Tuesday, 

December 15, 2009 

Part II 

Environmental 

Protection Agency 

40 CFR Part 82 

Protection of Stratospheric Ozone: 

Adjustments to the Allowance System for 

Controlling HCFC Production, Import, 

and Export; Final Rule 


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66412 Federal Register / Vol. 74, No. 239 / Tuesday, December 15, 2009 / Rules and Regulations 

1The ozone depletion potential (ODP) is a 

number that refers to the amount of ozone depletion 

caused by a substance. It is the ratio of the impact 

on ozone of a chemical compared to the impact of 

a similar mass of CFC–11. Thus, the ODP of CFC– 

11 is defined to be 1.0. Other CFCs and HCFCs have 

ODPs ranging from 0.01 to 1.0. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2008–0496; FRL–9091–7] 

RIN 2060–A076 

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). 

This action allocates production and 

consumption allowances for HCFC–22 

and HCFC–142b, as well as other HCFCs 

for which allowances were not allocated 

previously, for the control periods 

2010–2014. This action also establishes 

baselines for HCFCs for which EPA had 

not established baselines previously. 

The HCFC allowance system is part of 

EPA’s Clean Air Act program to phase 

out ozone-depleting substances to 

protect the stratospheric ozone layer. 

Protection of the stratospheric ozone 

layer helps reduce rates of skin cancer 

and cataracts, as well as other health 

and ecological effects. The U.S. is 

obligated under the Montreal Protocol 

on Substances that Deplete the Ozone 

Layer (Montreal Protocol) to limit HCFC 

consumption and production to a 

specific level and, using stepwise 

reductions, to decrease the specific level 

culminating in a complete HCFC 

phaseout in 2030. The next major 

milestone, to occur on January 1, 2010, 

is a 75 percent reduction from the 

aggregate U.S. HCFC baseline for 

production and consumption. The 

allowances allocated in this action 

ensure compliance with the 

international stepwise reduction, 

consistent with the 1990 Clean Air Act 

Amendments. In addition, this action 

amends the regulatory provisions 

concerning allowances for HCFC 

production for developing countries’ 

basic domestic needs to be consistent 

with the September 2007 adjustments to 

the Montreal Protocol. Also, this action 

provides the Agency’s interpretation of 

a self-effectuating ban on introduction 

into interstate commerce and use of 

HCFCs contained in section 605(a) of 

the Clean Air Act and amends existing 

regulatory provisions to facilitate 

implementation of the statutory 

requirements. 

DATES: This rule is effective January 1, 

2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0496. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, 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. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Arling by telephone at (202) 

343–9055, or by e-mail at 

arling.jeremy@epa.gov or by mail at U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

For technical information, contact Staci 

Gatica at (202) 343–9469, or by e-mail 

at gatica.staci@epa.gov or by mail at 

U.S. Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

You may also visit the Ozone Depletion 

Web site 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: Under the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Montreal 

Protocol), as amended, the U.S. and 

other industrialized countries that are 

Parties to the Protocol have agreed to 

limit production and consumption of 

hydrochlorofluorocarbons (HCFCs), and 

to phase out production and 

consumption in a stepwise fashion over 

time, culminating in a general phaseout 

by 2020 while permitting a small 

amount of HCFC production and 

consumption to continue solely for 

servicing existing appliances until 2030. 

Title VI of the Clean Air Act 

Amendments of 1990 (CAAA of 1990) 

also mandates restrictions on HCFCs, 

culminating in a complete production 

and consumption phaseout in 2030. For 

purposes of both the Montreal Protocol 

and the Clean Air Act, ‘‘consumption’’ 

is defined as production plus imports 

minus exports. Sections 605 and 606 of 

the Clean Air Act authorize EPA to 

promulgate regulations to manage the 

consumption and production of HCFCs 

until the terminal phaseout. In 1993, 

EPA established a chemical-bychemical, ‘‘worst-first,’’ approach to 

implement the Montreal Protocol’s 

graduated phaseout in overall HCFC 

levels (58 FR 65018). Key concepts in 

the ‘‘worst-first’’ approach include 

‘‘distinguishing among HCFCs based on 

their ODP [ozone depletion potential] 

and phasing out use in new equipment 

prior to use for servicing existing 

equipment’’ (58 FR 65026).1 The 

consumption cap became effective in 

1996, and HCFC consumption in the 

U.S. remained about 15 percent below 

the cap for the first two years. In 1998 

and 1999, consumption rose to levels 

that approached the cap. On January 21, 

2003, EPA established an allowance 

system for HCFCs (68 FR 2820), noting 

at that time that it would again pursue 

a notice-and-comment rulemaking to 

implement a 2010 stepwise reduction. 

EPA promulgated minor amendments to 

these regulations on June 17, 2004 (69 

FR 34024), and July 20, 2006 (71 FR 

41163). 

This action implements the next step 

in the chemical-by-chemical phaseout 

the United States uses to meet its 

international obligations. Specifically, 

EPA is granting specified percentages of 

the consumption and production 

baselines for HCFC–141b, HCFC–22, 

and HCFC–142b for the control periods 

2010–2014. This action also establishes 

company-by-company consumption and 

production baselines for other HCFCs 

and grants specified percentages of 

those baselines for the control periods 

2010–2014. This action also amends the 

provisions for HCFC production 

allowances to meet the basic domestic 

needs of developing countries. In 

addition, EPA is providing its 

interpretation of a self-effectuating ban 

on introduction into interstate 

commerce and use of HCFCs, which is 

contained in section 605(a) of the Clean 

Air Act. 


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Section 553(d) of the Administrative 

Procedure Act (APA), 5 U.S.C. Chapter 

5, generally provides that rules may not 

take effect earlier than 30 days after they 

are published in the Federal Register. 

EPA is issuing this final rule under 

section 307(d)(1) of the Clean Air Act, 

which states: ‘‘The provisions of section 

553 through 557 * * * of Title 5 shall 

not, except as expressly provided in this 

section, apply to actions to which this 

subsection applies.’’ Thus, section 

553(d) of the APA does not apply to this 

rule. EPA is nevertheless acting 

consistently with the policies 

underlying APA section 553(d) in 

making this rule effective on January 1, 

2010. APA section 553(d) provides 

exceptions for any action that grants or 

recognizes an exemption or relieves a 

restriction or as otherwise provided by 

the agency for good cause found and 

published within the rule. This final 

rule relieves a restriction by authorizing 

the production and import of certain 

HCFCs in 2010 that would otherwise be 

prohibited under the existing 

regulations. 

Abbreviations and Acronyms Used in 

This Document 

AHRI—Air-Conditioning, Heating, and 

Refrigeration Institute 

BDN—Basic Domestic Need 

CAA—Clean Air Act 

CAAA—Clean Air Act Amendments of 1990 

CFC—Chlorofluorocarbon 

EPA—Environmental Protection Agency 

FDA—Food and Drug Administration 

HCFC—Hydrochlorofluorocarbon 

HFC—Hydrofluorocarbon 

Montreal Protocol—Montreal Protocol on 

Substances that Deplete the Ozone Layer 

MOP—Meeting of the Parties 

MT—Metric Ton 

NPRM—Notice of Proposed Rulemaking 

ODP—Ozone Depletion Potential 

ODS—Ozone-Depleting Substance 

OEM—Original Equipment Manufacturer 

Party—States and regional economic 

integration organizations that have 

consented to be bound by the Montreal 

Protocol on Substances that Deplete the 

Ozone Layer 

SNAP—Significant New Alternatives Policy 

TXV—Thermostatic Expansion Valve 

UNEP—United Nations Environment 

Programme 

Table of Contents 

I. Regulated Entities 

II. 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? 

III. Summary of this Final Action 

IV. Allocation of Allowances for the 2010– 

2014 Control Periods 

A. Baselines for HCFC–22 and HCFC–142b 

Allowances 

1. Adjusting the Baseline for Intercompany and Inter-pollutant Transfers 

2. Meeting the Needs of Certified 

Reclaimers 

B. Factors for Considering Allocation 

Amounts for HCFC–22 and HCFC–142b 

1. The Importance of HCFC–22 Servicing 

Needs for Existing Equipment 

2. Meeting Servicing Needs With Virgin 

and Reclaimed Material 

3. Annual Reduction in Allocated Amounts 

C. Allocations of HCFC–22 and HCFC– 

142b 

1. HCFC–22 Allowances for 2010–2014 

2. HCFC–142b Allowances for 2010–2014 

3. How the Aggregate for HCFC–22 and 

HCFC–142b Translates Entity-by-Entity 

D. HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb Allowances 

1. Baselines for HCFC–123, HCFC–124, 

HCFC–225ca, and HCFC–225cb 

2. Allocation Levels for HCFC–123, HCFC– 

124, HCFC–225ca, and HCFC–225cb 

E. Other HCFCs 

V. Article 5 Allowances 

VI. Accelerated Use Restrictions Under 

Section 605 

A. Definition of ‘‘Introduction Into 

Interstate Commerce’’ 

B. Interpretation of the Term ‘‘Use’’ 

C. Interpretation of the Phrase ‘‘Appliances 

Manufactured Prior To’’ 

D. Exceptions to the Accelerated Use 

Restrictions 

1. Thermostatic Expansion Valves 

2. Medical Equipment 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. Regulated Entities 

This rule will affect the following 

categories: 

Category NAICS code SIC code Examples of regulated entities 

Industrial Gas Manufacturing ....................................... 325120 2869 Fluorinated hydrocarbon gases manufacturers and reclaimers. 

Other Chemical and Allied Products Merchant Wholesalers.424690 5169 Chemical gases and compressed gases merchant 

wholesalers. 

Air-Conditioning and Warm Air Heating Equipment 

and Commercial and Industrial Refrigeration Equipment Manufacturing.

333415 3585 Air-Conditioning Equipment and Commercial and Industrial Refrigeration Equipment manufacturers. 

Air-Conditioning Equipment and Supplies Merchant 

Wholesalers.

423730 5075 Air-conditioning (condensing unit, compressors) merchant wholesalers. 

Electrical and Electronic Appliance, Television, and 

Radio Set Merchant Wholesalers.

423620 5064 Air-conditioning (room units) merchant wholesalers. 

Plumbing, Heating, and Air-Conditioning Contractors 238220 1711, 7623 Central air-conditioning system and commercial refrigeration installation; HVAC contractors. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware potentially could be regulated by 

this action. Other types of entities not 

listed in this table could also be 

affected. To determine whether your 

facility, company, business 

organization, or other entity is regulated 

by this action, you should carefully 

examine these regulations. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the FOR FURTHER

INFORMATION CONTACT section. 

II. Background 

A. How Does the Montreal Protocol 

Phase Out HCFCs? 

The Montreal Protocol on Substances 

that Deplete the Ozone Layer is the 

international agreement aimed at 

reducing and eventually eliminating the 

production and consumption of 


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2Class 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. 

3Under 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 become binding for all Parties on May 14, 

2008. 

4Paragraphs 4–6 of adjusted Article 2F read as 

follows: 

4. Each Party shall ensure that for the twelvemonth period commencing on 1 January 2010, and 

in each twelve-month period thereafter, its 

calculated level of consumption of the controlled 

substances in Group I of Annex C does not exceed, 

annually, twenty-five percent of the sum referred to 

in paragraph 1 of this Article. Each Party producing 

one or more of these substances shall, for the same 

periods, ensure that its calculated level of 

production of the controlled substances in Group I 

of Annex C does not exceed, annually, twenty-five 

percent of the calculated level referred to in 

paragraph 2 of this Article. However, in order to 

satisfy the basic domestic needs of the Parties 

operating under paragraph 1 of Article 5, its 

calculated level of production may exceed that limit 

by up to ten percent of its calculated level of 

production of the controlled substances in Group I 

of Annex C as referred to in paragraph 2. 

5. Each Party shall ensure that for the twelvemonth period commencing on 1 January 2015, and 

in each twelve-month period thereafter, its 

calculated level of consumption of the controlled 

substances in Group I of Annex C does not exceed, 

annually, ten percent of the sum referred to in 

paragraph 1 of this Article. Each Party producing 

one or more of these substances shall, for the same 

periods, ensure that its calculated level of 

production of the controlled substances in Group I 

of Annex C does not exceed, annually, ten percent 

of the calculated level referred to in paragraph 2 of 

this Article. However, in order to satisfy the basic 

domestic needs of the Parties operating under 

paragraph 1 of Article 5, its calculated level of 

production may exceed that limit by up to ten 

percent of its calculated level of production of the 

controlled substances in Group I of Annex C as 

referred to in paragraph 2. 

6. Each Party shall ensure that for the twelvemonth period commencing on 1 January 2020, and 

in each twelve-month period thereafter, its 

calculated level of consumption of the controlled 

substances in Group I of Annex C does not exceed 

zero. Each Party producing one or more of these 

substances shall, for the same periods, ensure that 

its calculated level of production of the controlled 

substances in Group I of Annex C does not exceed 

zero. However: 

i. Each Party may exceed that limit on 

consumption by up to zero point five percent of the 

sum referred to in paragraph 1 of this Article in any 

such twelve-month period ending before 1 January 

2030, provided that such consumption shall be 

restricted to the servicing of refrigeration and air 

conditioning equipment existing on 1 January 2020; 

stratospheric ozone-depleting 

substances. 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 of 

1990), which included Title VI on 

Stratospheric Ozone Protection, codified 

as 42 U.S.C. Chapter 85, Subchapter VI, 

to ensure that the United States could 

satisfy its obligations under the 

Montreal Protocol. Title VI includes 

restrictions on production, 

consumption, and use of ozonedepleting substances 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. Both the 

Montreal Protocol and the Clean Air Act 

define consumption as production plus 

imports minus exports. 

In 1990, as part of the London 

Amendment to the Montreal Protocol, 

the Parties identified HCFCs as 

‘‘transitional substances’’ to serve as 

temporary, lower-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 2’’ (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 (Article 2) Parties, a 

schedule to which the United States 

adheres. The consumption cap for each 

Article 2 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, effective January 

1, 1996. This became the U.S. 

consumption baseline for HCFCs. 

The 1992 Copenhagen Amendment 

created a schedule with graduated 

reductions and the eventual phaseout of 

HCFC consumption (Copenhagen, 23–25 

November, 1992, Decision IV/4). Prior to 

the 2007 adjustment, the schedule 

called for a 35 percent reduction of the 

consumption cap in 2004, followed by 

a 65 percent reduction in 2010, a 90 

percent reduction in 2015, a 99.5 

percent reduction in 2020 (restricting 

the remaining 0.5 percent of baseline to 

the servicing of existing refrigeration 

and air-conditioning equipment), with a 

total phaseout in 2030. 

The Copenhagen Amendment did not 

cap HCFC production. In 1999, the 

Parties created a cap on production for 

Article 2 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 

CFC consumption. Based on this 

formula, the HCFC production cap for 

the U.S. was 15,537 ODP-weighted 

metric tons, 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, 2008.3

As a result of the 2007 Montreal 

Adjustment (reflected in Decision XIX/ 

6), the United States and other 

industrialized countries are obligated to 

reduce HCFC production and 

consumption 75 percent below the 

established baseline by 2010, rather 

than 65 percent as was the previous 

requirement. The other milestones 

remain the same: 90 percent below the 

baseline by 2015, and 99.5 percent 

below the baseline by 2020—allowing, 

during 2020 to 2030, production and 

consumption at only 0.5 percent of 

baseline solely for servicing existing airconditioning and refrigeration 

equipment. The adjustment also 

resulted in a phaseout schedule for 

HCFC production that parallels the 

consumption phaseout schedule. All 

production and consumption for Article 

2 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 2009–2010 production and 

consumption, respectively; (2) to freeze 

HCFC production and consumption at 

those baselines in 2013; and (3) to add 

stepwise reductions of 10 percent below 

baselines by 2015, 35 percent by 2020, 

67.5 percent by 2025, and 97.5 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 airconditioning and refrigeration 

equipment. All production and 

consumption for Article 5 Parties is 

phased out by 2040. 

In addition, Decision XIX/6 adjusted 

Article 2F to allow industrialized 

countries to produce ‘‘up to 10 percent 

of baseline levels’’ for export to Article 

5 countries ‘‘in order to satisfy basic 

domestic needs’’ until 2020.4 Paragraph 


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ii. Each Party may exceed that limit on 

production by up to zero point five percent of the 

average referred to in paragraph 2 of this Article in 

any such twelve-month period ending before 1 

January 2030, provided that such production shall 

be restricted to the servicing of refrigeration and air 

conditioning equipment existing on 1 January 2020. 

14 of Decision XIX/6 notes that 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 industrialized and 

developing countries. The term 

‘‘servicing tail’’ refers to an amount of 

HCFCs used to service existing 

equipment, such as certain types of airconditioning and refrigeration 

appliances. 

B. How Does the Clean Air Act Phase 

Out HCFCs? 

The United States has chosen to 

implement the Montreal Protocol 

phaseout schedule on a chemical-bychemical 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 that 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 focusing on certain chemicals 

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). EPA explained that 

its action modified the schedule 

contained in paragraphs (a) and (b) of 

section 605 (58 FR 65025). Paragraph (a) 

addresses use and introduction into 

interstate commerce, while paragraph 

(b) addresses production. 

On January 21, 2003 (68 FR 2820), 

EPA promulgated regulations 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 that rule EPA established chemicalspecific consumption and production 

baselines for HCFC–141b, HCFC–22, 

and HCFC–142b. Section 601(2) states 

that EPA may select ‘‘a representative 

calendar year’’ to serve as the baseline 

for HCFCs. In the 2003 allocation rule, 

EPA concluded that because the entities 

eligible for allowances had differing 

production and import histories, no one 

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 an exception allowing 

new entrants provided that they began 

importing after the end of 1997 but 

before April 5, 1999, the date the 

advanced notice of proposed 

rulemaking (ANPRM) was published. 

EPA believed that such small businesses 

might not have been aware of the 

impending rulemaking that would affect 

their ability to continue in the HCFC 

market. 

The 2003 allocation rule apportioned 

production and consumption baselines 

to each company in amounts equal to 

the amounts in 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 0 percent of 

that substance’s baseline for production 

and consumption in the table at § 82.16. 

EPA did, however, create a petition 

process to allow applicants to request 

very small amounts of HCFC–141b 

beyond the phaseout. The rule also 

granted 100 percent of the baselines for 

production and consumption of HCFC– 

22 and HCFC–142b. 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 this 

rulemaking, EPA had not allocated any 

HCFC allowances for year 2010 or 

beyond. The regulations at 40 CFR 

82.15(a) and (b) only permitted the 

production and import of HCFC–22 and 

HCFC–142b for the years 2003–2009. 

Through this rulemaking, EPA is now 

allocating calendar-year allowances for 

HCFC–142b and HCFC–22 to allow 

production and import during the 2010– 

2014 control periods. Absent the grant 

of calendar-year allowances, § 82.15 

would prohibit their production and 

import after December 31, 2009. This 

final rule allows for continued 

production and consumption, at 

specified amounts, of HCFC–142b, 

HCFC–22, and other HCFCs not 

previously granted allocations, for the 

2010–2014 control periods. 

In the United States, an allowance is 

the unit of measure that controls 

production and consumption of ozonedepleting substances. An allowance 

represents the privilege granted to a 

company to produce or import one 

kilogram (not ODP-weighted) of the 

specific substance. 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. EPA has 

allocated two types of calendar-year 

allowances—production allowances and 

consumption allowances—for HCFC–22 

and HCFC–142b. ‘‘Production 

allowance’’ and ‘‘consumption 

allowance’’ are defined at 40 CFR 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 

obtain a refund of those consumption 

allowances upon submittal of proper 

documentation to 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 trade allowances 

of one type of HCFC for allowances of 

another type of HCFC, with transactions 

weighted according to the ozone 

depletion potential (ODP) of the 

chemicals involved. Pursuant to section 

607 of the Clean Air Act, EPA applies 

an offset to each HCFC trade 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). 

Because EPA has allocated the same 

amount of allowances every year from 

2004 to 2009—with minor changes 

reflecting permanent trades of baseline 

allowances—and because EPA tracks 

the production and consumption of all 

HCFCs (including those for which 

baselines are not allocated), the Agency 

can ascertain that the U.S. will remain 

comfortably below the aggregate HCFC 

cap through 2009. The 2003 allocation 

rule announced that EPA would allocate 

allowances for 2010–2014 in a 


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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 exact 

amount 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 stated that it would 

likely achieve the 2010 reduction step 

by applying a percentage reduction to 

the HCFC–22 and HCFC–142b baseline 

allowances. EPA has monitored the 

market to estimate servicing needs and 

market adjustments in the use of HCFCs, 

including HCFCs for which EPA did not 

establish baselines in the 2003 

allocation rule. 

