code 423620), including air-conditioning (room units) 

merchant wholesalers; and 

- Plumbing, Heating, and Air-Conditioning Contractors (NAICS code 238220), 

including central air-conditioning system and commercial refrigeration 

installation; HVAC contractors. 

 After considering the economic impacts of this final rule on small entities, I certify that 

this action will not have a significant economic impact on a substantial number of small entities. 

In determining whether a rule has a significant economic impact on a substantial number of 

small entities, the impact of concern is any significant adverse economic impact on small 

entities, since the primary purpose of the regulatory flexibility analyses is to identify and address 

regulatory alternatives “which minimize any significant economic impact of the rule on small 

entities.” 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant 

economic impact on a substantial number of small entities if the rule relieves regulatory burden, 

or otherwise has a positive economic effect on all of the small entities subject to the rule. 

This rule relieves a regulatory ban on production and consumption that would otherwise 

apply in the wake of the Court’s vacatur. Additionally, EPA is continuing to allocate production 

and consumption allowances using the same approach described in the 2009 Final Rule with 

adjustments to reflect (1) 2008 inter-pollutant transfers of baseline allowances deemed 

permanent by the Court, (2) inter-company, single-pollutant transfers of baseline allowances that 

occurred in 2010, (3) changes in company names that occurred after the 2009 Final Rule was 

signed and (4) an updated picture on the need for virgin HCFC-22 as assessed in the Adjustment 

Memo and sections IV.B.1-3 of this preamble. EPA is not modifying the recordkeeping or 

reporting provisions and thus is not increasing the burden to small businesses. EPA’s HCFC 
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Phaseout Benefits and Costs Memo, included in this docket, provides a summary of previous 

small business analyses, as well as the cost and benefit data used for the 2009 Final Rule. 

We have therefore concluded that today's final rule will relieve regulatory burden for all 

affected small entities. 

D. Unfunded Mandates Reform Act 

 This action contains no Federal mandates under the provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal 

governments or the private sector. UMRA does not apply to rules that are necessary for the 

ratification or implementation of international treaty obligations. This rule implements the 2010 

milestone for the phase-out of HCFCs under the Montreal Protocol. Therefore, this action is not 

subject to the requirements of sections 202 or 205 of UMRA. 

 This action is also not subject to the requirements of section 203 of UMRA because it 

contains no regulatory requirements that might significantly or uniquely affect small 

governments. This action apportions production and consumption allowances and establishes 

baselines for private entities, not small governments. 

E. Executive Order 13132: Federalism 

 This action does not have federalism implications. It will not have substantial direct 

effects on the States, on the relationship between the national government and the States, or on 

the distribution of power and responsibilities among the various levels of government, as 

specified in Executive Order 13132. This action is expected to primarily affect producers, 

importers, and exporters of HCFCs. Thus, the requirements of section 6 of the Executive Order 

do not apply. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments 

 This action does not have tribal implications, as specified in Executive Order 13175 (65 

FR 67249, November 9, 2000). This action does not significantly or uniquely affect the 
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communities of Indian tribal governments. It does not impose any enforceable duties on 

communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks 

 This action is not subject to EO 13045 (62 F.R. 19885, April 23, 1997) because it is not 

economically significant as defined in EO 12866. The agency nonetheless has reason to believe 

that the environmental health or safety risk addressed by this action may have a disproportionate 

effect on children. Depletion of stratospheric ozone results in greater transmission of the sun’s 

ultraviolet (UV) radiation to the earth’s surface. The following studies describe the effects of 

excessive exposure to UV radiation on children: (1) Westerdahl J, Olsson H, Ingvar C. “At what 

age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J 

Cancer 1994: 30A: 1647-54; (2) Elwood JM Japson J. “Melanoma and sun exposure: an 

overview of published studies,” Int J Cancer 1997; 73:198-203; (3) Armstrong BK, “Melanoma: 

childhood or lifelong sun exposure,” In: Grobb JJ, Stern RS Mackie RM, Weinstock WA, eds. 

“Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell 

Science, 1997: 63-6; (4) Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes 

Control, 1994: 5:564-72; (5) Heenan, PJ. “Does intermittent sun exposure cause basal cell 

carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60: 489-94; (6) 

Gallagher, RP, Hill, GB, Bajdik, CD, et. al. “Sunlight exposure, pigmentary factors, and risk of 

nonmelanocytic skin cancer I, Basal cell carcinoma,” Arch Dermatol 1995; 131: 157-63; (7) 

Armstrong, DK. “How sun exposure causes skin cancer: an epidemiological perspective,” 

Prevention of Skin Cancer. 2004. 89-116. 

 This action implements the U.S. commitment to reduce the total basket of HCFCs 

produced and imported to 25 percent of the respective baselines. While on an ODP-weighted 
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basis, this is not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of 

the most significant remaining actions the U.S. can take to complete the overall phaseout of ODS 

and further decrease impacts on children’s health from stratospheric ozone depletion. 

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

 This action is not a “significant energy action” as defined in Executive Order 13211 (66 

FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy. The rule issues allowances for the production and 

consumption of HCFCs. 

I. National Technology Transfer and Advancement Act 

 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

("NTTAA"), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures, and business practices) that are 

developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the agency decides not to use available and 

applicable voluntary consensus standards. This action does not involve technical standards. 

Therefore, EPA did not consider the use of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 
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environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States. 

 EPA has determined that this action will not have disproportionately high and adverse 

human health or environmental effects on minority or low-income populations because it 

increases the level of environmental protection for all affected populations without having any 

disproportionately high and adverse human health or environmental effects on any population, 

including any minority or low-income population. This action continues the implementation of 

the U.S. commitment to reduce the total basket of HCFCs produced and imported to a level that 

is more than 75 percent below the respective baselines. While on an ODP-weighted basis, this is 

not as large a step as previous actions, such as the 1996 Class I phaseout, it is one of the most 

significant remaining actions the U.S. can take to complete the overall phaseout of ODS and 

further lessen the adverse human health effects for the entire population. 

K. The Congressional Review Act 

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take 

effect, the agency promulgating the rule must submit a rule report, which includes a copy of the 

rule, to each House of the Congress and to the Comptroller General of the U.S. EPA will submit 

a report containing this rule and other required information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the U.S. prior to publication of the rule in the 

Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal 

Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be 

effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Administrative practice and procedure, Air pollution control, 

Chemicals, Exports, Hydrochlorofluorocarbons, Imports 
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DATED: ___________________________ 

___________________________________ 

Lisa P. JacksonBob Perciasepe, 

Acting Administrator. 

40 CFR part 82 is to be amended to read as follows:

PART 82-PROTECTION OF STRATOSPHERIC OZONE 

1. The authority citation for part 82 continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671– 7671q. 

2. Amend §82.16 by revising paragraph (a) to read as follows: 

§82.16 Phaseout schedule of class II controlled substances. 

(a) Calendar-year Allowances. (1) In each control period as indicated in the following tables, 

each person is granted the specified percentage of baseline production allowances and baseline 

consumption allowances for the specified class II controlled substances apportioned under 

§§82.17 and 82.19: 

Calendar-year HCFC Production Allowances 

Control 

Period 

Percent of 

HCFC141b 

Percent of 

HCFC-22 

Percent of 

HCFC142b 

Percent of 

HCFC-123

Percent of 

HCFC-124

Percent of 

HCFC225ca 

Percent of 

HCFC225cb 

2003 0 100 100 -- -- -- -- 

2004 0 100 100 -- -- -- -- 

2005 0 100 100 -- -- -- -- 

Protection of Stratospheric Ozone: Adjustments to the Allowance System for 

Controlling HCFC Production, Import, and Export (Page 812 of 856) 
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2006 0 100 100 -- -- -- -- 