C. What Sections of the Clean Air Act 

Apply to This Rulemaking? 

Several sections of the Clean Air Act 

apply to this rulemaking. Section 605 of 

the Clean Air Act phases out production 

and consumption and restricts the use 

of HCFCs in accordance with the 

schedule set forth in that section. 

Section 606 provides for acceleration of 

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 has previously 

accelerated the section 605 schedule 

through a rulemaking published 

December 10, 1993 (58 FR 65018). 

Through this action, EPA is further 

accelerating the HCFC production and 

consumption phaseouts in section 

605(b)–(c). 

Section 606 provides authority for 

EPA 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 this instance, all three 

criteria have been met with respect to 

the schedule for phasing out production 

and consumption of HCFC–22 and 

HCFC–142b. 

The first criterion allows the 

Administrator, based on an assessment 

of credible current scientific 

information, to determine that a more 

stringent schedule may be necessary to 

protect human health. The recent 

scientific findings by the Montreal 

Protocol’s Science Assessment Panel, 

Science Assessment of Ozone Depletion: 

2006, available in the docket for this 

rulemaking, were initially presented to 

the Parties to the Montreal Protocol in 

October 2006 at the 18th Meeting of the 

Parties in New Delhi, India. The 

Assessment was published in March 

2007, and hard copies were available to 

the Parties in advance of the 26th OpenEnded Working Group Meeting held in 

June 2007 in Nairobi, Kenya. The 

assessment report shows that 

notwithstanding the evidence of a 

healing of the ozone layer, there 

continue to be human health and 

environmental effects associated with 

ozone depletion and that recovery 

continues to rely on a successful total 

global phaseout of ODS. Specifically, 

the report concludes that the date when 

equivalent effective stratospheric 

chlorine (EESC) relevant to mid-latitude 

ozone depletion returns to pre-1980 

levels is 2049, which is five years later 

than projected in the previous Scientific 

Assessment. The later return is 

primarily due to higher estimated future 

emissions of CFC–11, CFC–12, and 

HCFC–22. The report includes scenarios 

where additional actions taken by the 

Parties would result in a faster recovery. 

While these specific scenarios 

(including complete phaseout by the 

end of that calendar year) were not all 

necessarily deemed to be practical, they 

demonstrated to the Parties what could 

be achieved with additional actions. 

The percentage reduction in EESC 

attributed to HCFCs is larger than 

previously reported and the scenarios 

showed that reducing HCFCs could 

have a greater effect than reducing any 

of the other compounds or groups of 

compounds given their current 

production levels. These findings 

contributed in part to the willingness of 

many Parties, including the United 

States, to consider the adjustments to 

the Montreal Protocol’s HCFC phaseout 

schedule that were successfully 

negotiated in September 2007. EPA 

published a notice of data availability 

(72 FR 35230) concerning the potential 

changes in HCFC consumption from 

proposed adjustments to the Montreal 

Protocol submitted by the United States 

for consideration at the 19th Meeting of 

the Parties held in Montreal September 

2007. The data made available through 

that notice were specific to the United 

States’ proposal but had general 

applicability to the other five proposals 

submitted by various Parties to the 

Protocol and to what was ultimately 

agreed to by the Parties at the 19th 

Meeting. EPA believes the recent 

scientific findings on stratospheric 

ozone depletion, together with the wellestablished relationship between ozone 

depletion and increased risk of human 

health effects, support a determination 

that a more stringent HCFC phaseout 

schedule may be necessary to protect 

against such effects. 

The second criterion allows the 

Administrator to determine that a more 

stringent schedule is practicable based 

on the availability of substitutes for 

ODS, taking into account technological 

achievability, safety, and other relevant 

factors. Since the establishment of the 

domestic chemical-by-chemical 

phaseout in the United States, advances 

by industry have resulted in the 

availability of substitutes for a large 

variety of end-use applications. Under 

section 612 of the CAA, EPA’s 

Significant New Alternatives Policy 

(SNAP) program evaluates alternatives 

for ODS and lists as acceptable those 

that do not pose a greater risk to human 

health than other substitutes that are 

currently or potentially available. 

Alternatives include chemical 

replacements, product substitutes, and 

alternative technologies. The SNAP 

program has reviewed approximately 

400 alternatives to date. EPA makes 

information available concerning 

potential alternatives for various enduse applications. Suitable alternatives— 

in many cases, multiple suitable 

alternatives—are available for all enduse applications for the HCFCs 

considered in this action. However, as 

discussed later in this preamble, EPA 

has learned of three niche end use 

applications where substitutes exist but 

other factors may be affecting the timing 

of their implementation. Because 

sufficient quantities of HCFC have 

already been produced for these uses, 

EPA took this information into account 

in evaluating the schedule for phasing 

out use under section 605(a) rather than 

the schedule for phasing out production 

under section 605(b)–(c). The use 

phaseout is discussed below. 

The SNAP program has reviewed 

substitutes to ODS for the following 

industrial sectors: 

• Refrigeration & Air Conditioning 

• Foam Blowing Agents 


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• Cleaning Solvents 

• Fire Suppression and Explosion 

Protection 

• Aerosols 

• Sterilants 

• Tobacco Expansion 

• Adhesives, Coatings & Inks 

HCFCs have been used in all of these 

industrial sectors except for tobacco 

expansion. Within the air conditioning 

and refrigeration industrial sector, end 

uses where HCFCs have been used 

include chillers, industrial process 

refrigeration systems, industrial process 

air conditioning, bus and passenger 

train AC, ice machines, very low 

temperature refrigeration, ice skating 

rinks, cold storage warehouses, 

refrigerated transport, retail food 

refrigeration, household appliances, and 

residential and light commercial air 

conditioning and heat pumps. The 

SNAP program lists substitutes for each 

of these end uses. 

A wide range of alternative 

refrigerants found acceptable under 

EPA’s SNAP program are available in 

the AC and refrigeration sector. 

Hydrofluorocarbons (HFCs) and HFCbased alternatives, including R–134a, R– 

410A (composed of HFC–32/HFC–125), 

R–407C (composed of HFC–32/HFC– 

125/HFC–134a), R–404A (composed of 

HFC–125/HFC–143a/HFC–134a), and 

R–507A (composed of HFC–125/HFC– 

143a), are currently used in a variety of 

refrigeration and AC equipment. In 

addition, other refrigerants such as CO2, 

ammonia, and hydrocarbons are 

available as alternatives. The pace of 

transition to equipment using these 

alternatives has varied by industry and 

type of equipment. Appendix A to the 

Servicing Tail report found in the 

docket to this rule presents EPA’s 

estimates of the market penetration of 

alternatives for each end use within this 

sector. 

Some mobile AC equipment has been 

using alternatives since the early 1990s, 

with some buses and trains using R– 

134a, and some heavy rail cars using R– 

407C. Stationary AC equipment using 

R–410A has been commercially 

available since 1996, and is expected to 

dominate the U.S. residential market in 

the near future. The projections in the 

Servicing Tail report are based on 

information regarding the transition to 

alternatives. New sales of residential AC 

systems are modeled such that only 10 

percent of the market adopts 

alternatives by the end of 2008 and the 

remainder of the market for new 

equipment transitions completely by the 

end of 2009. Consumers naturally prefer 

equipment, services, and refrigerant that 

costs less. Previously, R–22 has been 

cheaper than alternatives. However, the 

economics are changing and R–410A 

pricing is beginning to match that of R– 

22. Most residential AC equipment 

purchasers now are buying equipment 

using R–410A. 

Retail food refrigeration end-uses 

have been transitioning to alternatives 

more quickly than AC end-uses. EPA 

estimates that half of the refrigerant 

used in existing stores is R–22 but only 

5% of new refrigeration systems 

installed in 2009 were charged with R– 

22. Advanced refrigeration technologies 

(e.g., distributed systems and secondary 

loop systems) represent an estimated 

40% of new equipment sales and such 

systems installed in the last ten years 

have been charged with HFC 

refrigerants. 

As mentioned in the Servicing Tail 

report, several AC and refrigeration 

equipment manufacturers have 

indicated that they have discontinued 

production of new equipment that uses 

R–22. These actions are consistent with 

the actions taken in the mid-1990s, 

when the refrigeration and AC 

industries phased out CFC refrigerants 

from new production chillers, 

refrigerators, motor vehicle air 

conditioners, and other products two or 

more years before the 1996 CFC 

consumption phaseout. 

Alternatives are available in the other 

sectors as well. For example, numerous 

alternatives exist for HCFC–22 and 

HCFC–142b for foam blowing agents, 

including water, Ecomate®, saturated 

light hydrocarbons (e.g., cyclopentane), 

CO2, HFO–1234ze, and a number of 

HFCs or HFC blends. In place of HCFCs 

as propellants, most aerosol cans use 

saturate light hydrocarbons (e.g., 

propane, n-butane, isobutane) or 

dimethyl ether where flammability is 

not a major concern or HFCs or 

compressed gases (e.g., CO2, nitrogen) 

where flammability is a concern. (A 

complete list of substitutes is available 

at http://www.epa.gov/ozone/snap/lists/ 

index.html.) EPA believes that given the 

availability of substitutes, a more 

stringent phaseout schedule for HCFC– 

22 and HCFC–142b is now practicable. 

The last criterion is that the Montreal 

Protocol be modified to include a 

schedule to control or reduce 

production, consumption, or use of any 

substance more rapidly than section 605 

would dictate. The United States 

submitted a proposal to adjust the 

Montreal Protocol in March 2007 to 

accelerate the phaseout of HCFCs. This 

was one of six proposals considered by 

the Parties at their 19th Meeting. Due to 

the efforts of the United States and 

others, the Parties agreed to adjustments 

that result in a more aggressive phaseout 

schedule for both developed and 

developing countries. Therefore, this 

third criterion has been met. Through 

this action, EPA is incorporating in its 

regulations a schedule that reflects the 

2007 Montreal Adjustment. While 

section 606 is sufficient authority for 

this acceleration of the section 605 

phaseout schedule, section 614(b) of the 

Clean Air Act provides that in the case 

of a conflict between the Act and the 

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 

Protocol. To meet the 2010 stepdown 

requirement, EPA is allocating HCFC 

allowances for the years 2010 through 

2014 at a level that will ensure the 

aggregate HCFC production and 

consumption will not exceed 25 percent 

of the U.S. baselines. 

In addition to implementing the 2007 

Montreal Adjustment, this rule also 

addresses provisions in section 605 of 

the Clean Air Act that relate to use and 

introduction into interstate commerce of 

class II substances. This action 

completes EPA’s implementation (begun 

in 1993) of the section 605 provisions 

on use of class II substances. EPA is also 

promulgating regulatory language to 

reflect the section 605 provisions on 

introduction into interstate commerce of 

class II substances. EPA previously 

addressed the provisions concerning use 

of class II substances in a 1993 

rulemaking that accelerated the 

phaseout schedule for HCFC–22 and 

HCFC–142b (58 FR 15014, 58 FR 

65018). The intent of the 1993 

rulemaking was to accelerate not only 

the production and consumption 

schedule, but also the use restrictions 

for those two substances under the 

authority of section 606(a)(1) and (2). In 

the March 18, 1993, notice of proposed 

rulemaking, EPA stated that the effect of 

this acceleration was ‘‘to prohibit the 

use of the chemicals (virgin material 

only) for any use except as a feedstock 

or as a refrigerant in existing equipment 

as of January 1, 2010’’ (58 FR 15028). 

EPA noted in the December 10, 1993, 

final rulemaking that ‘‘HCFC restrictions 

and the approach included in this final 

rule have not changed from those 

proposed by the Agency in March’’ (58 

FR 65028). The regulatory provisions 

included with that notice, however, did 

not control use directly, but instead 

banned production and import for most 

uses. This action completes the 

prohibitions contemplated in the 1993 

rule by adding to the regulatory text the 

restriction on use as well as the 

corresponding prohibitions on 

introduction into interstate commerce. 


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5EPA did not propose, and is not implementing 

in this action, any changes to the HCFC–141b 

petition process for the 2010–2014 control periods. 

EPA is providing exceptions to this ban 

for medical equipment and thermal 

expansion valves, for which the 

practicability of substitutes remains an 

issue. EPA is also clarifying its 

interpretation of the section 605(a) 

restrictions on use and introduction into 

interstate commerce. 

III. Summary of This Final Action 

In this action, EPA is amending the 

existing regulations to implement the 

next major milestone in the HCFC 

phaseout. As a Party to the Montreal 

Protocol, and having ratified the 

Montreal Protocol and all of its 

amendments, the United States is 

required to decrease its amount of HCFC 

consumption and production to 25 

percent of the U.S. baseline by 2010. 

Our domestic chemical-by-chemical 

approach results in differing schedules 

for the phaseout of individual HCFCs. 

EPA believes that the chemical-bychemical allocation of HCFC allowances 

ensures that the United States continues 

to maintain an overall HCFC production 

and consumption level that is below the 

2010 cap specified by the September 

2007 Montreal Adjustment, while at the 

same time ensuring that servicing needs 

consistent with section 605(a) of the 

Clean Air Act and EPA’s implementing 

regulations continue to be met. Thus, 

the aggregate allowances for all U.S. 

HCFC consumption in the years 2010– 

2014 do not exceed 3,810 ODP-weighted 

metric tons (25 percent of the aggregate 

U.S. consumption baseline) annually 

and the aggregate allowances for all U.S. 

HCFC production in the years 2010– 

2014 do not exceed 3,884.25 ODPweighted metric tons (25 percent of the 

aggregate U.S. production baseline) 

annually. 

To meet the 2010 cap for the 2010– 

2014 control periods, EPA is 

maintaining its past practice of 

apportioning company-specific 

production and consumption baselines 

for individual HCFCs, and allocating a 

certain percent of that baseline in an 

amount necessary to meet demand. For 

HCFC–22, that percentage decreases on 

an annual basis to reflect a projected 

decrease in demand as well as to 

promote recycling and reclamation, 

which in turn should prevent shortages 

that might otherwise occur upon the 

stepdown in 2015. This approach was 

discussed briefly in the proposal (73 FR 

78691) and was supported in comments 

to the Agency. For HCFC–141b, HCFC– 

22, and HCFC–142b, EPA is adjusting 

the previously established companyspecific baselines to reflect (1) 

permanent inter-company transfers of 

baseline allowances for a particular 

HCFC and (2) changes to the names of 

entities identified in the tables at § 82.17 

and § 82.19. These adjustments do not 

reflect inter-pollutant transfers 

occurring on an annual basis. For 2010– 

2014, given the previous phaseout of 

HCFC–141b, EPA will continue to 

allocate zero percent of the HCFC–141b 

baseline, and allow only limited 

amounts of production via the existing 

EPA petition process.5 EPA is allocating 

an annually declining percentage of 

baseline for HCFC–22 ranging from 41.9 

percent in 2010 to 26.1 percent in 2014 

and is allocating 0.47 percent of 

baseline for HCFC–142b in all years 

2010–2014 to meet the U.S. obligations 

under the Montreal Protocol and to 

reflect the use restrictions under section 

605(a) of the CAA while providing for 

servicing needs consistent with those 

restrictions. 

EPA is also implementing production 

and consumption controls for HCFC– 

123, HCFC–124, HCFC–225ca, and 

HCFC–225cb, which did not have 

baselines prior to this rulemaking. EPA 

is apportioning company-specific 

baselines for these HCFCs based on 

production and import data available to 

the Agency. For control periods 2010– 

2014, EPA is granting 125 percent of 

baseline for these HCFCs. 

The allocations for HCFC–22, HCFC– 

142b, HCFC–123, HCFC–124, HCFC– 

225ca, and HCFC–225cb reflect EPA’s 

analysis of market data for these 

chemicals. The allocation levels for 

these HCFCs meet the need for virgin 

material and avoid shortages during the 

affected control periods, as well as 

accommodate some market growth for 

the HCFCs for which EPA is allocating 

allowances for the first time in this 

action. 

For the years 2010–2014, the Montreal 

Protocol allows a cap of 3,810 ODP tons 

for U.S. HCFC consumption (resulting 

in an aggregate of 19,050 ODP tons over 

the five control periods) and 3,884.25 

ODP tons for U.S. HCFC production 

(resulting in 19,421.25 ODP tons over 

five control periods). Of that amount, 

EPA is allocating allowances totaling 

12,355.5 ODP tons of consumption and 

11,621.43 ODP tons of production over 

the five control periods. These 

allocations represent 65 percent of the 

consumption cap and 60 percent of the 

production cap established by the 

Montreal Protocol for 2010–2014. The 

difference between the cap and the total 

allocation reflects EPA’s estimate of the 

need for HCFCs during these control 

periods. It also will accommodate minor 

adjustments in the market, particularly 

to allow potential market growth for 

HCFCs that have not been produced or 

imported since 2003 (and which are 

therefore not reflected here). As 

discussed in more detail in Section 

IV.B.3, it will also encourage greater 

reclamation of recovered refrigerant and 

will facilitate preparation for the 2015 

phasedown in the consumption cap to 

10% of baseline. 

This action also changes two other 

components of the HCFC allowance 

allocation framework. First, to reflect 

the September 2007 Montreal 

Adjustments, EPA is adjusting the 

amount of Article 5 allowances for 

control periods 2010–2019. Second, 

EPA is completing its implementation of 

the provisions in section 605 of the 

Clean Air Act that relate to use and 

introduction into interstate commerce of 

class II substances. As discussed in 

Section VI.D. below, EPA is excepting 

the use of HCFC–22 in thermostatic 

expansion valves and in medical 

equipment from the accelerated 

restrictions on introduction into 

interstate commerce and use. EPA also 

is providing a limited grandfathering for 

use of HCFCs in refrigeration appliances 

that have not yet been ‘‘manufactured’’ 

under EPA’s interpretation of that term 

but whose components have been 

specified for installation under a 

building permit or contract dated on or 

before January 1, 2010. 

This final rule combined with the 

accompanying final rule titled 

‘‘Protection of Stratospheric Ozone: Ban 

on the Sale or Distribution of PreCharged Appliances’’ (EPA Docket: 

EPA–HQ–OAR–2007–0163) (referred to 

in this preamble as the Pre-Charged 

Appliances rule) will have the following 

effects on the sale, distribution, and 

installation of air-conditioning and 

refrigeration products charged with 

HCFC–22, HCFC–142b, or blends 

containing one or both of these 

substances. 

• Sale and distribution of appliances 

pre-charged with HCFC–22 or HCFC– 

142b is allowed for self-contained, 

factory-charged appliances such as precharged window units, packaged 

terminal air conditioners (PTACs), and 

some commercial refrigeration units, if 

manufactured before January 1, 2010. 

The pre-charged appliance rule does not 

prohibit sale and distribution of pre2010 inventory (i.e., stockpiled 

inventories). 

• Sale and distribution of appliances 

pre-charged with HCFC–22 or HCFC– 

142b is not allowed for self-contained, 

factory-charged appliances such as precharged window units, PTACs, and 

some commercial refrigeration units, if 

manufactured on or after January 1, 


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2010. This prohibition which is 

contained in the pre-charged appliance 

rule, applies regardless of when the 

refrigerant was produced and whether it 

is virgin or reclaimed. Under the 

allocation rule, neither stockpiled 

HCFC–22 produced prior to January 1, 

2010, nor new HCFC–22 produced after 

that date can be used to manufacture 

new appliances on or after January 1, 

2010. 

• Sale and distribution of appliance 

components pre-charged with HCFC–22 

or HCFC–142b is allowed if the 

components (e.g. condensing units, line 

sets, and coils that are charged with 

refrigerant) were manufactured before 

January 1, 2010. The pre-charged 

appliance rule does not prohibit sale or 

distribution of pre-2010 inventory (i.e., 

stockpiled inventories). 

• Pre-charged components 

manufactured before January 1, 2010, 

may be used to service appliances 

manufactured before January 1, 2010, 

but may not be assembled to create new 

appliances unless there is no use of 

virgin HCFC–22 or HCFC–142b, in the 

components or otherwise. The 

allocation rule prohibits use of virgin 

HCFC–22 and HCFC–142b in 

manufacturing new appliances. 

• There is no exemption from the precharged appliance rule for the sale or 

distribution of pre-charged appliances 

and pre-charged components that are 

charged with reclaimed HCFC–22 or 

HCFC–142b refrigerant. In other words, 

the provisions banning sale and 

distribution apply equally regardless of 

whether the appliances or components 

contain virgin or reclaimed refrigerant. 

• Under the allocation rule, virgin 

HCFC–22 or HCFC–142b may only be 

used to service existing appliances. 

Virgin HCFC–22 and HCFC–142b may 

not be used to manufacture new precharged appliances and appliance 

components. Virgin HCFC–22 and 

HCFC–142b also may not be used to 

charge new appliances assembled onsite 

on or after January 1, 2010, though new 

appliances (not pre-charged) may be 

charged with reclaimed refrigerant. 

• EPA is providing an exception to 

the allocation rule that allows virgin 

HCFC–22 to be used in the onsite 

‘‘manufacture’’ of appliances for a 

particular project between January 1, 

2010, and December 31, 2011, if the 

components have been specified for use 

at that project under a building permit 

or contract dated before January 1, 2010. 

• Under the allocation rule, HCFC–22 

produced prior to January 1, 2010, may 

be used until January 1, 2015, for the 

manufacture of thermostatic expansion 

valves (TXVs). 

• The sale and distribution of used 

appliances is not affected by either rule. 

IV. Allocation of Allowances for the 

2010–2014 Control Periods 

A. Baselines for HCFC–22 and HCFC– 

142b Allowances 

In the proposed rule, EPA presented 

five options for allocating HCFC–22 and 

HCFC–142b allowances for the control 

periods 2010–2014: (1) Allocating a 

percentage of the baseline production 

and consumption allowances (see 40 

CFR 82.17 and 82.19 respectively), with 

or without considering any intra- and/ 

or inter-pollutant transfers that resulted 

in a different amount of production or 

consumption for a specific HCFC; (2) 

allocating allowances based on 

evaluation of the most recent three years 

of production, import, and/or export 

data as reported to EPA; (3) allocating 

allowances based on an evaluation of 

past sales of HCFCs by allowance 

holders by considering how the HCFCs 

were ultimately used (e.g., servicing 

refrigeration or air-conditioning vs. 

original manufacture of refrigeration or 

air-conditioning equipment and foam 

blowing); (4) allocating allowances 

based on aggregated ODP tons; or (5) 

allocating a total amount of allowances 

and allowing for purchase by 

establishing an auction system. 

As discussed in the proposed rule, 

each of these five methods offers 

advantages and disadvantages for 

potential allowance holders that vary 

according to whether a particular entity 

is predominantly a producer or 

importer; whether it currently sells 

HCFC–22 and HCFC–142b to original 

equipment manufacturers, wholesalers, 

retailers, or companies that service 

appliances; whether the portion of its 

business that is ODS-based is expanding 

or contracting as the next major 

milestone in the phaseout approaches; 

its liquidity; whether it holds both 

HCFC–142b and HCFC–22 allowances 

and/or engages in inter-pollutant 

transfers; and whether it sold HCFCs for 

applications that do not lend themselves 

to servicing. Without regard to the 

practices of individual entities, each of 

the allocation schemes also offers 

advantages and disadvantages 

associated with the ease of 

implementation and other 

administrative burdens. 

In this final action, EPA is finalizing 

option 1 by allocating a percentage of 

the baseline allowances (§§ 82.17 and 

82.19) for HCFC–22 and HCFC–142b. As 

discussed in Section IV.A.2. of the 

preamble, EPA is modifying the baseline 

allowances through the consideration of 

permanent inter-company baseline 

transfers for the same HCFC but is not 

accounting for inter-pollutant transfers 

within a single company that resulted in 

a different amount of production or 

consumption for a specific HCFC on an 

annual basis. 

Of all the options, applying a 

uniformly smaller percentage of the 

existing baseline as the method for 

allocating HCFC–22 and HCFC–142b 

allowances is the least disruptive to the 

current market and best ensures a 

continued smooth transition away from 

ozone-depleting substances. This system 

closely matches the current HCFC 

allocation method, with which 

producers and importers are familiar. 

EPA provided notice of this option in 

the preamble to the 2003 allocation rule 

by indicating that EPA ‘‘intends to 

achieve this reduction step through 

notice and comment prior to 2010 and 

will likely implement the reduction by 

simply listing a percent of baseline 

allowances to be granted in § 82.16 for 

the years after 2009’’ (68 FR 2823). 

Many commenters have informed EPA 

that, based in part on this statement, 

producers and importers have aligned 

their business activities around the 

baselines set forth in the 2003 allocation 

rule. Such planning includes not only 

ensuring capacity to produce or import 

these HCFCs but also the establishment 

and maintenance of relationships with 

distributors and contractors. 

Second, on a related note, EPA agrees 

with a comment that this approach is 

the most consistent with the existing 

framework for recordkeeping and 

reporting. This option utilizes EPA’s 

existing ODS tracking system and does 

not require additional one-time or 

periodic reporting obligations that may 

be necessary under the other options. 

EPA uses information from quarterly, 

annual, and other periodic reporting 

requirements to monitor consumption, 

production, imports, and exports of all 

HCFCs. EPA also uses this information 

to ensure companies’ compliance with 

regulatory requirements and to develop 

reports that are requested by the Parties 

to the Montreal Protocol, including 

reports ascertaining U.S. compliance 

with the phaseout caps. The information 

enables EPA to monitor production and 

consumption for all HCFCs, including 

HCFCs for which baselines have not yet 

been established and for which 

allowances have not yet been allocated. 

Option 1 limits administrative burden 

for allowance holders, and additionally, 

can be implemented more quickly than 

other options. 

Third, EPA prefers option 1 because 

it applies an established and well-vetted 

baseline. All of the other options would 

require the Agency to disregard the 


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existing baseline in its entirety and rely 

on another basis for allocating 

production and consumption 

allowances. This would minimize the 

value of establishing a baseline and lead 

to market uncertainty. EPA seeks 

instead to minimize unanticipated 

changes and prevent market 

disruptions. EPA, however is making 

minor changes to company baseline 

allowances to reflect inter-company 

baseline trades, as discussed below. 

Most commenters preferred option 1 

for the reasons described above. Some 

commenters, however, favored the 

alternative approaches. The secondmost-favored allocation method was 

option 5, under which EPA would 

auction allowances. Commenters 

favoring this option preferred it because 

it could potentially allow for new 

entrants into an HCFC–22 market that 

those commenters say is dominated by 

a small number of large companies. 

These commenters typically disagreed 

with option 1 because it would favor the 

existing set of stakeholders. Option 1 

does not automatically prohibit new 

entrants, as they could acquire 

allowances from existing allowance 

holders under the existing regulatory 

framework. While EPA acknowledges 

that not having allowances can be a 

barrier to entry into this market, EPA 

does not believe it is necessary or 

appropriate to adopt a particular 

regulatory approach specifically for the 

purpose of encouraging new entrants at 

this point in a phaseout. 

In the July 20, 2001, proposed HCFC 

allocation rule, EPA expressed 

skepticism about promoting new 

entrants into the HCFC market: 

‘‘Encouraging new companies to join the 

business after the ANPRM would 

counter the efforts of moving people out 

of HCFCs into more environmentally 

sound substitutes. EPA believes that any 

new entrants following the ANPRM 

publication would not be precluded 

from entering the market, because they 

could purchase allowances from 

existing allowance holders who may not 

intend to use their full amount of 

allowances. They also have the 

opportunity to import recovered HCFCs 

through EPA’s petition system or deal in 

substitutes to HCFCs, which would 

benefit the ozone layer and provide 

longer-term business security. 

Accordingly, EPA believes that the 

market will sufficiently allow for any 

new entrants after April 5, 1999, as 

appropriate.’’ (66 FR 38073). In the 2003 

final rule, EPA provided a limited 

exemption for companies that began 

importing HCFCs after the first 

stakeholder meeting in 1997 but before 

the ANPRM publication date, after 

which they would have had reason to 

know of an imminent rulemaking 

allocating allowances based on 

historical production and importation. 

EPA did not extend this exemption 

further because once public notice was 

given via the ANPRM, ‘‘businesses that 

desired an allocation of HCFC 

allowances would have known the risks 

of jumping into the business at this 

juncture.’’ (66 FR 38073). Since that 

time eight years ago, access to 

information and knowledge of the risks 

regarding entering the HCFC–22 market 

have only increased. There have been 

new entrants to the market, as 

evidenced by commenters seeking 

allocation rights who were not in 

operation in 2003. These entities have 

entered the market by purchasing 

consumption allowances, as EPA 

predicted they could back in 2003. 

These entities can continue to purchase 

consumption allowances or import 

substitutes for HCFCs. As the market 

continues to decrease, EPA does not 

believe that providing consumption 

allowances to these or other new 

entities is necessary to prevent 

disruption to the continued servicing of 

existing equipment. Given EPA’s intent 

to phase down, and ultimately phase 

out, the use of HCFC–22, consistent 

with the requirements of the CAA and 

obligations under the Montreal Protocol, 

EPA believes it is justified in continuing 

to allocate only to those entities who 

participated in the market at the initial 

stages as well as those that have entered 

the market by purchasing HCFC–22 

baseline allowances in accordance with 

the established practices. EPA therefore 

does not believe that choosing this 

option for the purpose of opening up the 

market to new entrants is appropriate at 

this time as it may create disruption to 

the existing regulatory framework. 

EPA also suggested, in option 4, that 

it could allocate allowances on an ODPton-weighted basis, authorizing 

allowance holders to consume or 

produce any combination of HCFC up to 

that ODP limit. Only one commenter 

supported this option, saying it would 

be more closely aligned with the 

requirements of the Montreal Protocol, 

which established a total ODP cap, and 

would more closely approximate an 

unregulated market. Furthermore, EPA 

would not need to predict the supply 

and demand for individual HCFCs. The 

commenter recognized, though, that it 

would have been better to establish such 

a system in the 2003 allocation rule and 

that it would be more difficult to 

implement today. At this point in the 

phaseout, EPA does not believe that it 

would be appropriate to switch to an 

ODP-weighted allocation. EPA raised, 

and rejected, this option in 2003 when 

it initially established baselines and 

allocated production and consumption 

allowances for HCFCs. In 2003, EPA 

applied a ‘‘worst first’’ approach to the 

phaseout of HCFCs and set limits only 

on HCFC–141b, HCFC–22, and HCFC– 

142b. Moving to an ODP-weighted 

allocation system at this point would 

disrupt the market and not reflect the 

market decisions made between 2003 

and 2009. 

Finally, options 2 and 3 received 

limited support from commenters. EPA 

is not persuaded that changing the 

baseline allowances through any of the 

methods presented in those options 

would be more appropriate than the 

manner proposed under option 1. EPA 

discusses comments on these options in 

the response to comments document, 

available in the docket for this 

rulemaking. 

After considering comments, EPA is 

allocating a percentage of the baseline 

allowances for HCFC–22 and HCFC– 

142b, per option 1, in this final rule. 

The specific percentages are discussed 

in Section IV.C. below. 

1. Adjusting the Baseline for Intercompany and Inter-pollutant Transfers 

Sections 607(b) and (c) of the Clean 

Air Act permit inter-pollutant and intercompany transfers of allowances, 

respectively. Inter-pollutant transfers 

are the transfer 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 inter-pollutant 

transfers, so long as the requirements of 

both are met. The corresponding 

regulatory provisions appear at 40 CFR 

82.23. 

EPA proposed in allocation option 1 

to establish a percentage of baseline 

allowances for each HCFC ‘‘with or 

without considering any permanent 

baseline transfers and/or inter-pollutant 

transfers that resulted in a different 

amount of production or consumption 

for a specific HCFC included’’ 

(emphasis added). The companyspecific baselines in the proposed 

regulatory text did, though, reflect 

adjustments resulting from approved 

inter-company transfers of baseline 

allowances (i.e., permanent rather than 

calendar-year allowances) as well as 

intra-company, inter-pollutant transfers. 

EPA received multiple comments on 

how transfers of allowances should be 

reflected in company baselines. All 

comments on the issue supported 


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adjusting the baselines to reflect intercompany transfers. Most commenters 

were opposed, however, to adjusting a 

company’s baseline to reflect interpollutant transfers occurring within that 

company. As discussed in this section, 

the final allocation reflects adjustments 

due to inter-company transfers but not 

inter-pollutant transfers. 

In this final rule, EPA is updating the 

baselines for HCFC–22 and HCFC–142b 

to reflect name changes and permanent 

inter-company baseline transfers. Doing 

so reflects the changes in the 

marketplace that have occurred since 

the last time EPA addressed these 

baselines. As discussed above, 

permanent inter-company baseline 

transfers provide a mechanism for new 

entrants to join or expand in the HCFC– 

22 market and for other companies to 

expand their business. When EPA 

allocated allowances from 2004 to 2009, 

the Agency made minor changes to 

reflect such permanent trades of 

baseline allowances. EPA recognizes 

that in some cases entities are no longer 

actively involved in HCFC production, 

import, and/or export activities. EPA 

sought comment on whether it should 

retain the baselines for such entities or 

whether it should retire, auction, or 

redistribute the baselines among the 

active entities. EPA received only one 

comment on the issue, which favored 

EPA’s preferred approach of retaining 

the baseline for those entities. The 

commenter noted that any allowances 

distributed to passive holders will find 

their way into circulation if needed. 

EPA agrees, as this has been a 

mechanism by which new entrants have 

entered the HCFC allocation system in 

the past. 

Eight commenters opposed, and two 

commenters supported, the proposed 

adjustments to company baselines to 

reflect intra-company, inter-pollutant 

transfers. At issue is the fact that two 

companies have made inter-pollutant 

transfers with the apparent intent of 

reflecting them as permanent 

adjustments to their baseline 

allowances. Comments in opposition 

stated that adjusting the baselines to 

account for these permanent interpollutant transfers would inequitably 

redistribute allowances. Because 

allowance holders receive allocations 

based on a percentage of market share, 

increasing allowances to two companies 

has the effect of decreasing allowances 

to the other market participants. Thus, 

two companies would receive 38% and 

912% more HCFC–22 allowances while 

the remaining companies would each 

receive 16% fewer HCFC–22 

allowances. Commenters opposed to 

this redistribution requested that EPA 

utilize the 2003 baseline and claim it 

would be the most equitable way of 

reducing and allocating allowances 

among the entire community. 

Three commenters also stated that 

allowing these transfers would 

unnecessarily disrupt the marketplace. 

They stated that stakeholders believed 

that EPA would allocate allowances in 

2010–2014 by reducing allowances to 

all baseline allowance holders by an 

equal percentage and planned 

accordingly. They did not anticipate an 

increase in allowances to some 

companies resulting in a significant 

decrease for them. According to the 

commenters this shift in HCFC–22 

allowances would require distributors to 

seek material from different suppliers 

than in the past and would thus 

disadvantage the allowance holders and 

their customers. 

In the 2003 rule, both EPA and 

commenters to that rule recognized the 

flexibility that inter-pollutant and intercompany transfers provide. One 

company has utilized inter-pollutant 

transfers annually since 2006. Each year 

it has converted over 95% of its HCFC– 

142b allowances to HCFC–22 

allowances to supply the servicing 

market. Allowing inter-pollutant 

transfers since 2006 has had little 

impact on the greater marketplace 

because it did not reduce the allocation 

levels for the other allowance holders. 

Commenters have demonstrated to EPA 

how treating inter-pollutant trades as 

permanent would negatively affect all 

other allowance holders. While the 

company that has historically relied on 

these transfers would be negatively 

affected by not treating its interpollutant transfers as permanent, EPA is 

concerned that reflecting such transfers 

in this rule would disrupt the entire 

market in 2010 and could encourage 

greater disruption in future control 

periods. Commenters pointed out that 

adjusting the baselines to reflect intracompany, inter-pollutant transfers could 

create incentives for future 

manipulation of the allocation system in 

anticipation of the future control 

periods. For example, in 2020 EPA will 

no longer be issuing HCFC–22 

allowances. EPA has anticipated that 

companies with HCFC–22 allowances 

would no longer be in the HCFC market 

at that date if they did not hold 

allowances for other HCFCs that are still 

allowed after 2020. For example, if EPA 

were to establish an allocation 

framework based on inter-pollutant 

trades, in 2019 companies with HCFC– 

22 allowances could convert them all to 

allowances for HCFC–123 or some other 

compound for which allowances are 

available and thus remain in the market. 

As another example, in 2015 a producer 

or importer that previously had not 

participated in the HCFC–123 market 

could dominate that market by 

converting its HCFC–22 allowances in 

2014 to HCFC–123 allowances. Given 

the different ODPs of HCFC–22 and 

HCFC–123, converting one allowance of 

HCFC–22 would result in 2.75 

allowances of HCFC–123. Also, since 

companies hold many more HCFC–22 

allowances than HCFC–123 allowances, 

converting those HCFC–22 allowances 

would have an overwhelming effect on 

the current HCFC–123 allowance 

holders. In effect, establishing 

allocations based on permanent interpollutant transfers would transform the 

U.S. HCFC phasedown from a chemicalby-chemical phaseout, as established 

under the ‘‘worst-first’’ approach in the 

1993 rule, to an ODP-weighted 

phasedown. Under an ODP-weighted 

phasedown, allowance holders could 

permanently transfer their production 

and import of specific HCFCs so long as 

the total ODP cap is not affected. 

Companies that do not transfer their 

allowances, however, would remain 

holding a smaller percentage of the total 

ODP cap, and thus would be left with 

fewer allowances. The ODP-weighted 

method was rejected in both the 2003 

rule and this rule, though EPA did take 

comment on it in the proposal, as 

discussed in the previous section. 

Some commenters stated that 

modifying the baselines by taking into 

account intra-company, inter-pollutant 

transfers would be contrary to the Clean 

Air Act. One commenter argued that 

section 607 of the Clean Air Act allows 

EPA to approve inter-pollutant transfers 

of allowances only on a year-to-year 

basis. That commenter pointed 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.’’ The 

commenter also discussed the 

legislative history of the 1990 Clean Air 

Act Amendments. 

After considering the language of 

section 607 and the legislative history, 

EPA believes that section 607(b) is best 

read as permitting only year-by-year 

inter-pollutant transfers. 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 


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6EPA has defined Recover, Recycle, and Reclaim 

at § 82.152 as follows: (1) Recover refrigerant means 

to remove refrigerant in any condition from an 

appliance and to store it in a external container 

without necessarily testing or reprocessing it in any 

way; (2) recycle refrigerant means to extract 

refrigerant from an appliance and clean refrigerant 

for reuse without meeting all of the requirements 

for reclamation. In general, recycled refrigerant is 

refrigerant that is cleaned using oil separation and 

singe or multiple passes through devices, such as 

replaceable core filter-driers, which reduce 

moisture, acidity, and particulate matter. These 

inter-pollutant transfers between two or 

more persons must meet the 

requirements of section 607(b). Hence, 

EPA interprets section 607 as requiring 

that all inter-pollutant transfers, 

whether occurring between companies 

or within a single company, be 

conducted on a yearly—and thus 

temporary—basis. 

EPA has made past statements that are 

consistent with this interpretation. In 

the 2003 rule that established the 

allowance system for HCFCs (68 FR 

2835), EPA stated: ‘‘The permanent 

transfer of baseline allowances is a 

lasting shift of some quantity of a 

company’s allowances to another 

company.’’ EPA also indicated what 

would happen at the time of the next 

stepdown or phaseout date: ‘‘[A]t the 

time of a reduction step or a phaseout 

of the substance, the current holder of 

baseline allowances that were received 

in a permanent transfer would be the 

person who would have them 

deducted.’’ EPA decided in the 2003 

rule to ‘‘allow permanent transfers of 

baseline allowances with those 

allowances disappearing at the phaseout 

date for the specific HCFC, regardless of 

what inter-pollutant transfers had taken 

place’’ (68 FR 2835). Further discussion 

of this issue appears in the response to 

comments document available from the 

docket. 

In summary, this final rule reflects the 

changes in consumption and production 

baseline allowances from inter-company 

transfers but not inter-pollutant 

transfers. The resulting consumption 

baseline amounts for HCFC–22, HCFC– 

142b, and HCFC–141b are shown below 

in Table 3. 

2. Meeting the Needs of Certified 

Reclaimers 

Many commenters requested that EPA 

allocate allowances to certified 

reclaimers to ensure that they would be 

able to obtain the virgin HCFCs needed 

for mixing with recovered HCFCs 

during the reclamation process. 

Recovered refrigerant often contains 

contaminants, including air, water, 

particulates, acidity, chlorides, high 

boiling residues, and other impurities 

including other refrigerants. 