2007 0 100 100 -- -- -- -- 

2008 0 100 100 -- -- -- -- 

2009 0 100 100 -- -- -- -- 

2010 0 41.9 0.47 125 125 125 125 

2011 0 32.0 4.9 125 125 125 125 

2012 0 17.7 4.9 125 125 125 125 

2013 0 30.1 4.9 125 125 125 125 

2014 0 26.1 4.9 125 125 125 125 

Calendar-year HCFC Consumption Allowances 

Control 

Period 

Percent of 

HCFC141b 

Percent of 

HCFC-22 

Percent of 

HCFC142b 

Percent of 

HCFC-123

Percent of 

HCFC-124

Percent of 

HCFC225ca 

Percent of 

HCFC225cb 

2003 0 100 100 -- -- -- -- 

2004 0 100 100 -- -- -- -- 

2005 0 100 100 -- -- -- -- 

2006 0 100 100 -- -- -- -- 

2007 0 100 100 -- -- -- -- 

2008 0 100 100 -- -- -- -- 

2009 0 100 100 -- -- -- -- 

2010 0 41.9 0.47 125 125 125 125 

2011 0 32.0 4.9 125 125 125 125 

2012 0 17.7 4.9 125 125 125 125 
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2013 0 18.0 4.9 125 125 125 125

2014 0 14.2 4.9 125 125 125 125

* * * * * 

3. Amend §82.16(a) by inserting the following paragraph: 

§82.16 Phaseout schedule of class II controlled substances. 

(a) * * * (2) Recoupment allowances. In the control period beginning January 1, 2013 and 

ending December 31, 2013, and again in the control period beginning January 1, 2014 and 

ending December 31, 2014, certain companies are granted HCFC consumption and production 

allowances in addition to the percentage of baseline listed in the table at paragraph (a)(1) of this 

section. The following companies will receive the amounts listed below in both 2013 and 2014: 

2,374,846 kg of HCFC-22 consumption allowances and 2,305,924 kg of HCFC-22 production 

allowances to Arkema; 1,170 kg of HCFC-142b consumption allowances to DuPont; 29,146 kg 

of HCFC-142b consumption allowances and 53,549 kg of HCFC-142b production allowances to 

Honeywell; 578,948 kg of HCFC-22 consumption allowances to Solvay Fluorides; and 144,900 

kg of HCFC-142b production allowances to Solvay Solexis. 

* * * * * 

4. Amend §82.23 by revising paragraphs (a)(ii)(A), (b), and (d) to read as follows: 

§82.23 Transfers of allowances of class II controlled substances. 

(a) * * * (ii) The Administrator will determine whether the records maintained by EPA indicate 

that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the 

date the transfer claim is processed. The transfer claim is the quantity (in kilograms) to be 

transferred plus 0.1 percent of that quantity. The Administrator will take into account any 

previous transfers, any production, and allowable imports and exports of class II controlled 
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substances reported by the transferor. Within three working days of receiving a complete transfer 

claim, the Administrator will take action to notify the transferor and transferee as follows:

 (A) The Administrator will issue a notice indicating that EPA does not object to the transfer if 

EPA's records show that the transferor has sufficient unexpended allowances to cover the 

transfer claim. In the case of transfers of production or consumption allowances, EPA will 

reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 

0.1 percent of that quantity. In the case of transfers of export production or Article 5 allowances, 

EPA will reduce the transferor's balance of unexpended allowances, respectively, by the quantity 

to be transferred plus 0.1 percent of that quantity. The transferor and the transferee may proceed 

with the transfer when EPA issues a no objection notice. However, if EPA ultimately finds that 

the transferor did not have sufficient unexpended allowances to cover the claim, the transferor 

and transferee, where applicable, will be held liable for any knowing violations of the regulations 

of this subpart that occur as a result of, or in conjunction with, the improper transfer. 

* * * * * 

 (b) Inter-pollutant transfers. (1) Effective January 1, 2003, a person (transferor) may convert 

consumption allowances, production allowances or Article 5 allowances for one class II 

controlled substance to the same type of allowance for another class II controlled substance listed 

in Appendix B of this subpart, following the procedures described in paragraph (b)(3) of this 

section. 

* * * * * 

(d) Permanent transfers. The procedures in paragraph (a) of this section apply to permanent 

inter-company transfers of baseline production allowances or baseline consumption allowances. 

A person receiving a permanent transfer of baseline production allowances or baseline 

consumption allowances (the transferee) for a specific class II controlled substance will be the 

person who has their baseline allowances adjusted in accordance with phaseout schedules in this 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** 

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subpart. No person may conduct permanent inter-pollutant transfers of baseline production 

allowances or baseline consumption allowances. 

* * * * *