Reclamation is the re-processing and 

upgrading of a recovered controlled 

substance through such mechanisms as 

filtering, drying, distillation, and 

chemical treatment in order to restore 

the substance to the purity levels 

specified in Appendix A to 40 CFR part 

82, subpart F (based on ARI Standard 

700, ‘‘Specifications for Fluorocarbon 

and Other Refrigerants’’). While most of 

the contaminants can be efficiently 

removed to bring the purity to ARI 

Standard 700, removing crosscontamination from other refrigerants 

poses additional challenges due to their 

chemistry. One method of separating 

out other refrigerants is to pass the 

material through a distillation tower, 

potentially several times. Some 

reclaimers blend virgin material with 

cross-contaminated recovered material 

to bring the material up to ARI Standard 

700. Reclaimers do not currently have a 

consumption baseline per se; however, 

a limited number of reclaimers that also 

are HCFC importers do have a 

consumption baseline. Therefore, 

generally reclaimers purchase virgin 

HCFC–22 from allowance holders in a 

manner similar to other HCFC users 

such as air-conditioning and 

refrigeration appliance manufacturers. 

Forty-five commenters encouraged 

EPA to allocate HCFC–22 consumption 

allowances to reclaimers so that they 

would have improved access to virgin 

HCFC–22 which they could then blend 

with recovered HCFC–22. The 

comments stated in various ways that 

having allocations would (1) improve 

the economics of reclamation, (2) foster 

greater recovery, (3) foster greater 

reclamation, and (4) provide 

environmental benefits. The primary 

mechanism suggested by commenters 

was that EPA provide to reclaimers an 

amount equal to 10% of the total annual 

HCFC–22 allocation. This method 

would reduce the amounts that the 

existing allowance holders would 

otherwise have received by 10% and 

redirect those allowances to certified 

reclaimers. EPA would allocate that 

10% among reclaimers based on the 

amount of material each company 

reclaimed in some prior year, as 

reported to EPA under existing section 

608 requirements. 

First, commenters in support of 

allocating consumption allowances to 

reclaimers stated that it would improve 

the economics of the reclamation 

industry. Reclamation through 

separation and distillation requires 

costly distillation towers that are 

energy-intensive, and thus expensive, to 

operate. Alternatively, reclaimers who 

practice blending must purchase virgin 

HCFC–22, often at market prices. These 

commenters stated that having 

allocation rights would allow reclaimers 

to import HCFC–22 at a lower cost and 

thus be able to sell reclaimed HCFC–22 

at a price that is competitive with 

domestically produced or imported 

virgin HCFC–22. 

Second, these commenters stated that 

acquiring less expensive virgin material 

could help defray other costs associated 

with refrigerant reclamation, thereby 

allowing them to reclaim more 

contaminated (i.e., more economically 

marginal) refrigerant. One commenter 

stated that reclaimers have many tons of 

material in inventory that could be 

reclaimed through blending but that it 

currently cannot reprocess without 

virgin material at competitive prices. 

Third, these commenters stated that 

allocations to reclaimers would increase 

refrigerant recovery rates. Reclaimers 

would be more financially able to accept 

slightly cross contaminated HCFCs from 

contractors and wholesalers without 

needing to assess additional fees on 

them to pay for destruction or fractional 

distillation. Removing this disincentive 

for returning contaminated material 

would encourage more recovery and 

discourage an incentive to vent 

refrigerant. One commenter estimated 

that allocations for reclaimers would 

result in as much as a 15% increase in 

recovered refrigerant within the first 

two years of allocations. 

Finally, these commenters claimed an 

environmental benefit from encouraging 

these less expensive blending practices. 

They stated that blending reduces the 

need for fractional distillation, a process 

that utilizes 300 times more energy than 

blending and they observed that 

increased recovery means less 

refrigerant is vented into the 

atmosphere. 

In addition to comments supporting 

allocation of consumption allowances to 

certified reclaimers, EPA also received 

two comments stating that allocations to 

reclaimers are not necessary and will 

not encourage greater recycling/ 

reclamation in the marketplace. These 

commenters stated that (1) current 

reclamation capacity is sufficient to 

meet greater future demand; (2) 

separation and distillation technology 

currently exists, precluding the need for 

virgin HCFC–22 to reclaim recovered 

HCFCs; and (3) allocating allowances to 

reclaimers creates numerous 

administrative and practical challenges 

that were not presented for notice and 

comment. 

EPA has previously detailed the 

importance of recovering and reusing 

HCFC–22 and the Agency strongly 

encourages increased recovery and 

either recycling or reclamation 6 of 


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procedures are usually implemented at the field job 

site; (3) reclaim refrigerant means to reprocess 

refrigerant to all of the specifications in appendix 

A to 40 CFR part 82, subpart F (based on ARI 

Standard 700–1995, Specification for Fluorocarbons 

and other Refrigerants) that are applicable to that 

refrigerant and to verify that the refrigerant meets 

these specifications using the analytical 

methodology prescribed in section 5 of appendix A 

of 40 CFR part 82, subpart F. 

HCFC–22. Section 608 of the CAA 

prohibits the intentional venting of 

HCFCs and EPA regulations require that 

they be recovered and then either 

recycled, reclaimed, or destroyed. The 

recovery and reuse of HCFCs prevents 

emissions to the atmosphere where they 

can deplete the stratospheric ozone 

layer and reduces the amount of virgin 

material that needs to be produced. 

Recovery becomes even more important 

in light of the 2015 Montreal Protocol 

phasedown step, when the U.S. HCFC 

consumption cap is reduced from 3,810 

ODP-weighted metric tons to 1,524 

ODP-weighted metric tons. In its report 

The U.S. Phaseout of HCFCs: Projected 

Servicing Needs in the U.S. AirConditioning and Refrigeration Sector 

(the ‘‘Servicing Tail’’ report), EPA 

estimates that to meet demand in 2015, 

recovered material will have to provide 

29% of the total servicing demand for 

HCFC–22. A smooth transition for 

stakeholders—including continued 

availability of needed material for 

approved uses—has historically been an 

essential aspect of the U.S.’s success in 

implementing the Montreal Protocol 

and Clean Air Act requirements. EPA 

therefore has given much consideration 

to the suggestion raised by commenters. 

EPA does not believe, though, that 

allocating allowances to reclaimers in 

this rulemaking is necessary or the most 

appropriate action that EPA can take to 

foster greater recovery and reclamation 

of HCFC–22. 

First, while commenters stated that 

providing allowances to reclaimers for 

HCFCs to be used in blending may 

foster increased recovery, EPA is 

concerned that it may foster 

unsustainable reclamation practices. 

Commenters stated that the blending 

ratios of virgin to recovered material 

range from 4:1 to as high as 10:1 

(reflecting ‘‘blending up’’ recovered 

material from either 98.5% pure or 

97.5% pure respectively, to 99.5%). The 

amount of virgin HCFC–22 produced or 

imported for all purposes, including for 

blending out impurities, will decrease 

significantly in 2015 when the overall 

HCFC cap declines from 25% of 

baseline to 10% of baseline. Production 

and import of virgin HCFC–22 for 

refrigerant uses will cease in 2020. 

Therefore, reclamation through 

separation and distillation will be more 

important in 2015 and absolutely 

necessary in 2020. 

Second, allocating allowances to 

reclaimers would be a major change to 

the rule that would affect other 

stakeholders who have not had the 

opportunity to comment on the 

reclaimers’ suggestion. Current 

allowance holders would have their 

allocations reduced 10% under this 

suggestion. If EPA were to finalize such 

a suggestion, EPA would want to 

provide other stakeholders an 

opportunity to comment. The suggestion 

raises several issues that would benefit 

from the notice and comment process. 

Specifically, issuing allowances to 

reclaimers raises questions of who 

would receive allowances, what the 

baselines would be, and how many 

allowances would be allocated. Other 

questions about how to implement this 

suggestion would include whether EPA 

should provide additional allowances to 

reclaimers that currently have baseline 

allocations, and whether EPA should set 

the baseline according to the amount 

reclaimed, as commenters suggested, or 

according to the amount recovered. 

Furthermore, some reclaimers currently 

manufacture and sell niche blend 

refrigerants that include HCFC–22 as a 

component, so EPA would need a 

mechanism to ensure that they would 

use the allocation for reclamation 

purposes, not for continued production 

of these blends. Different allocation 

methods offer advantages and 

disadvantages for potential allowance 

holders that vary according to the 

specific characteristics of the 

stakeholder. Thus, altering the final rule 

to accommodate the reclaimers’ 

suggestion is not a simple matter. If EPA 

were to issue a supplemental proposal 

to provide an opportunity for all 

stakeholders to comment on these 

issues, the rule would likely be delayed 

beyond January 1, 2010. This would 

have a negative impact on all 

stakeholders who are depending on an 

allowance allocation for the production 

and import of HCFCs in 2010. 

Third, EPA believes that it can take 

other actions in this rule that will foster 

recovery and reclamation while 

avoiding the complications raised by the 

commenters’ suggestion. The same 

commenters that suggested allocations 

to reclaimers also noted that a constant 

allocation rate over the five control 

periods, as proposed, might discourage 

rather than foster reclamation. To avoid 

that, in this final rule EPA is allocating 

at 80% of the estimated demand in 2010 

and is reducing the allocation over five 

years. EPA anticipates that the price of 

HCFC–22 will increase as allocations 

decrease and supply is reduced. Some 

of the economic constraints for recovery 

and reclamation will therefore loosen 

and more recovered material being held 

in inventory may be reclaimed. EPA 

believes that encouraging the market for 

recovered material in this way will be 

the most effective and appropriate 

mechanism that this current rulemaking 

can take to increase recovery and 

reclamation. 

Overall, while EPA agrees that 

recovery practices should be improved 

and reclamation expanded, the Agency 

does not agree with commenters that 

EPA should provide allocations to 

reclaimers at this time as a way of doing 

so. Therefore, in this final rule, EPA is 

not adding new entrants based on their 

status as EPA-certified refrigerant 

reclaimers. EPA may consider such an 

approach when proposing future 

allocation rules. 

B. Factors for Considering Allocation 

Amounts for HCFC–22 and HCFC–142b 

EPA proposed to allocate HCFC–22 

and HCFC–142b allowances based on 

the projected servicing needs for those 

compounds, taking into account the 

amount of those needs that can be met 

through recycling and reclamation. The 

proposed rule discussed and sought 

public comment on two alternate 

methods for determining how many 

allowances to allocate in 2010–2014 for 

these two compounds. One alternative 

that EPA rejected would have allocated 

the maximum amount of HCFC–22 and 

HCFC–142b that ensures compliance 

under the Montreal Protocol aggregate 

cap in 2010 without room for other 

HCFCs. The other alternative EPA 

rejected would have been to allocate a 

percentage of the aggregate HCFC 

consumption and production caps in 

2010 for HCFC–22 and HCFC–142b 

equal to the same overall percentage of 

the aggregate HCFC consumption and 

production caps allocated for each 

substance in the 2003 allocation rule. 

Thus, in 2003, EPA allocated HCFC–22 

allowances equal to 66 percent of 9,906 

ODP tons and HCFC–142b allowances 

equal to 13 percent of 9,906 ODP tons. 

This second method would have 

applied the same percentages to the 

total allowable HCFC consumption level 

for 2010–2014 of 3,810 ODP-weighted 

metric tons (i.e. 2,515 ODP tons of 

HCFC–22 and 495 ODP tons of HCFC– 

142b). EPA rejected these alternate 

methods because they do not consider 

servicing needs and thus could result in 

shortages or oversupply of HCFC–22. 

Additional discussion of these 

alternatives is found in the proposed 

rule. Neither of these approaches 

received favorable comment. EPA 


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therefore concludes that an approach 

based on the servicing need is most 

appropriate for allocating HCFC–22 and 

HCFC–142b allowances. Because it is 

important to promote greater use of 

recycled and reclaimed material in 

anticipation of the 2015 phasedown 

step, EPA does not intend to allocate the 

difference between the allocation 

authorized by the Parties of the 

Montreal Protocol and the allocation 

authorized by this rulemaking except 

under unforeseen extenuating 

circumstances. 

1. The Importance of HCFC–22 

Servicing Needs for Existing Equipment 

HCFC–22 is the most widely used 

HCFC and the demand for its use in 

servicing existing equipment is the 

primary factor affecting EPA’s estimate 

of production and consumption of 

HCFCs in the coming years. EPA has 

issued and sought comment on three 

versions of a draft report analyzing 

servicing demand for the HCFC 

appliances in the U.S. refrigeration and 

air-conditioning sector projected to be 

in service from 2010–2019. The 

Servicing Tail report focuses on airconditioning and refrigeration 

appliances because such equipment will 

represent the bulk of the servicing need. 

In addition, the servicing exception to 

the use ban for HCFC–22 and HCFC– 

142b pertains only to use as a refrigerant 

in such equipment. Under section 

605(a) of the Clean Air Act and EPA’s 

implementing regulations, nearly all 

other uses of these two HCFCs are 

banned effective January 1, 2010. The 

projected servicing need for HCFC–22 in 

2010 is approximately 62,500 metric 

tons (3,438 ODP-weighted metric tons), 

or approximately 90 percent of the 

consumption cap for all HCFCs in 2010, 

which is 3,810 ODP-weighted metric 

tons. HCFC–142b has primarily been 

used as a foam blowing agent, a use 

which will be phased out in 2010. The 

projected servicing need for existing 

refrigeration equipment containing 

HCFC–142b is extremely low: 

approximately 100 metric tons (7 ODP 

tons). EPA therefore has focused the 

analysis on HCFC–22 because that 

compound is the predominant HCFC in 

the installed base of air-conditioning 

and refrigerant equipment for which 

servicing in the U.S. will likely 

continue. 

The Servicing Tail Report provides a 

classification of refrigeration and air 

conditioning equipment that continue to 

use HCFC–22. Refrigeration equipment 

can be categorized as: (1) Domestic 

refrigeration, (2) refrigerated transport, 

(3) industrial process refrigeration, and 

(4) commercial refrigeration. Domestic 

refrigeration includes household 

refrigerators, household freezers, 

combination refrigerator/freezer units, 

and water coolers. With the exception of 

certain older household freezers that use 

HCFC–22, this category typically does 

not use HCFCs or blends containing 

HCFCs. Refrigerated transport includes 

refrigeration used in equipment that 

moves products from one place to 

another and includes refrigerated ship 

holds, truck trailers (i.e., reefer trucks), 

railway freight cars, and other shipping 

containers. Industrial process 

refrigeration systems are complex, 

customized systems used to cool 

process streams in the chemical, food 

processing, pharmaceutical, 

petrochemical, and manufacturing 

industries. This sector also includes 

industrial ice machines, equipment 

used directly in the generation of 

electricity, and ice rinks. Commercial 

refrigeration appliances that continue to 

use HCFC–22 can be further broken 

down into two end uses: cold storage 

warehouses and retail food refrigeration 

systems. 

The majority of HCFC–22 equipment 

that is projected to be in use from 2010 

onward will be air-conditioning 

applications, including window units, 

packaged terminal units, unitary airconditioning, chillers, dehumidifiers, 

water and ground source heat pumps, 

and mobile air-conditioning in buses 

and trains. EPA projects that 

approximately 145.6 million units of all 

such types of HCFC–22 air-conditioning 

equipment will be in use in 2010, 

decreasing from 2010 levels by about 41 

percent in 2015 and 86 percent in 2020. 

In addition, approximately 3.8 million 

units of HCFC–22 refrigeration 

equipment will be in use in 2010. The 

installed base of HCFC–22 refrigeration 

equipment is projected to decrease from 

2010 levels by about 44 percent in 2015 

and 75 percent in 2020. 

EPA developed these estimates using 

its Vintaging Model. This model is the 

primary tool that EPA used to launch 

the analysis and form the basis for 

quantitative estimates of 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. Additional information on the 

Vintaging Model is available in the 

docket for this rulemaking. 

On November 4, 2005, EPA published 

a Notice of Data Availability (70 FR 

67172) making the first draft of the 

Servicing Tail report available for public 

review and comment. On September 29, 

2006, EPA held a stakeholder meeting 

presenting the findings in the second 

draft of the Servicing Tail report along 

with other important information 

regarding the next major milestones in 

the HCFC phaseout. EPA solicited 

additional comments on the findings 

presented at the meeting. 

Representatives of air conditioning and 

refrigeration manufacturers, chemical 

producers, importers, reclaimers, 

industry associations, and 

environmental organizations 

commented on the projected amount of 

HCFCs needed to service the installed 

base of equipment and on the amounts 

expected to be available from 

reclamation. In June 2008, EPA 

prepared a third draft of the Servicing 

Tail report to: (1) Reflect the September 

2007 Montreal Adjustment, in which 

the Parties agreed to adjust the stepwise 

reduction in 2010 from 65 percent of 

baseline to 75 percent of baseline for 

non-Article 5 Parties; (2) consider more 

recent production and consumption 

data in the United States; and (3) 

consider more recent trends in the airconditioning and refrigeration sectors. 

EPA placed this revised draft report in 

the docket and accepted comments on it 

during the public comment period. 

These comments are discussed below. 

The projections of past HCFC 

consumption, as presented in the 

Servicing Tail report, showed 

reasonable agreement with production, 

import, and export data reported to the 

Agency as required by 40 CFR 82.24 on 

a quarterly, annual, and transactional 

basis. EPA’s analysis of the reported 

data confirms that the United States is 

satisfying its obligations as it phases out 

ODS and enables EPA to consider trends 

in the HCFC markets on a chemical-bychemical basis. EPA also uses this 

information to submit an annual report 


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to the Ozone Secretariat as required by 

the Parties to the Montreal Protocol. 

The projected servicing need for 

HCFC–22 in 2010 is 62,500 metric tons 

(3,438 ODP-weighted metric tons), or 

approximately 90 percent of the ODPweighted consumption cap for all 

HCFCs in 2010, which is 3,810 ODPweighted metric tons. EPA estimates 

that the servicing need for HCFC–22 

will continue to decrease each year, and 

this final rule accounts for this by 

decreasing the allocation annually in 

each of the years 2011–2014. In contrast, 

the lead option in the proposed rule 

would have maintained a constant 

HCFC–22 allocation of 50,000 metric 

tons in 2010 through 2014. EPA 

recognizes that in 2013 and 2014 the 

proposed HCFC–22 allocation would 

surpass projected need. This is one 

reason why EPA is not allocating a 

constant amount of HCFC–22 

allowances for the years 2010–2014. 

This final rule allocates at 20% below 

modeled need in 2010, decreasing to 

26% below the modeled need in 2014, 

and relies on a consistent amount of 

reclaimed material to assist in meeting 

projected servicing needs. This 

approach is described in Section IV.B.3 

below. Estimates of projected need are 

discussed in the Servicing Tail report 

found in the docket to this rule. 

After review of comments and other 

data and estimates of HCFC servicing 

needs, EPA is not convinced that there 

is any reason to allocate above the need 

projected in the Servicing Tail report. In 

general, commenters supported the 

analysis presented in the Servicing Tail 

report. These repeated efforts to seek 

and incorporate comments on this 

analysis are important to the Agency, as 

the final rule bases the allocation 

amounts on the demand estimates it 

contains. While EPA received four 

additional comments on the Servicing 

Tail report in association with the 

proposed rule, the Agency is confident 

that this report accurately reflects the 

existing demand for HCFC–22 to 

support servicing of existing equipment. 

Two commenters asked EPA to 

describe why it projects a decrease in 

post-2010 HCFC–22 demand of 

approximately 6,100 metric tons 

compared to the previous version of its 

Servicing Tail report. The decrease in 

projected HCFC–22 demand between 

the September 2006 and June 2008 

reports is a direct result of updates 

made to EPA’s Vintaging Model based 

on industry and stakeholder input as 

well as EPA’s own research. EPA 

updated the Vintaging Model to reflect 

slight increases in HCFC–22 demand for 

chillers, cold storage, and industrial 

process refrigeration, and to reflect a 

decrease in HCFC–22 demand for 

dehumidifiers and a significant decrease 

in HCFC–22 demand for retail food end 

uses. These changes are part of EPA’s 

ongoing effort to improve modeling 

assumptions. Model assumptions and 

results (such as consumption and 

emissions estimates) from major airconditioning and refrigeration end-uses 

were presented at the April 2007 spring 

meeting of the Air-Conditioning, 

Heating, and Refrigeration Institute 

(AHRI). EPA revised the Vintaging 

Model based on research done in 

preparation for those meetings and 

based on comments received on those 

presentations. EPA subsequently used 

revised model output to update the June 

2008 report. 

One of the commenters also asked 

technical questions pertaining to the 

Vintaging Model and stated a belief that 

the change might be due to clerical 

errors in the 2008 report. Specifically, 

the commenter noted that (1) HCFC–22 

chilling units expected to be in service 

in 2010 increase by 4,295% between the 

2006 and 2008 reports; (2) 2010 unitary 

projections for HCFC–22 retail food 

refrigeration equipment increases 72% 

between the two most recent reports; 

and (3) there is a decrease of over two 

million dehumidifiers projected to be in 

service in 2010, which is the only 

significant projected equipment 

reduction. The increase in R–22 chiller 

units between the 2006 and 2008 reports 

is not a clerical error; it is the result of 

the addition of new chiller end-uses 

into the model and resulting analysis. 

Second, updates made to assumptions 

for the retail food end-uses in the model 

did result in an increase in equipment. 

However, despite the increase in the 

number of units, there was a decrease in 

stocks, growth rates, leak rates, and 

charge sizes which caused a decrease in 

R–22 demand post-2010. Finally, 

conversations with industry indicated 

that dehumidifier projections in the 

September 2006 report were too high. 

EPA discusses these questions raised by 

commenters in more detail in the 

response to comments document. 

One commenter suggested that the 

current economic climate may slow the 

transition to new equipment, as owners 

seek to repair rather than replace 

existing equipment, an effect which the 

2008 Servicing Tail report does not 

reflect. While the Servicing Tail report 

does not consider effects from the recent 

economic downturn, the servicing 

estimate does account for the practice of 

replacing components rather than 

installing new equipment. EPA notes 

that while the economic downturn may 

extend the time existing HCFC–22 

equipment is used, it has also reduced 

the amount of HCFC-based equipment 

installed and hence will reduce future 

demand for servicing. EPA understands 

that the actual transition will not 

perfectly synchronize with the model 

year-by-year, whether for economic 

conditions, weather, or other events. 

However, the combination of reclaimed 

and virgin HCFCs should be sufficient 

to meet demand. 

One commenter stated that there are 

significant barriers to a rapid transition 

to equipment that uses ozone-safe 

hydrofluorocarbons (HFCs) before and 

after January 1, 2010. EPA responds that 

the transition to HFC or other SNAPacceptable substitute refrigerants is only 

required for new equipment. 

Furthermore, EPA’s discussion with 

manufacturers of equipment and foam 

formerly reliant on HCFC–22 and 

HCFC–142b indicate that the industry 

has been working for some time to 

implement such alternatives by January 

1, 2010. The January 1, 2010, date for 

restricting the use of newly production 

or imported HCFC–22 and HCFC–142b 

was established and published in the 

Federal Register on December 10, 1993 

(58 FR 65018). 

Using reported data, the June 2008 

version of the Servicing Tail report, and 

comments provided at the September 

2006 stakeholder meeting, submitted in 

subsequent correspondence (available in 

the docket), and provided in response to 

the proposed rule, the Agency has 

sufficient information to allocate a 

percentage of baseline allowances for 

HCFC–22 and HCFC–142b for 

production and consumption in 2010– 

2014 for servicing needs. The specific 

percentage of baseline for each of the 

affected compounds is discussed below. 

2. Meeting Servicing Needs With Virgin 

and Reclaimed Material 

The Agency recognizes that servicing 

needs can be met with a combination of 

newly-manufactured HCFCs (virgin 

HCFCs) and HCFCs that have been 

recovered and either recycled or 

reclaimed. Therefore, EPA does not 

anticipate that virgin HCFC–22 will 

need to be produced or imported to 

meet the entire HCFC–22 servicing need 

(estimated to be 3,438 ODP tons in 

2010). The Servicing Tail report 

analyzes various scenarios regarding 

reclamation. In addition, EPA’s memo to 

the docket ‘‘Summary: EPA Analysis of 

U.S. Reclamation Practices and Trends’’ 

provides background on the reclamation 

industry, includes information 

concerning capacity to reclaim greater 

amounts of refrigerants, and for 2010 

projects that more than 20 percent of the 

servicing need can be met by recovering 

HCFC–22 from existing equipment. 


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Recycled and reclaimed HCFCs offset 

the need for newly-manufactured 

HCFCs and after the terminal phaseout, 

as with the CFC phaseout, will become 

the only material available for servicing 

existing equipment. EPA regulations at 

40 CFR part 82 subpart F, promulgated 

under section 608 of the CAA, are 

targeted to reduce the use and emission 

of certain substances including HCFCs 

by maximizing their recapture and 

recycling during the service, 

maintenance, repair, and disposal of 

appliances. These regulations, and 

section 608 of the CAA, prohibit the 

venting or knowing release into the 

environment of HCFCs. The regulations 

require that they be recovered and then 

either recycled, reclaimed, or destroyed. 

Therefore, it is reasonable to assume 

that some amount of recovered HCFCs 

will be available to meet servicing 

needs. In accordance with the chemicalby-chemical phaseout regime adopted 

by the United States, after 2020 only 

recycled, reclaimed, and stockpiled 

HCFC–22 and HCFC–142b will be 

available to service appliances that 

require those substances. EPA’s existing 

regulations at § 82.16 terminate HCFC– 

22 and HCFC–142b production and 

consumption at the end of 2019. The 

very small amount of additional 

production and consumption of HCFCs 

allowed under Article 2F of the 

Montreal Protocol between 2020 and 

2030 for servicing existing appliances 

(0.5 percent of baseline) will only be 

permitted for HCFCs other than HCFC– 

141b, HCFC–22, and HCFC–142b, per 

§ 82.16(e), and will be restricted to 

servicing air-conditioning and 

refrigeration equipment manufactured 

prior to January 1, 2020, per § 82.16(d). 

The Servicing Tail report uses EPA’s 

Vintaging Model to determine the 

quantities of HCFC–22 from existing 

(recycled or reclaimed) sources that can 

meet post-2010 servicing needs with the 

remaining quantities required through 

virgin manufacture (expending 

allowances). For a given year, the 

Vintaging Model assumes that a certain 

percentage, which varies by end use, of 

refrigerants are recovered from 

discarded equipment. The model 

aggregates the quantities recovered but 

does not distinguish the ‘‘pool’’ of 

refrigerant between quantities that are 

reclaimed and those that are recycled. 

For purposes of analysis, the 

Servicing Tail report considers 

scenarios for HCFC–22 where differing 

amounts of refrigerant from 

decommissioned or converted 

appliances were recycled or reclaimed 

and reused for servicing. For example, 

the report examines scenarios in which 

10 percent, 15 percent, 20 percent, 50 

percent, and 75 percent of the total 

amount of HCFC–22 in retired or 

converted equipment is recovered. 

These analyses depict the potential 

ratios of new and recovered HCFC–22 

that could be available during the years 

2010–2019 to meet the overall servicing 

needs, recognizing that the higher 

recovery rates are less likely for the 

earlier control periods. 

Recovery of HCFC refrigerants, with 

subsequent recycling or reclamation, 

will continue to increase over time. 

During the past several years the price 

of newly manufactured HCFC 

refrigerants has increased, creating a 

greater incentive for refrigerant to be 

reused. Recently, EPA has learned that 

many reclaimers are beginning to work 

directly with contactors to provide 

education concerning the benefits of 

refrigerant recovery. Certain reclaimers 

have recently established programs to 

provide incentives for contractors to 

return used refrigerants, including 

avoiding unnecessary mixing of 

refrigerants and thereby increasing the 

amount of refrigerant that can meet 

AHRI Standard 700. Such programs 

should encourage the existing trends of 

increased amounts of recovered 

refrigerants available for reuse. Given its 

previous experience with the class I 

phaseout, EPA believes that over time 

an increasing percentage of HCFCs will 

be recovered for reuse. For example, 

after the 1996 CFC phaseout, motor 

vehicles with CFC–12 air-conditioning 

systems continued to be serviced with 

recovered CFC–12. Recovered CFC 

refrigerants are still in use today for 

servicing a range of older equipment. 

Three commenters disagreed with 

EPA’s assumption that 20% of the total 

amount of HCFC–22 in equipment 

retired or retrofitted beginning in 2010 

can either be recovered or made 

available for reuse. Generally this 

concern centered on the fact that current 

recovery and reclamation rates are not 

20%. One of these commenters stated 

that the current use of reclaimed HCFC– 

22 is closer to seven percent. Though 

not stated in the comment, EPA believes 

this is a reference to data reported to 

EPA under 40 CFR part 82 subpart F 

showing that 4,556 MT of HCFC–22 was 

reclaimed in 2008. This amounts to 

7.3% of the modeled demand in 2010, 

up from 5.9% in 2007. This value, 

though, does not reflect the total 

recovery rate as it excludes the amount 

of recycled refrigerant. EPA does not 

track recycled refrigerants, since 

recycled refrigerant (unlike reclaimed 

refrigerant) must be charged back into 

equipment with the same ownership 

rather than re-enter the market. EPA 

therefore knows that the combined 

amount of recycled and reclaimed 

refrigerants is greater than 7.3%. Two 

commenters provided estimates for the 

combined reclamation and recycling 

rates. One commenter said it is 

currently less than 15% of the modeled 

demand while the other estimated 

approximately 24 million pounds, or 

17%. As described in the proposed rule, 

EPA has both anecdotal and reported 

information concerning recovery rates 

for refrigerants, though it does not have 

figures for recycled refrigerants. 

Furthermore, EPA notes that the amount 

reclaimed in one year does not mean 

that it was recovered in that year. Many 

reclaimers collect more than they 

reclaim in any one year due to market 

shifts. One commenter said that 

reclaimers have many tons of material 

in inventory waiting to be reclaimed 

when the economics of reclamation 

improve, which EPA believes will occur 

through the allocation levels established 

in this rule. EPA is aware that 20% 

recovery and reclamation for 2010 is 

greater than current industry practice 

but has not received comments that 

convince us that the rate is 

unreasonable. 

The third commenter opposed to 

EPA’s 20% recovery assumption was 

not optimistic that reclamation facilities 

currently had sufficient capacity or 

could increase capacity during the next 

few years to meet the demand. However, 

the reclamation companies together 

provided a comment stating that they 

currently have sufficient capacity to 

reclaim 36 million pounds of 

refrigerants each year, which is equal to 

16,329 MT, or 26% of the estimated 

demand in 2010. The main concern of 

the reclaim industry is not reclamation 

capacity but rather the economic 

disincentive to reclaim and poor 

recovery practices. One commenter 

pointed to an expansion in the number 

of distributors offering refrigerant 

recovery services in support of EPA’s 

goal of achieving 20% recovery. 

Multiple commenters suggested 

methods to improve contractor 

participation in the recovery, and 

recycling or reclamation of refrigerant, 

such as certification programs, 

enforcement, educational outreach, and 

training. EPA agrees that such 

approaches could improve contractor 

participation although they are beyond 

the scope of this rulemaking and 

welcomes further discussion with 

stakeholders to improve recovery and 

recycling or reclamation rates in 2010 

and beyond. 

EPA is basing the HCFC–22 allocation 

amounts on the amount EPA has 

estimated is needed, recognizing that 

reclamation and recycling reduce the 


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amount of virgin HCFC–22 that needs to 

be produced to meet that servicing need. 

EPA also continues to believe that an 

allocation at 80% of the estimated 

servicing demand is appropriate for 

2010. Ten commenters stated that EPA’s 

proposal to meet 80% of servicing 

demand through HCFC–22 consumption 

allowances, with the remaining demand 

being met through recovered material, is 

an appropriate approach. Six of these 

commenters stated that reducing the 

available supply of new HCFC–22 will 

create a need, and therefore a market, 

for recovery and reclamation. Four 

commenters stated that EPA should 

issue allowances at more than 80% of 

servicing demand and shared the 

concern that there will be insufficient 

recovered and reclaimed HCFC–22 to 

meet the difference. Three other 

commenters encouraged EPA to issue 

consumption allowances equaling less 

than 80% of HCFC–22 servicing 

demand in 2010. 

EPA believes that if the 2010 

allocation is 80% of the modeled 

demand, the remaining servicing need 

can be met from recycled or reclaimed 

material. Given the regulatory 

requirements for recycling and 

reclamation (at 40 CFR part 82 subpart 

F), experience with the CFC phaseout, 

and industry practices, EPA believes 

that by January 1, 2010, the effective 

date of this rule, the remaining 2010 

servicing need can be met with recycled 

or reclaimed material. The Agency 

believes that 20% of the HCFC–22 in 

equipment that is retired or retrofitted 

each year after 2010 can be recovered 

and reclaimed and that the availability 

of recycled or reclaimed material will 

increase through 2014 as recovery 

practices improve. In 2020, all HCFC–22 

and HCFC–142b used to service airconditioning and refrigerant equipment 

will be supplied by recycled or 

reclaimed refrigerant that has been 

recovered from existing appliances in 

light of the nearly-complete phasedown 

of production and import of virgin 

material in accordance with the CAA 

and the Montreal Protocol. 

Additionally, EPA regulations already 

prohibit the intentional venting of 

refrigerants and require refrigerant 

recovery, and the market for recycled 

and reclaimed refrigerant is predicted to 

grow as the phaseout progresses. As 

discussed below, EPA also believes that 

reducing the allocation each year from 

2010 to 2014 to reflect declining 

demand will lead to higher rates of 

recovery and recycling/reclamation. 

Additional information concerning 

recovery, recycling, and reclamation is 

found in the Servicing Tail report and 

the ‘‘Summary: EPA Analysis of U.S. 

Reclamation Practices and Trends’’ 

report in the docket. 

3. Annual Reduction in Allocated 

Amounts 

EPA’s proposal to allocate 80% of the 

2010 servicing demand for HCFC–22 

(50,000 metric tons) was based on its 

belief that the remaining need could be 

met with refrigerant that was recovered 

and either reclaimed or recycled. Thirty 

three commenters pointed out, though, 

that EPA’s proposal to maintain a 

constant allocation for each control 

period over 2010–2014 did not reflect 

that demand will decrease over that 

time as equipment goes out of service 

and are replaced with appliances using 

alternative refrigerants. Therefore, while 

an allocation of 50,000 MT would equal 

80% of estimated demand in 2010, an 

allocation of 50,000 MT in 2013 and 

2014 would exceed the modeled 

demand for those years (by 1,600 MT in 

2013 and 6,400 MT in 2014). The 

proposed rule took comment on the idea 

of increasing the expected contribution 

of recycled and reclaimed refrigerant for 

each control period by annually 

reducing the allocation of HCFC–22. 

EPA now believes that unless it were to 

reduce the allocations for virgin HCFC– 

22 between 2010 and 2014, there could 

be an oversupply of HCFC–22 and the 

contribution of recycled and reclaimed 

refrigerant would decrease, both in the 

total number of kilograms and as the 

proportion of overall need. 

Commenters expressed the possibility 

that a constant allocation as proposed 

could harm the rates of recovery and 

reclamation. Reclaimers commented 

that they would not be able to compete 

with the less expensive virgin material 

that would exceed the market demand 

in 2013–2014. With no economic 

incentive to reclaim, they claim they 

could be driven to idle their reclamation 

facilities, restarting them in 2015 to 

meet the demand resulting from that 

stepdown. They argue that two years of 

inactivity would weaken their contacts 

with contractors and distributors and 

hamper efforts to instill proper recovery 

practices. EPA is unable to predict the 

precise effect of allowing production 

levels in excess of demand and does not 

believe that all reclaimers will be 

affected in the same way. However, EPA 

does agree that this could harm the 

recovery and reclaim industry at exactly 

the time when rates of recovery and 

reclamation need to be increasing. 

EPA is particularly concerned with 

providing as smooth a transition to the 

2015 stepdown as possible. At that date, 

the U.S. must meet a 90% reduction 

below the baseline for all HCFCs, which 

is equivalent to 1,524 ODP-weighted 

metric tons. EPA’s Servicing Tail report 

shows that even a 20% recovery rate 

would be insufficient to meet the 

demand for HCFC–22 in 2015. As 

shown in Table 4–5 in the report, 

demand for HCFC–22 in 2015 is 

projected to be 38,800 MT while the cap 

for all HCFCs equates to 27,709 MT of 

HCFC–22 (assuming no allocation for 

any other HCFCs). A 20% recovery rate 

would allow for the additional use of 

8,800 MT but would still leave a 

shortfall of 2,291 MT in 2015. EPA 

calculates that to meet the total demand 

in 2015, the recovery rate must increase 

to 26% (representing 29% of total 

servicing demand) by that year. 

Based on the comments, EPA believes 

it is desirable to institute a year-by-year 

reduction for the period of 2010–2014. 

A smooth transition for stakeholders— 

including continued availability of 

needed material for approved uses—has 

historically been an essential aspect of 

the U.S.’s success in implementing the 

Montreal Protocol and Clean Air Act 

requirements. To ease the transition to 

2015 and avoid disruptions to the 

market and shortages in HCFC–22 at 

that date, the Agency believes it is 

necessary to take steps now to foster 

further recovery. 

EPA believes that the servicing 

demand over 2010–2014 can continue to 

be met under the new allocation levels 

in the final rule. Since EPA is not 

banning the use of existing HCFC–22 

appliances that have been manufactured 

prior to January 1, 2010, recovered and 

reclaimed HCFC–22 will become more 

valuable as the phaseout progresses. The 

demand for HCFC–22 to service existing 

equipment will provide an economic 

incentive to increase the quantities of 

recovered HCFC–22 available for 

reclamation. As an indicator of the 

improved economics, several 

reclamation companies have recently 

started offering financial payments for 

recovered HCFC–22. The docket 

provides further information on EPA’s 

assumptions regarding the availability 

of recovered and reclaimed HCFC–22 to 

meet servicing needs. 

Finally, annual reductions to the 

allocation provides clear environmental 

benefits compared to the lead option in 

the proposed rule, assuming the same 

starting point. Over the five-year period 

2010–2014, the proposed rule would 

have allocated 250,000 metric tons of 

HCFC–22. Over the same period, the 

final rule is allocating 203,100 MT of 

HCFC–22, a difference of 46,900 MT, or 

2,574 ODP tons. 

Commenters suggested various 

possible methods for allocating HCFC– 

22 allowances on a declining annual 


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basis. One commenter supported an 

annually declining allocation but did 

not support a total allocation over the 

five-year period less than what EPA 

proposed. EPA believes that such an 

approach would negate many of the 

benefits of annually reducing the 

allocations, including easing the 

transition to the 2015 control period and 

providing an environmental benefit. To 

implement the suggestion, the allocation 

would have to equal demand in 2010, 

which would not create any impetus for 

reclamation in that year, and be 84% of 

demand in 2014. EPA believes that 

meeting 20% of demand with used 

material in 2010 is feasible and that the 

Agency should not wait until 2014 to 

approach that goal. For the same reason, 

EPA also rejects another suggested 

method that would increase the 2010 

allocation from 50,000 MT to 55,000 

MT. The majority of commenters agree 

with EPA’s approach of allocating at 

80% of demand in 2010, with recovered 

and either recycled or reclaimed HCFC– 

22 meeting the remainder. Indeed, other 

commenters agreed with an allocation of 

50,000 MT in 2010 and used that value 

as the starting point for a straight-line 

annual reduction to other 2014 

endpoints. One suggestion was to set 

allocations that decline linearly from 

2010–2014, where the allocation if 

extrapolated to 2015 would equal the 

2015 cap. This results in a yearly 

reduction of 4,458 MT. Another similar 

suggestion rounded up the annual 

reduction to 5,000 MT, which results in 

a line that would be below the cap in 

2015. 

Because the primary benefit of 

annually reducing the allocation is to 

ensure demand in 2015 is met through 

greater recovery and reclamation, EPA 

believes that it is more appropriate to 

base the allocation more directly on that 

goal. In 2015, EPA estimates demand of 

HCFC–22 at 38,800 MT. Were the 

allocations to consist entirely of HCFC– 

22, the cap would limit the 2015 HCFC– 

22 allocation to only 27,709 MT, a 

difference of 11,091 MT that would 

have to be made up with recovered 

material. Furthermore, it is likely that 

the allocation in 2015 will not consist 

entirely of HCFC–22 as EPA will need 

to reserve room under the cap for other 

HCFCs, similar to the approach EPA is 

taking in this rule for the 2010–2014 

control periods. EPA believes it is 

appropriate to establish an annual stepdown such that the amount of total 

demand to be met from recovered 

HCFC–22 will equal 12,500 MT each 

year, as that is the amount EPA 

proposed to be met in 2010 and it is 

approximately the amount that will be 

needed to meet the servicing demand in 

2015. Under this approach, the 

allocations would equal 50,000 MT in 

2010, 45,400 MT in 2011, 40,700 MT in 

2012, 35,900 MT in 2013, and 31,100 

MT in 2014. These values, shown in the 

table below, are derived by subtracting 

12,500 MT from the estimated demand 

each year. EPA will not issue 

allowances for 2015 and beyond until a 

future rulemaking but extends the table 

to 2015 to show the estimated demand 

for that year and the amount of 

recovered material that must be used to 

meet the demand at that date, assuming 

the allocation in 2015 consists entirely 

of HCFC–22 and does not include other 

HCFCs. 

2010 2011 2012 2013 2014 2015 

Estimated Demand (MT) ...................................................................................... 62,500 57,900 53,200 48,400 43,600 38,800 

Total Allocation (MT) ............................................................................................ 50,000 45,400 40,700 35,900 31,100 27,709 

Reclaimed Amount (MT) ............................................................................... 12,500 12,500 12,500 12,500 12,500 11,091 

This annual stepdown lies between 

the two rates suggested by commenters. 

As the total demand decreases, 

maintaining the supply of recovered 

HCFCs at a constant level results in 

recovered material comprising a greater 

proportion of the total demand each 

year. Under this approach, the 

percentage of the total need to be met 

with reclaimed material will rise from 

20% to 29% of total demand in 2014, 

though the total amount of reclaimed 

material supplied remains at 12,500 MT 

for all five years. EPA believes this is 

appropriate as it facilitates meeting the 

demand in 2015, of which at least 29% 

must be met with recovered material. 

Commenters who requested annual 

reductions in the amount of HCFC–22 

allocations did not suggest that EPA 

annually reduce the allocations of 

HCFC–142b. EPA is not reducing the 

allocation of HCFC–142b on an annual 

basis because the Agency does not 

believe that the same rationale would 

apply to HCFC–142b. Most recovered 

HCFC–22 comes from refrigeration and 

air-conditioning appliances. The largest 

single use of HCFC–142b prior to 2010 

was to blow foam and recovery is not 

required from discarded foam. The need 

for recovery is also less, given the small 

amounts of HCFC–142b needed to 

service existing refrigeration equipment 

post-2010. Finally, it is difficult to 

reclaim HCFC–142b from refrigerant 

blends and such recovery is not widely 

practiced. Therefore, EPA is finalizing 

annual reductions only for HCFC–22 

and maintaining the allocations of 

HCFC–142b as proposed. 

C. Allocations of HCFC–22 and HCFC– 

142b 

EPA is revising the two types of tables 

in 40 CFR part 82 that together specify 

the production and consumption 

allowances available to allowance 

holders during specified control 

periods. Tables at § 82.17 and § 82.19 

apportion baseline production 

allowances and baseline consumption 

allowances, respectively, to individual 

companies for individual HCFCs. 

Complementing these tables, the table at 

§ 82.16 lists the percentage of baseline 

allocated to allowance holders for 

specific control periods. By selecting 

option 1, discussed in Section IV.A. of 

the preamble above, EPA is retaining 

this framework of complementary 

tables, revising them to reflect 

adjustments to baselines, and granting 

percentages of baselines in a manner 

that achieves the 2010 phasedown goal. 

The percentages for HCFC–22 and 

HCFC–142b in the table at § 82.16 

(Table 1 below) have changed from the 

proposed rule. In the proposal, the 

allocation for HCFC–22 for 2010 was 

35.2% of baseline. In the final rule, the 

value is 41.9%. Similarly, the percent 

allocation for HCFC–142b for 2010 was 

4.9% of baseline in the proposed rule 

and is 0.47% in the final rule. These 

changes do not reflect a change in the 

allocation amounts, as the total 

allocation for HCFC–22 in 2010 remains 

50,000 MT (the same as the proposal), 

and the total allocation for HCFC–142b 

2010 remains at 100 metric tons (the 

same as the proposal). Instead, these 

changes are due to not changing the 

baselines to reflect inter-pollutant 

transfers occurring on an annual basis 

within a single company. The proposal, 

which treated the intracompany transfer 

of HCFC–142b to HCFC–22 as 

permanent, had a total consumption 

baseline of 141,865 MT. By not 

accounting for those transfers, the 

baseline in the final rule decreased to 

119,285 MT. With a smaller total 


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baseline, the factor that each baseline 

allowance holder must multiply to 

reach the same amount of allowances is 

greater. Thus, 50,000 is equal to 35.2% 

of 141,865 and 41.9% of 119,285. The 

opposite is true for HCFC–142b, which 

had a proportionately smaller baseline 

in the proposed rule but now has a 

larger baseline since EPA is not 

accounting for inter-pollutant transfers. 

EPA is amending the table at § 82.16 

by including control periods 2010–2014, 

by continuing to allocate zero percent to 

HCFC–141b, and by allocating specified 

percentages (in separate columns) to 

HCFC–22, HCFC–142b, and—as will be 

discussed later—other HCFCs. The 

allocations for HCFC–22 decrease on an 

annual basis, rather than remaining 

constant for each of the 2010–2014 

control periods as was proposed. 

TABLE 1—PHASEOUT SCHEDULE FOR CLASS II CONTROLLED SUBSTANCES IN 40 CFR 82.16 

Control period Percent of 

HCFC–141b 

Percent of 

HCFC–22 

Percent of 

HCFC–142b 

Percent of 

HCFC–123 

Percent of 

HCFC–124 

Percent of 

HCFC–225ca 

Percent of 

HCFC–225cb 

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 38 .0 0 .47 125 125 125 125 

2012 ......................... 0 34 .1 0 .47 125 125 125 125 

2013 ......................... 0 30 .1 0 .47 125 125 125 125 

2014 ......................... 0 26 .1 0 .47 125 125 125 125 

EPA is allocating different baseline 

percentages for HCFC–22 and HCFC– 

142b because EPA projects that the 

needs will differ for servicing airconditioning and refrigeration 

appliances during the 2010–2014 

control periods. As discussed in Section 

IV.B.1. of the preamble above, EPA’s 

analysis shows that there will be a 

significantly greater need for HCFC–22 

than for HCFC–142b during the control 

periods 2010–2014. Based on the 

Servicing Tail report and reporting 

information already required by EPA 

regulations, the needs for individual 

HCFCs are not uniform. Allocating the 

same percentage of baseline for HCFC– 

22 and HCFC–142b would result in too 

few allowances for HCFC–22 and too 

many allowances for HCFC–142b. While 

inter-pollutant transfers in accordance 

with § 82.23(b) could be used to trade 

allowances of one HCFC for another, 

EPA does not believe it is appropriate to 

rely on such transfers as a mechanism 

for large-scale corrections. Instead, EPA 

anticipates that the continued 

availability of inter-pollutant transfers 

will permit the market to self-correct for 

unforeseen changes in demand and 

allow individuals to consider a range of 

options for their allowances. EPA seeks 

to avoid unnecessary disruptions in the 

marketplace and to promote a smooth 

transition for industry. 

1. HCFC–22 Allowances for 2010–2014 

For 2010, EPA is allocating HCFC–22 

consumption allowances to meet 80 

percent of the servicing need, assuming 

that the remainder will be met by 

recovered HCFC–22 that is either 

recycled or reclaimed. This translates 

into 50,000 metric tons (2,750 ODPweighted metric tons), or approximately 

72 percent of the total HCFC 

consumption cap for the 2010 control 

period. For the 2011–2014 control 

periods, EPA is annually reducing the 

allocation amount in a linear fashion, 

reflecting the declining servicing 

demand over that time. 

As it did in the 2003 allocation rule, 

EPA is allocating production allowances 

among different chemicals using the 

same percentage breakdown as for 

consumption allowances. This rule 

allocates 46,368 metric tons (2,550 ODP 

tons of the 3,884.25-ODP-ton production 

cap) to HCFC–22 production in 2010, 

with the amount declining in each of 

the control periods from 2010 through 

2014. This is consistent with section 

605(c) of the Clean Air Act, which 

requires that the phaseout schedule for 

HCFC consumption be the same as that 

for HCFC production. EPA recognizes 

that there is a difference between the 

amount of imported and produced 

HCFCs and that the degree of difference 

may vary over time. However, EPA does 

not believe it is necessary to use two 

different chemical-by-chemical 

percentage breakdowns (i.e., one for 

consumption allowances and another 

for production allowances) to ensure 

compliance with the production and 

consumption caps. Therefore, for 

simplicity and for consistency with 

section 605(c), EPA is using the same 

percentages for production and 

consumption allocations—deriving the 

percentages based on estimated need for 

each individual HCFC. 

2. HCFC–142b Allowances for 2010– 

2014 

As discussed in the Servicing Tail 

report, the projected servicing need for 

HCFC–142b is extremely low: 

Approximately 100 metric tons (6.5 

ODP tons) in 2010 and decreasing to 

zero by 2015. Prior to 2010, the primary 

use of HCFC–142b has been to blow 

foam, a use no longer allowed after 

2010. In estimating the need for 2010– 

2014, EPA has considered the amount of 

HCFC–142b produced and imported 

into the United States as reported to 

EPA in recent years under the existing 

requirements. Unlike with HCFC–22, 

EPA has not considered the reclamation 

and recovery rates of HCFC–142b in 

setting the allocation amounts. HCFC– 

142b has primarily been used in foams, 

which is not recovered. The small 

amount of HCFC–142b used in 

refrigeration and air conditioning 

applications is typically used as a 

component of a blend which is more 

difficult to reclaim. Furthermore, these 

blends have not gained any significant 

market share, unlike blends containing 

HCFC–22. Given these factors, the 

limited amount of data available to EPA 

indicates that less than 1 percent of 

HCFC–142b is recycled or reclaimed. 

EPA did not receive any additional data 

in the public comment process that 

would suggest otherwise. 

In light of the limited data available, 

and the extremely low estimate of 

recycling and reclamation, EPA is 

allocating 100 percent of the projected 

HCFC–142b servicing need. Because of 

the lack of data and the small amounts 

being allocated, EPA is maintaining the 


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same allocation level for each of the 

2010–2014 control periods, rather than 

allocating declining amounts as EPA is 

doing for HCFC–22. Therefore, EPA is 

issuing consumption allowances for 

HCFC–142b of 100 metric tons (6.5 ODP 

tons) in 2010–2014. EPA is also 

allocating production allowances for 

HCFC–142b at the same proportion of 

the production cap as was used to 

allocate consumption allowances as a 

proportion of the consumption cap. 

Thus, EPA is allocating production 

allowances for HCFC–142b at 118 

metric tons (7.7 ODP tons). 

3. How the Aggregate for HCFC–22 and 

HCFC–142b Translates Entity-by-Entity 

EPA is allocating 50,000 metric tons 

of HCFC–22 consumption allowances in 

2010 with declining amounts in 2011– 

2014, 46,329 metric tons of HCFC–22 

production allowances in 2010 with 

declining amounts in 2011–2014, 100 

metric tons of HCFC–142b consumption 

allowances, and 118 metric tons of 

HCFC–142b production allowances for 

years 2010–2014. However, EPA 

actually allocates allowances to 

individual persons (i.e., legal entities). 

As discussed in Section IV.A.1 of this 

preamble, EPA is apportioning baselines 

and allocating allowances on a pro-rata 

basis to the entities that received 

baseline allowances in the 2003 

allocation rule. 

Company-specific production and 

consumption baselines (also referred to 

as ‘‘baseline allowances’’) for HCFC– 

141b, HCFC–22, and HCFC–142b are 

listed at §§ 82.17 and 82.19, 

respectively. The percentage of baseline 

each entity receives in each control 

period from 2003 through 2014 appears 

at § 82.16(a), as shown in Table 1 above. 

Allowances allocated for individual 

control periods are called ‘‘calendaryear allowances’’ to distinguish them 

from the baseline production or 

consumption allowances (§ 82.17 and 

§ 82.19). For 2010–2014, EPA is 

apportioning production and 

consumption baselines for HCFC–22, 

HCFC–141b, and HCFC–142b to the 

same entities that were apportioned 

HCFC–22, HCFC–141b, and HCFC–142b 

baselines in the 2003 allocation rule. 

EPA is amending that list of entities and 

their baselines to reflect changes in 

entities’ names as well as mergers and 

acquisitions, but only where EPA has 

been notified of changes in writing 

before or during the comment period for 

this rulemaking. 

Consistent with past practice, EPA is 

publishing baseline allowance 

information in this rule, having first 

notified the affected companies of its 

intention to do so. Applying the 

approach described above, EPA is 

apportioning production and 

consumption baselines for HCFC–141b, 

HCFC–22, and HCFC–142b to the 

following entities in the following 

amounts: 

TABLE 2—BASELINE PRODUCTION ALLOWANCES OF HCFC–22, HCFC–141B, AND HCFC–142B IN 40 CFR 82.17 

Person Controlled substance Allowances (kg) 

Arkema ...................................................................................................................... HCFC–22 ................................................. 28,219,223 

HCFC–141b ............................................. 24,647,925 

HCFC–142b ............................................. 16,131,096 

DuPont ....................................................................................................................... HCFC–22 ................................................. 42,638,049 

Honeywell .................................................................................................................. HCFC–22 ................................................. 37,378,252 

HCFC–141b ............................................. 28,705,200 

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, HCFC–141B, 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 ................................................. 29,524,481 

HCFC–141b ............................................. 25,405,570 

HCFC–142b ............................................. 16,672,675 

Carrier Corporation .................................................................................................... HCFC–22 ................................................. 54,088 

Condor Products ........................................................................................................ HCFC–22 ................................................. 74,843 

Continental Industrial Group ...................................................................................... HCFC–141b ............................................. 20,315 

Coolgas, Inc ............................................................................................................... HCFC–141b ............................................. 16,097,869 

Coolgas Investment Property .................................................................................... HCFC–22 ................................................. 590,737 

Discount Refrigerants ................................................................................................ HCFC–22 ................................................. 375,328 

HCFC–141b ............................................. 994 

DuPont ....................................................................................................................... HCFC–22 ................................................. 38,814,862 

HCFC–141b ............................................. 9,049 

HCFC–142b ............................................. 52,797 

H.G. Refrigeration Supply ......................................................................................... HCFC–22 ................................................. 40,068 

Honeywell .................................................................................................................. HCFC–22 ................................................. 35,392,492 

HCFC–141b ............................................. 20,749,489 

HCFC–142b ............................................. 1,315,819 

ICC Chemical Corp ................................................................................................... HCFC–141b ............................................. 81,225 

Ineos Fluor Americas ................................................................................................ 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 


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TABLE 3—BASELINE CONSUMPTION ALLOWANCES OF HCFC–22, HCFC–141B, AND HCFC–142B IN 40 CFR 82.19— 

Continued 

Person Controlled substance Allowances (kg) 

Saez Distributors ....................................................................................................... HCFC–22 ................................................. 37,936 

Solvay Fluorides ........................................................................................................ HCFC–22 ................................................. 413,509 

HCFC–141b ............................................. 3,940,115 

Solvay Solexis ........................................................................................................... HCFC–142b ............................................. 3,047,386 

Tulstar Products ........................................................................................................ HCFC–141b ............................................. 89,913 

USA Refrigerants ....................................................................................................... HCFC–22 ................................................. 14,865 

D. HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb Allowances 

EPA is establishing and apportioning 

baselines for other HCFCs that have 

been produced or imported in recent 

years by using information on 

production, import, export, and other 

transactions that has been reported to 

the Agency under existing regulations. 

Under the Montreal Protocol, all HCFCs 

are subject to the phaseout cap and EPA 

must report production, import, and 

export data for all HCFCs under Article 

7 of the Protocol. EPA therefore requires 

recordkeeping and reporting for 

production, import, export, and trade of 

all HCFCs, including those for which 

baseline allowances have not yet been 

established. The recordkeeping and 

reporting requirements implement 

section 603 of the Clean Air Act and 

ensure that companies are in 

compliance with regulatory and Clean 

Air Act requirements and that the 

United States is able to document 

compliance with international 

obligations. 

EPA reviewed HCFC production, 

import, and export data for the years 

leading up to the 2003 allocation rule, 

and chose to establish baselines and 

allocate allowances for the highest-ODP 

HCFCs (the ‘‘worst-first’’ approach) in a 

manner that ensured U.S. compliance 

with the 2004 cap (35 percent below the 

U.S. baseline). Prior to the tightening of 

the 2010 HCFC cap at the 19th Meeting 

of the Parties to the Montreal Protocol 

in September 2007 from a 65 percent 

reduction to a 75 percent reduction, 

EPA anticipated that limiting 

production and consumption of HCFC– 

22 and HCFC–142b for the 2010–2014 

control periods would ensure sufficient 

room under the then-effective 65 

percent reduction cap without the need 

to restrict production and consumption 

of other HCFCs. In preparing for the 

19th Meeting of the Parties, EPA 

conducted an analysis, which was 

shared with stakeholders, to ensure that 

the U.S. could consider changes to our 

obligations that were both meaningful 

for ozone layer protection and 

achievable, allowing servicing needs to 

continue to be met. Considering that the 

September 2007 Montreal Adjustment 

provides for adjustment of the cap from 

a 65 percent to a 75 percent reduction, 

EPA is taking additional precautions to 

ensure that the more stringent cap will 

not be exceeded. These precautions 

include establishing and apportioning 

baselines for the 2010–2014 control 

periods for other HCFCs that were 

produced or imported during the 2003– 

2007 control periods. 

1. Baselines for HCFC–123, HCFC–124, 

HCFC–225ca, and HCFC–225cb 

EPA is amending §§ 82.17 and 82.19 

to include company-specific production 

and consumption baselines for HCFC– 

123, HCFC–124, HCFC–225ca, and 

HCFC–225cb. EPA data indicate that 

those four HCFCs were produced, 

imported, or exported during the 2003– 

2007 control periods. 

In the 2003 allocation rule, EPA did 

not issue allowances for all HCFCs, 

noting in part ‘‘that the continuously 

developing HCFC market would be 

hampered by such distribution’’ and 

that the market proportions at that time 

‘‘of these lower-ODP HCFCs do not 

reflect the rapidly expanding market 

and that distributing allowances for 

these HCFCs at [that] time would 

unnecessarily restrict their supply and 

impede transition to less ozonedepleting substances’’ (68 FR 2823). 

Considering the recent adjustments to 

the Montreal Protocol and the evolution 

in the HCFC market, EPA believes it is 

now appropriate to establish a baseline 

and apportion baseline allowances for 

HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb. 

All HCFCs are covered under the 

Montreal Protocol stepwise reductions, 

and EPA must consider all HCFC 

production and import in ensuring that 

the United States continues to meet its 

international obligations. The four 

HCFCs addressed in this section are the 

only remaining HCFCs commonly used 

in the United States that do not 

currently have established baselines. 

Establishing baseline allowances for 

these four HCFCs will not trigger 

additional recordkeeping or reporting 

obligations, since companies that 

produce, import, or export any HCFC 

already report production and 

consumption data to EPA. The impacts 

on future production and consumption 

of these chemicals by individual entities 

stem from the years chosen for 

establishing a baseline, the 

apportionment of the baseline among 

companies, and the percentage of 

baseline allocated for the control years 

2010–2014. EPA discusses these issues 

more specifically below. 

EPA recognizes that many different 

methods and data sources can be used 

to establish baseline allowances. EPA 

proposed to use data reported to the 

Agency under § 82.24 and EPA is using 

that method in this final rule. EPA did 

not receive any comments opposed to 

using existing reported data. EPA also 

said in the proposed rule that it could 

augment the data for completeness or to 

verify accuracy by issuing requests for 

information under section 114 of the 

CAA. EPA did not receive comment 

relating to this process specifically, but 

believes that seeking additional 

information could delay the publication 

of the final rule without providing 

significant additional benefit. 

EPA is making three changes to Table 

5, which are found at 40 CFR 82.17 and 

82.19, as compared to the proposed rule. 

First, EPA is adding Perfect Technology 

Center, LP (doing business as Perfect 

Cycle) to the list of companies being 

allocated baselines for the other HCFCs. 

Perfect Technology Center, LP had 

imported HCFC–123 during the time 

period used to set the baseline but its 

reporting forms—although submitted in 

compliance with EPA regulations—were 

misdirected and the information was 

not included in EPA’s baseline 

calculations. Second, DuPont corrected 

previously reported data, which has the 

effect of adjusting DuPont’s HCFC–123 

baseline from 2,933,906 kg to 1,877,042 

kg. Third, Honeywell had corrected 

previous HCFC–124 production data but 

EPA did not reflect that change in the 

proposed rule. EPA is reflecting that 

correction now by changing 

Honeywell’s HCFC–124 production 

baseline from 1,804,121 kg to 1,759,681 


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kg. These changes do not affect the 

baselines or the allocation amounts for 

the other companies receiving HCFC– 

123 or HCFC–124 allowances. 

In the 2003 allocation rule, EPA 

calculated each entity’s HCFC–141b, 

HCFC–22, and HCFC–142b baselines 

from that entity’s highest reported 

consumption and production over the 

years 1994–1997. EPA chose that 

particular range of years because 

beginning in 1998, some entities were 

aware of the impending rulemaking and 

could have increased production or 

import in an effort to secure higher 

baseline allowances. EPA stated in the 

2003 allocation rulemaking that ‘‘by not 

selecting a year after 1997 it will avoid 

creating an uneven playing field that 

skews allocations to those companies 

with ample resources and good access to 

information’’ (68 FR 2832). EPA did 

propose and finalize an exception to the 

general approach by allowing new 

entrants that began importing after the 

end of 1997 but before April 5, 1999, the 

date of the ANPRM publication. EPA 

believed that such new entrants, 

typically small businesses, might not 

have been aware of the impending 

rulemaking that would affect their 

ability to continue in the HCFC market. 

EPA is using the same general 

approach for these four HCFCs as in the 

2003 allocation rule by considering the 

highest reported data from a range of 

years rather than selecting a single 

baseline year. However, EPA is not 

providing an exemption for new 

entrants. EPA did not receive any 

comments requesting a new entrant 

provision for these four HCFCs and does 

not believe that one is necessary as 

these baseline years reflect participants 

in the market in 2005–2007 and thus 

take into account relatively new 

entrants. As in the 2003 allocation rule, 

EPA is choosing a range of years 

because the entities receiving 

allowances have very different 

production and import histories and no 

one year is representative for all 

companies. EPA believes that selecting 

the year of highest activity for 

individual companies over a range of 

years creates less of a disadvantage to 

the industry and the HCFC market as a 

whole than selecting a single year. 

Therefore, in this final rule, EPA is 

using an entity’s highest reported 

consumption and production data 

reported for the 2005–2007 control 

periods. By using past years, EPA avoids 

any ramp-up in the level of production 

and consumption resulting from a desire 

to maximize individual baselines in 

anticipation of the final rule. By using 

recent data, EPA ensures that the 

baseline reflects the current market as 

closely as possible, and addresses issues 

raised when EPA decided to postpone 

allocating baseline allowances for these 

HCFCs in 2003. 

Four commenters generally agreed 

with the proposal to establish baselines 

for HCFC–123, HCFC–124, HCFC– 

225ca, and HCFC–225cb, 

acknowledging that a baseline for these 

chemicals will help ensure the United 

States meets its Montreal Protocol 

obligations and that the method used to 

establish a baseline was successfully 

utilized for HCFC–141b, HCFC–142b 

and HCFC–22. EPA did not receive any 

comments in opposition to establishing 

baselines for these HCFCs. 

Two commenters disagree with EPA’s 

proposal to establish the HCFC–123 

baseline as a company’s highest-year 

production and consumption between 

2005 and 2007. One of those 

commenters stated a belief that the 

market for chillers using HCFC–123 has 

been steadily declining over the last 

several years and suggested that EPA 

instead select the lowest reported data 

from 2005–2007 to set the HCFC–123 

baseline. The other commenter urged 

EPA to calculate the baseline using 

calendar year 2008 data, which it said 

better reflects the market. EPA disagrees 

with these alternative methods for 

establishing the baseline for HCFC–123. 

EPA does not support choosing the 

lowest year’s reported data because EPA 

is not seeking to actively restrict the 

market for HCFC–123 in this rule. EPA 

does not wish to prejudge the market for 

HCFC–123, be it increasing or 

decreasing. EPA also does not believe 

that selecting the 2008 year is 

appropriate because EPA’s experience 

has been that a single year’s data may 

actually not be reflective of the market, 

even if the date is closer to the present. 

For example, the economic conditions 

in 2008 may have affected production 

for that year in a way that is not 

reflective of the market in 2010 and 

beyond. Also, as mentioned above, the 

entities receiving allowances have very 

different production and import 

histories and no one year is 

representative for all companies. For 

these reasons, EPA is establishing the 

HCFC–123 production and consumption 

baselines based on an entity’s highest 

reported consumption and production 

for the 2005–2007 control periods. 

EPA is apportioning production and 

consumption baselines for HCFC–123, 

HCFC–124, HCFC–225ca, and HCFC– 

225cb to the following entities for the 

following amounts, which are found in 

40 CFR 82.17 and 82.19: 

TABLE 4—BASELINE PRODUCTION ALLOWANCES OF HCFC–123, HCFC–124, HCFC–225CA, AND HCFC–225CB IN 40 

CFR 82.17 

Person Controlled substance Allowances (kg) 

AGC Chemicals Americas ......................................................................................... HCFC–225ca ........................................... 266,608 

HCFC–225cb ........................................... 373,952 

DuPont ....................................................................................................................... HCFC–124 ............................................... 2,269,210 

Honeywell .................................................................................................................. HCFC–124 ............................................... 1,759,681 

TABLE 5—BASELINE CONSUMPTION ALLOWANCES OF HCFC–123, HCFC–124, HCFC–225CA, AND HCFC–225CB IN 40 

CFR 82.19 

Person Controlled substance Allowances (kg) 

AGC Chemicals Americas ......................................................................................... HCFC–225ca ........................................... 285,328 

HCFC–225cb ........................................... 286,832 

Arkema ...................................................................................................................... HCFC–124 ............................................... 3,719 

Condor Products ........................................................................................................ HCFC–124 ............................................... 3,746 

Coolgas, Inc. .............................................................................................................. HCFC–123 ............................................... 20,000 

DuPont ....................................................................................................................... HCFC–123 ............................................... 1,877,042 

HCFC–124 ............................................... 743,312 

Honeywell .................................................................................................................. HCFC–124 ............................................... 1,284,265 


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TABLE 5—BASELINE CONSUMPTION ALLOWANCES OF HCFC–123, HCFC–124, HCFC–225CA, AND HCFC–225CB IN 40 

CFR 82.19—Continued 

Person Controlled substance Allowances (kg) 

ICOR .......................................................................................................................... HCFC–124 ............................................... 81,220 

National Refrigerants ................................................................................................. HCFC–123 ............................................... 72,600 

HCFC–124 ............................................... 50,380 

Perfect Technology Center, LP ................................................................................. HCFC–123 ............................................... 9,100 

Tulstar Products ........................................................................................................ HCFC–123 ............................................... 34,800 

HCFC–124 ............................................... 229,582 

2. Allocation Levels for HCFC–123, 

HCFC–124, HCFC–225ca, and HCFC– 

225cb 

As proposed, EPA is allocating 125 

percent of the baseline production and 

consumption allowances for HCFC–123, 

HCFC–124, HCFC–225ca, and HCFC– 

225cb for the 2010–2014 control 

periods. These allocations appear as 

additions to the table at § 82.16, shown 

in Table 1 above. EPA’s intent in 

establishing baseline production and 

consumption allowances for these 

HCFCs is to create a mechanism for 

limiting growth in the production and 

consumption of these HCFCs during 

those control periods. EPA has heard 

from stakeholders that some amount of 

market expansion for these low-ODP 

HCFCs is possible during the 2010–2014 

control periods. Unlike HCFC–22 and 

HCFC–142b, which are subject to use 

restrictions beginning January 1, 2010, 

these four low-ODP HCFCs are not 

subject to use restrictions until a later 

date. Given the low ODPs for these 

HCFCs, allocating 125 percent of the 

baseline for 2010–2014 allows for 

growth but still ensures that the United 

States meets the overall HCFC cap of 75 

percent below the baseline during these 

control periods. 

Any growth in the non-prohibited use 

of these HCFCs will be balanced to some 

extent by the 605(a) self-effectuating 

restrictions on most uses of HCFCs. 

Regardless of any action by EPA, usage 

of these HCFCs will be constrained, and 

in some instances prohibited, in 2015. 

For example, HCFC–225ca and HCFC– 

225cb are generally used as solvents but 

as of January 1, 2015, under section 

605(a), HCFCs may not be used in 

solvents. Refrigerant uses for other 

HCFCs may continue until 2020. For 

example, while newly manufactured 

HCFC–22 cannot be produced or 

imported for charging into new airconditioning and refrigeration 

appliances as of January 1, 2010 (40 CFR 

82.16(c)), HCFC–123 can be produced or 

imported for new appliances until 2020 

(40 CFR 82.16(d)). However, HCFC–123 

is a transitional alternative for CFC–11 

and is still scheduled for phaseout in 

2015 except in equipment manufactured 

before 2020. Because of the section 

605(a) use ban, EPA anticipates that any 

continued growth for these HCFCs will 

be considerably affected as of January 1, 

2015. The section 605(a) use provisions 

are discussed in more detail below at 

Section VI of the preamble. 

Through this action, EPA is allocating 

allowances equaling 125 percent of the 

baseline for HCFC–123, HCFC–124, 

HCFC–225ca, and HCFC–225cb for the 

2010–2014 control periods. If rapid 

growth were to occur, creating the need 

for additional amounts of one or more 

of these HCFCs, EPA believes that interpollutant transfers could be used to 

make adjustments. EPA has calculated 

that 125 percent of the highest year’s 

consumption of HCFC–123, HCFC–124, 

HCFC–225ca, and HCFC–225cb for all 

the companies combined equals 137 

ODP-weighted metric tons, which is less 

than 4 percent of the total HCFC 

consumption cap of 3,810 ODP tons. 

EPA data also show that 125 percent of 

the highest year’s production of HCFC– 

123, HCFC–124, HCFC–225ca, and 

HCFC–225cb for all the companies 

combined equals 135 ODP-weighted 

metric tons, which is less than 4 percent 

of the total HCFC production cap of 

3,884.25 ODP tons. 

In general, commenters, including 

those who use these other HCFCs, 

supported the proposed allocation 

amounts. The only comments 

disagreeing with the proposed 

allocation amounts were with respect to 

HCFC–123. Two commenters objected 

to an allocation of 125% of baseline for 

HCFC–123, claiming that this would 

artificially increase demand. These 

commenters proposed that EPA use a 

lower allocation amount, such as 80% 

of baseline. Another commenter stated 

that EPA should encourage the 

transition to non-ozone-depleting 

substances by accelerating the phaseout 

of HCFC–123 and reducing the 

allocation amounts on an annual basis. 

First, EPA disagrees that allocating more 

than 100% of baseline for HCFC–123 

will artificially increase demand for this 

compound. Currently, there is no limit 

on HCFC–123 production or 

consumption. EPA does not believe that 

placing such a limit in this rule would 

artificially increase demand for this 

compound. As discussed above, EPA 

chose more than 100% to allow for 

normal growth in the market, not to 

impose any constraints or confer any 

benefits on the market. If the full 

amount of allowances is not needed, 

then EPA expects that the excess 

allowances may go unused or be 

transferred for other HCFCs. Second, 

under current domestic regulations, 

HCFC–123 can be produced or imported 

for new appliances until 2020 (40 CFR 

82.16(d)). Third, EPA does not believe 

that the continued use of HCFC–123 at 

this point will threaten U.S. compliance 

with the overall HCFC cap. Therefore, 

the Agency disagrees that it is necessary 

to accelerate that schedule in this rule. 

Some commenters also questioned 

EPA’s analysis of the HCFC–123 market 

in the Servicing Tail report. They stated 

that the 3 million kilogram allocation to 

HCFC–123 surpasses their own estimate 

of needs. While EPA did not use a 

straight needs-based analysis for 

allocating HCFC–123, EPA did review 

the HCFC–123 needs analysis in the 

June 2008 Servicing Tail report and 

found that the source data used to 

project needs were not the same as those 

used to establish the allocation of 

HCFC–123. EPA has issued a final 

version of the Servicing Tail report 

(accessible in the docket to this action 

and at http://www.epa.gov/ozone). In 

any case, EPA has not chosen to allocate 

HCFC–123, HCFC–124, HCFC–225ca, or 

HCFC–225cb at the estimated need as 

shown in the Servicing Tail report. 

Instead, to allow for market growth as 

previously discussed, EPA is setting 

allocation baselines in the same manner 

for all four of these low-ODP HCFCs. 

Namely, EPA is setting each company’s 

baseline at the highest consumption or 

production in the years 2005–2007, and 

allocating 125% of those baselines to 

avoid interfering with the existing 

market. 

In accordance with the Montreal 

Protocol, EPA will issue a rule prior to 

the 2015 HCFC milestone to limit 

aggregate production and consumption 


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of all HCFCs to no more than 10 percent 

of the U.S. baselines for production and 

consumption. At that time, EPA plans to 

consider the appropriate level of 

allowances for 2015 and beyond based 

on market demand and the section 

605(a) restrictions on introduction into 

interstate commerce and use discussed 

later in this preamble. Examples of uses 

that will be prohibited by section 605(a) 

beginning in 2015 are solvents, 

sterilants, and fire suppression uses. 

EPA anticipates other changes as well. 

For example, EPA’s allowance level for 

HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb does not assume a 

specified level of recycling and 

reclamation. For HCFCs used in nonrefrigeration applications, such as 

solvents (e.g., HCFC–225ca and HCFC– 

225cb), the section 608 prohibition on 

venting is not applicable. EPA received 

comment that it should consider 

recovery and recycling or reclamation of 

HCFC–123 in this rule when 

establishing production and 

consumption allowances. HCFC–123 is 

used in chillers that in some cases are 

replacing CFC chillers. Given that in 

many cases these appliances have 

expected lifespans of more than 20 

years, it will be some time before 

significant amounts of HCFC–123 are 

recovered and recycled or reclaimed. In 

future rulemakings, however, EPA may 

estimate the amount of the total need for 

HCFC–123 that can be met through 

recycling and reclamation. As the 

HCFC–123 market matures, the 

refrigerant recovery, recycling, and 

reclamation requirements in 40 CFR 

part 82 subpart F will result in a greater 

amount of reusable HCFC–123. 

E. Other HCFCs 

As a result of EPA’s allocation 

process, which is largely based on 

projected 2010–2014 need for HCFC–22 

and HCFC–142b, minus an amount of 

HCFC–22 that is assumed to be recycled 

or reclaimed, the total allocation is 

lower than the aggregate HCFC cap. EPA 

recognizes that there could be some 

additional need for HCFCs not 

specifically included in this rule. While 

some niche applications in the U.S. use 

other HCFCs, such as HCFC–21, EPA is 

not aware of additional need for 

production or import of these 

substances at this time, as adequate 

amounts appear to be in inventory. 

However, EPA is not foreclosing the 

possibility of additional production or 

import for these niche uses. Also, some 

amount of HCFC–141b will likely 

continue to be produced or imported via 

the petition process during the 2010– 

2014 control periods. EPA believes that 

there is sufficient room under the cap 

for such continued production and 

import. The current regulations at 40 

CFR 82.15 ban the production and 

import of class II substances for which 

EPA has apportioned baseline 

production and consumption 

allowances in excess of allowances held 

by the producer or importer, but do not 

ban the production and import of class 

II substances for which EPA has not 

apportioned baseline production and 

consumption allowances. This rule does 

not alter the current regulations in that 

respect. The producer or importer of an 

HCFC that is not subject to the 

allowance system would be required to 

report to EPA consistent with the 

existing recordkeeping and reporting 

requirements. If necessary, EPA could 

amend the regulations to set and 

apportion baselines and issue 

allowances for these HCFCs. Therefore, 

retaining room under the cap provides 

the benefit of accounting for 

unanticipated growth in HCFCs that do 

not have allocations or other unforeseen 

events. However, those reasons are not 

why EPA is reserving room under the 

cap. Instead, it is the result of EPA’s 

bottom-up approach of allocating 

allowances for HCFC–22 and HCFC– 

142b according to the modeled demand 

for virgin and reclaimed material. 

EPA received two comments that 

reserving 22% of the total HCFC cap for 

‘‘other’’ HCFCs is too excessive, given 

that HCFC–22 will have the greatest 

servicing needs and projected shortages. 

EPA agrees that the greatest need for all 

HCFC in the future will be for servicing 

existing HCFC–22 equipment. However, 

as discussed in Section VI.B.1., EPA 

carefully analyzed such needs through 

multiple iterations of its Servicing Tail 

report to determine an allocation of 

HCFC–22 necessary to avoid shortages. 

EPA believes that it is appropriate to 

allocate HCFC–22 based on demand 

(and considering the role of 

reclamation) because this will help the 

transition to the 2015 phase-down step, 

when the cap is reduced from 25% to 

10% of baseline. While EPA is not 

‘‘reserving’’ room under the cap for 

these other HCFCs, the effect of 

allocating allowances based on need is 

additional room under the aggregate 

HCFC cap for any HCFCs that EPA has 

not specifically included in §§ 82.16, 

82.18, and 82.19. 

One commenter encouraged EPA to 

retire the remaining allowances that 

have not been allocated under this 

rulemaking. This commenter was 

concerned that if EPA maintained a 

reserve, the market will look to the 

Agency to allocate additional HCFC–22 

allowances in the future instead of 

seriously pursuing recovery and 

reclamation. EPA disagrees that the 

unallocated room under that cap 

constitutes a set of allowances that can 

be ‘‘retired’’; it simply represents the 

differential between the cap and the 

amount of allowances allocated. As 

stated earlier, room under the cap 

provides for potential market 

penetration of other HCFCs that do not 

have allocations. Furthermore, the 

Agency is not maintaining a ‘‘reserve’’ 

to be allocated at a future time but 

rather is maintaining an accounting of 

the total U.S. HCFC production and 

consumption to ensure compliance with 

the HCFC cap. EPA does not intend to 

allocate the extra amount under the cap, 

except under unforeseen extenuating 

circumstances, because it is important 

to promote greater use of recycled and 

reclaimed material in anticipation of the 

next phasedown step. 

V. Article 5 Allowances 

Under the Montreal Protocol, 

industrialized countries and developing 

countries have different schedules for 

phasing out ODS production and 

consumption. Developing countries 

operating under Article 5, paragraph 1 

of the Montreal Protocol in most cases 

have additional time in which to phase 

out ODS. Recognizing that it would be 

inadvisable for developing countries to 

spend resources to build new ODS 

manufacturing facilities to meet basic 

domestic needs for chemicals they 

would ultimately phase out, the Parties 

to the Montreal Protocol decided to 

permit a small amount of production in 

industrialized countries, in addition to 

the amounts otherwise permitted for 

such countries under the relevant 

phaseout schedules, for export to meet 

the basic domestic needs of developing 

countries. As discussed above, at the 

19th Meeting of the Parties (MOP) to the 

Montreal Protocol held in September 

2007, the Parties agreed to a revised 

phaseout schedule for both Article 5 

and non-Article 5 Parties. Included with 

the changes to the phaseout schedule 

were changes to the amount of 

production in industrialized countries 

that would be permitted to meet the 

basic domestic needs of Article 5 

Parties. These changes were in keeping 

with the more stringent phaseout 

schedule for developing countries. 

Previously, the Montreal Protocol had 

allowed non-Article 5 countries to 

produce at 15 percent of their baseline 

levels for export to Article 5 countries 

from 2016, the year in which Article 5 

countries were required to freeze 

consumption, through the terminal 

phaseout in 2040. At the 19th MOP the 

Parties agreed that to satisfy basic 

domestic needs of Article 5 countries, 


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7The petition process for HCFC–141b exemption 

allowances at 82.16(h) would sunset in 2015, since 

HCFC–141b is not used as a refrigerant and thus 

does not meet the criteria established by 605(a) for 

an exception from the statutory ban on use. EPA 

intends to revise § 82.16(h) when it addresses the 

control periods 2015–2019. 

non-Article 5 Parties would be allowed 

to produce up to 10 percent of baseline 

levels until 2020. For the period after 

2020, the Parties agreed to consider 

further reduction of the production for 

basic domestic needs no later than 2015 

(UNEP/Ozl.Pro.19/7 Decision XIX/6: 

Adjustments to the Montreal Protocol 

with regard to Annex C, Group I, 

substances (hydrochlorofluorocarbons)). 

Section 605(d)(2) of the Clean Air Act 

states that notwithstanding the 

restrictions on production, use, and 

introduction into interstate commerce 

set forth in paragraphs (a) and (b) of that 

section, EPA ‘‘may authorize the 

production of limited quantities of a 

class II substance in excess of the 

quantities otherwise permitted under 

such provisions solely for export to and 

use in developing countries that are 

Parties to the Montreal Protocol, as 

determined by the Administrator’’ (42 

U.S.C. 7671d(d)(2)). EPA’s 

implementing regulation at 40 CFR 

82.18(a) provides for the allocation of 

‘‘Article 5 allowances’’ for production of 

specified HCFCs solely for export to 

Article 5 Parties to meet those countries’ 

basic domestic needs. Currently under 

§ 82.18(a) an entity that is apportioned 

baseline HCFC production allowances 

receives an amount of Article 5 

allowances equal to 15 percent of that 

production baseline. The Article 5 

Parties are listed at 40 CFR part 82, 

subpart A, appendix C, annex 4. In the 

proposed rule, EPA cited Appendix E of 

the same subpart which contained a less 

current list of Article 5 Parties than the 

one at Appendix C, Annex 4. In this 

final rule, EPA is updating both 

appendices to accurately reflect 

decisions taken to date under the 

Montreal Protocol regarding the 

developing country status of particular 

Parties. 

EPA is amending § 82.18(a) to reflect 

the adjustment to the Montreal Protocol 

at the 19th MOP and to ensure that the 

United States does not permit a level of 

production to meet basic domestic 

needs in Article 5 Parties that exceeds 

the level specified in the adjustments. 

EPA is taking this action in accordance 

with section 606(a)(3) of the Clean Air 

Act. EPA also is making minor changes 

to § 82.15(c) to clarify that HCFCs 

produced with Article 5 allowances may 

be introduced into interstate commerce 

if destined for export. 

Prior to this final rule, § 82.18(a)(1) 

stated that a person apportioned 

baseline production allowances for 

specified HCFCs is also apportioned 

Article 5 allowances for the specified 

HCFCs equal to the following 

percentages of that person’s baseline: 

For controls periods through 2014, 15 

percent; for controls periods from 2015 

through 2029, 10 percent; and for 

control periods from 2030 through 2039, 

15 percent. While the Montreal Protocol 

previously permitted production for the 

basic domestic needs of Article 5 

countries equal to 15 percent of the U.S. 

production baseline for each control 

period until 2040, section 605(d)(2)(B) 

of the Clean Air Act requires that for the 

period between 2015 and 2030 the 

production for Article 5 countries be 

limited to 10 percent of baseline. Thus, 

EPA regulations at § 82.18(a) prior to 

this rule restricted Article 5 allowances 

to 10 percent of production baseline 

from January 1, 2015, through December 

31, 2029, but otherwise allowed the full 

15 percent previously permitted by the 

Protocol. 

In this final rule, EPA is adopting the 

approach in the proposed rule by 

amending § 82.18(a) to allocate Article 5 

allowances for HCFC–22, HCFC–142b, 

and HCFC–141b at 10 percent of a 

person’s baseline, for the period 2010– 

2019, with no Article 5 allowances 

beyond 2019, consistent with the recent 

changes to the Montreal Protocol. Prior 

to 2015, production for export to Article 

5 Parties of HCFC–123, HCFC–124, 

HCFC–225ca, or HCFC–225cb would 

not require expending Article 5 

allowances. 

Given that Article 2F of the Montreal 

Protocol, as adjusted in September 2007, 

does not provide for additional HCFC 

production to meet the basic domestic 

needs of Article 5 Parties past 2019, 

EPA is discontinuing the Article 5 

allowance provision for all HCFCs at the 

end of 2019 in the absence of further 

adjustments to the Protocol. If the 

Parties were to adjust the basic domestic 

needs provisions of the Protocol to 

permit continued production for such 

needs past 2019, EPA would evaluate 

that adjustment and consider issuing a 

regulation to extend the availability of 

Article 5 allowances for basic domestic 

needs to the extent consistent with the 

Clean Air Act. Any such regulation 

would include production levels and 

schedules that were at least as stringent 

as those specified in the Montreal 

Protocol, as adjusted. 

EPA did not receive adverse 

comments regarding the revisions to 

§ 82.18(a). 

VI. Accelerated Use Restrictions Under 

CAA Section 605 

In addition to allocating HCFC 

allowances, this rulemaking completes 

the implementation of section 605 of the 

Clean Air Act. Section 605(a) of the 

Clean Air Act is a self-effectuating ban 

on both the introduction into interstate 

commerce and use of class II substances. 

Section 605(a) reads: 

‘‘Effective January 1, 2015, it shall be 

unlawful for any person to introduce 

into interstate commerce or use any 

class II substance unless such 

substance— 

(1) Has been used, recovered, and 

recycled; 

(2) Is used and entirely consumed 

(except for trace quantities) in the 

production of other chemicals; or 

(3) Is used as a refrigerant in 

appliances manufactured prior to 

January 1, 2020. 

As used in this subsection, the term 

‘refrigerant’ means any class II 

substance used for heat transfer in a 

refrigerating system.’’ 

Although section 605(a) is effective by 

its own terms, Congress directed EPA in 

section 605(c) to promulgate regulations 

restricting the use of class II substances 

in accordance with section 605. In this 

action, EPA is adding regulatory 

language to reflect the section 605 

provisions on introduction into 

interstate commerce and use of class II 

substances. 

The provisions governing HCFC–22 

and HCFC–142b promulgated as part of 

the 1993 phaseout rule were intended 

‘‘to prohibit the use of the chemicals 

(virgin material only) for any use except 

as a feedstock or as a refrigerant in 

existing equipment as of January 1, 

2010’’ (58 FR 15028). As promulgated, 

however, the regulatory prohibitions did 

not control use directly, but instead 

banned production and import for most 

uses. Through this action, EPA is adding 

the direct use prohibitions 

contemplated in the 1993 phaseout rule 

as well as the corresponding 

prohibitions on introduction into 

interstate commerce contained in 

section 605(a). Consistent with the 

accelerated schedule adopted in the 

1993 phaseout rule, the section 605(a) 

restrictions on use and introduction into 

interstate commerce apply to HCFC–22 

and HCFC–142b beginning in 2010 and 

to all other HCFCs beginning in 2015.7

The section 605(a) restrictions for 2010 

also apply to blends containing HCFC– 

22 or HCFC–142b. The restrictions on 

production and import, both in general 

and for particular uses, that were 

promulgated in 1993 are at 40 CFR 

82.16(b) through (g). EPA is not 

changing these provisions in this action. 

However, EPA is further implementing 


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8As discussed earlier in this action, there is an 

additional exception for production to meet the 

basic domestic needs of Article 5 countries, 

consistent with section 605(d). 

9Listed here with both the trade name and 

ASHRAE number where available, they include, but 

are not limited to the following: MP–39 (R–401A), 

MP–66 (R–401B), MP–52 (R–401C), GHG (R–406A), 

FX–56 (R–409A), Hot Shot (R–414B), GHG–X4 (R– 

414A), Choice Refrigerant (R–420A), Freeze 12, Free 

Zone, GHG–HP, GHG–X5, HP–80 (R–402A), HP–81 

(R–402B), FX–10 (R–408A), R–411A, R–411B, 

G2018C, R–403B, NARM–502. 

section 605(a) by codifying a restriction 

at § 82.15 on introduction into interstate 

commerce and use and by clarifying its 

interpretation of the statutory 

requirements. Limited exceptions to the 

restrictions on the introduction into 

interstate commerce and use are 

discussed in detail in Section VI.D. 

The existing regulatory provisions at 

§ 82.16(c) prohibit the production or 

import of HCFC–22 and HCFC–142b in 

2010 and beyond for purposes that are 

not exempted in that section, consistent 

with section 605(a).8 In this action EPA 

is amending § 82.15 to add prohibitions 

that specifically preclude any person 

from introducing into interstate 

commerce or using (according to the 

interpretations below) any HCFCs for 

purposes that are not consistent with 

section 605. EPA believes that this is 

appropriate because section 605(a) 

specifically bans use and introduction 

into interstate commerce. Under the 

current regulatory structure the 

prohibitions apply to the production 

and import of the HCFC compounds as 

bulk chemicals. The new provisions 

promulgated in this action restrict uses 

of bulk chemicals, and thus apply to use 

of HCFCs by manufacturers of 

appliances and other products 

containing HCFCs, as well as use of 

HCFCs by anyone who services such 

products. 

The provisions relating to 

introduction into interstate commerce 

and use also apply to blends containing 

HCFC–22 or HCFC–142b.9 Bulk gases 

include both neat HCFC–22 (or HCFC– 

142b) and blends containing HCFC–22 

(or HCFC–142b). Blends of refrigerants 

are substances, not products, and thus 

are subject to the restrictions that apply 

to non-blended substances. 

This action also revises the 

regulations on export production 

allowances at 40 CFR 82.18(b) to ensure 

consistency with section 605(a). Export 

production allowances allow an HCFC 

that is subject to a domestic phaseout to 

be produced for export to Parties that 

continue to allow imports of that 

substance. Prior to this rulemaking, 

entities holding baseline production 

allowances for HCFC–141b were 

allocated export production allowances 

equal to 100 percent of their baseline 

production allowances until December 

31, 2029. To avoid a conflict with the 

section 605(a) restrictions on use and 

introduction into interstate commerce, 

EPA is discontinuing this provision on 

December 31, 2009. Under the 

definition finalized in this rule, 

‘‘introduction into interstate commerce’’ 

includes release of HCFCs by the 

domestic manufacturer for distribution 

and transport prior to export. HCFC– 

141b is not used as a refrigerant and has 

not been used in transformation 

processes; therefore, the current export 

production allowances would have no 

remaining purpose with the 

implementation of the 605(a) use ban. 

EPA is not allocating export production 

allowances for any other HCFCs; 

however, as discussed in Section V, 

EPA is allocating Article 5 allowances 

for meeting the basic domestic needs of 

developing countries. EPA received no 

negative comments on the 

discontinuation of export production 

allowances. 

A. Definition of ‘‘Introduction Into 

Interstate Commerce’’ 

Since the promulgation of the 2003 

allocation rule, EPA has received 

questions from stakeholders regarding 

the Agency’s interpretation of section 

605(a). Based on these questions, EPA 

has included in this final rule a 

discussion of how it interprets that 

section, particularly the terms 

‘‘introduction into interstate commerce’’ 

and ‘‘use.’’ This action promulgates a 

definition of interstate commerce to 

facilitate the implementation of section 

605(a). 

Section 605(a) states that ‘‘it shall be 

unlawful for any person to introduce 

into interstate commerce * * * any 

class II substance’’ unless certain 

exceptions apply. Section 611 (Labeling) 

contains a similar phrase, noting that 

certain products shall not be 

‘‘introduced into interstate commerce’’ 

unless the product bears a clearly 

legible and conspicuous warning label. 

EPA’s definition of interstate commerce 

for section 611 purposes appears at 40 

CFR 82.104(n): 

Interstate commerce means the 

distribution or transportation of any 

product between one state, territory, 

possession or the District of Columbia, 

and another state, territory, possession 

or the District of Columbia, or the sale, 

use or manufacture of any product in 

more than one state, territory, 

possession or District of Columbia. The 

entry points for which a product is 

introduced into interstate commerce are 

the release of a product from the facility 

in which the product was 

manufactured, the entry into a 

warehouse from which the domestic 

manufacturer releases the product for 

sale or distribution, and at the site of 

United States customs clearance. 

After considering this regulatory 

definition, and noting the similarities in 

the statutory language, EPA is amending 

§ 82.3 to include a definition of 

‘‘interstate commerce’’ that is identical 

to the definition at § 82.104(n), except 

that the phrase ‘‘controlled substance’’ 

appears where the § 82.104(n) definition 

uses the term ‘‘product.’’ This is because 

section 605(a) addresses bulk substances 

rather than products. Adding a 

definition of interstate commerce to 

§ 82.3 clarifies the applicability of the 

section 605(a) provisions. Using a 

definition that is already wellestablished in the labeling program 

minimizes stakeholder confusion. 

Under this definition, ‘‘introduction 

into interstate commerce’’ includes 

release of HCFCs by the domestic 

manufacturer of those HCFCs for 

distribution and transport prior to 

export. The section 605(a) ban thus has 

relevance to the export of HCFCs— 

limiting exports to HCFCs that are 

‘‘used, recovered, and recycled’’ (section 

605(a)(1)); HCFCs that are destined for 

transformation (section 605(a)(2)); 

HCFCs that will be used as a refrigerant 

in appliances manufactured before the 

date specified in the regulations (section 

605(a)(3)); and HCFCs that will be 

exported to Article 5 Parties (section 

605(d)(2)). As a result, HCFC exports to 

non-Article 5 Parties are limited as of 

January 1, 2010, for HCFC–22 and 

HCFC–142b (and blends containing 

those compounds) and January 1, 2015, 

for HCFC–123, HCFC–124, HCFC– 

225ca, and HCFC–225cb (and blends 

containing those compounds). 

One commenter expressed concern 

about its ability to export HCFC–22, 

HCFC–142b, and blends thereof 

beginning January 1, 2010, and HCFC– 

123, HCFC–124, and blends thereof 

beginning January 1, 2015, to nonArticle 5 countries. The commenter 

stated its belief that the exception in 

section 605(a)(3) for use ‘‘as a refrigerant 

in appliances manufactured prior to 

January 2020’’ is not limited to 

appliances within the borders of the 

United States, and thus export of HCFCs 

should be allowed to service such 

appliances outside the United States. 

The commenter also provided 

regulatory language to support this idea, 

suggesting EPA add to both 82.15(g)(2) 

and 82.15(g)(3) the language ‘‘for other 

export as allowed under the provisions 

of the Montreal Protocol.’’ EPA agrees 

that the exemptions provided in 605(a) 

are not limited to the boundaries of the 


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United States and reiterates that exports 

of HCFC–22 and HCFC–142b to nonArticle 5 Parties are allowable if those 

HCFCs (1) are used, recovered, and 

recycled, (2) will be used for 

transformation, or (3) will be used as a 

refrigerant in appliances manufactured 

before January 1, 2010. Because the 

current regulatory language does not 

prohibit such exports, EPA does not 

believe it is necessary to change the 

regulatory text as suggested by the 

commenter. 

Three commenters stated that the 

definition of ‘‘introduction into 

interstate commerce’’ penalizes 

domestic manufacturers by effectively 

banning the export of pre-charged 

appliances containing HCFC–22 to 

Article 5 countries. One of these 

commenters requested that EPA treat 

pre-charged equipment intended for 

export to Article 5 countries in the same 

fashion as it does the export of bulk 

refrigerant. Specifically, EPA should 

allow the factory to charge equipment 

intended for export and count that usage 

of HCFC–22 against the total production 

cap. Another commenter said the export 

ban to Article 5 countries could 

detrimentally affect its partners’ ability 

to fund the research and development of 

new technologies for the domestic 

market. This commenter stated that this 

export ban is contrary to the spirit of the 

Montreal Protocol. The third commenter 

stated that this ban would only cost U.S. 

manufacturing jobs without yielding an 

environmental benefit. 

The inability to export pre-charged 

appliances derives from the section 

605(a) prohibition on use of HCFCs, 

since manufacturers would not be able 

to use HCFC–22 to charge newly 

manufactured appliances and thus 

could not manufacture such equipment 

for either domestic or foreign markets. 

At the point of entry into interstate 

commerce, any appliances containing 

HCFC refrigerant would be covered 

under provisions in the Pre-Charged 

Appliances rule (discussed in 

conjunction with this rule in Section III 

of this preamble) regarding sale and 

distribution in interstate commerce, not 

under the section 605(a) introduction 

into interstate commerce provision, 

which pertains to substances rather than 

products. Therefore, the comment 

suggesting that EPA allow factories to 

charge equipment intended for export 

and to count that usage of HCFC–22 

against the total production cap is not 

consistent with EPA’s interpretation of 

the 605(a) use ban, as the use of the bulk 

HCFC–22 to produce the new 

equipment is prohibited under 605(a). 

Furthermore, export of any new 

appliances and components containing 

HCFC–22 is prohibited under the PreCharged Appliances rule. 

Section 605(d)(2) states that 

notwithstanding 605(a) and (b), which 

contain the use and production 

restrictions on HCFCs, EPA may 

authorize production of limited 

quantities of HCFCs ‘‘solely for export to 

and use in developing countries.’’ The 

restrictions in section 605(a) and (b) 

pertain to bulk substances, not to 

products. In addition, section 605(d)(2) 

refers to HCFCs directly, and not to 

products containing HCFCs. EPA 

interprets section 605(d)(2) as allowing 

production of these ODS where the ODS 

themselves, as bulk substances, will be 

exported to developing countries for use 

in those countries. EPA does not 

interpret section 605(d)(2) as allowing 

use of HCFCs in U.S. product 

manufacture, even where the products 

are destined for use in developing 

countries. 

EPA notes that export of appliances 

that do not contain an HCFC refrigerant 

charge is legal under both this final 

allocation rule and the pre-charged 

products rule. In addition, as noted 

above, EPA is not prohibiting 

introduction of HCFCs into interstate 

commerce for the purpose of export to 

Article 5 countries. 

B. Interpretation of the Term ‘‘Use’’ 

In addition to banning ‘‘introduction 

into interstate commerce’’ of HCFCs, 

section 605(a) also bans the ‘‘use’’ of 

HCFCs. This section discusses EPA’s 

interpretation of the term ‘‘use’’ in 

section 605(a). This discussion builds 

on EPA’s 1993 rulemaking that 

prohibited production and import of 

HCFC–22 and HCFC–142b for most uses 

as of January 1, 2010. 

Section 605(a) states that ‘‘effective 

January 1, 2015, it shall be unlawful for 

any person to * * * use any class II 

substance unless such substance— 

(1) Has been used, recovered, and 

recycled; 

(2) Is used and entirely consumed 

(except for trace quantities) in the 

production of other chemicals; or 

(3) Is used as a refrigerant in 

appliances manufactured prior to 

January 1, 2020. 

As used in this subsection, the term 

‘refrigerant’ means any class II 

substance used for heat transfer in a 

refrigerating system.’’ 

Interpretation of the term ‘‘use’’ is 

important for the proper 

implementation of section 605(a). EPA 

carefully considered what the term 

‘‘use’’ means for purposes of section 

605(a). EPA analyzed whether ‘‘use’’ in 

this context pertains to end-users and 

how this could affect the public’s 

continued operation of products such as 

refrigeration and air conditioning 

equipment. EPA also evaluated whether 

section 605(a) pertains only to 

manufacturing and servicing use. The 

three exemptions to the use prohibition 

found in 605(a) were helpful to EPA’s 

understanding of what ‘‘use’’ means for 

purposes of that section. 

With regard to products containing 

HCFCs for non-refrigerant purposes 

such as TXVs, sterilant mixtures, and 

products exempt from the section 610 

ban on nonessential products, EPA 

interprets the term ‘‘use’’ as relating to 

the manufacture (and where applicable, 

the service) of those products, not the 

utilization of those products in the 

hands of an end-user. By accelerating 

section 605(a), EPA prohibited all ‘‘use’’ 

of virgin HCFC–22 and HCFC–142b (and 

blends thereof) for purposes other than 

the two exempted in section 605(a)(2) 

and (3) (i.e. transformation and as a 

refrigerant in appliances manufactured 

before January 1, 2010) beginning 

January 1, 2010. For example, HCFC– 

142b may no longer be used to blow 

foam, which was its primary use prior 

to 2010. EPA notes that uses not covered 

in section 605(a)(2) and (3) could 

continue if the HCFC is used, recovered, 

and recycled per section 605(a)(1). EPA 

received comments that HCFC–22 

continues to be used in a sterilant blend 

and in thermostatic expansion valves 

(TXVs). In this final rule, EPA is 

creating limited exemptions from the 

accelerated use prohibition for these 

specific uses. 

With regard to HCFCs used as 

refrigerants, EPA interprets the term 

‘‘use’’ to mean initially charging as well 

as maintaining and servicing 

refrigeration equipment. Again, EPA 

does not read use to mean the continued 

utilization of a finished product owned 

by an end user. The three statutory 

exceptions in Section 605(a) inform 

EPA’s understanding of the term ‘‘use.’’ 

While these exceptions apply to the 

‘‘interstate commerce’’ ban as well as 

the ‘‘use’’ ban, the discussion below 

focuses on the ‘‘use’’ aspects of the 

exceptions. 

The first exception, at section 

605(a)(1), applies to class II substances 

that have been ‘‘used, recovered, and 

recycled.’’ This exception confirms 

EPA’s understanding of the use ban as 

limited to the manufacture and 

servicing of HCFC products. If the ban 

applied to the use of HCFCs by a 

consumer, it might include the 

continued operation of an appliance 

(e.g., a residential air conditioner) where 

an HCFC acts as the refrigerant. Under 

this broad definition of ‘‘use,’’ there 

would be an incentive for consumers to 


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hire servicing technicians to recover the 

HCFCs from appliances already in their 

homes and businesses, to recycle the 

HCFCs for reuse, and to charge the 

HCFCs back into the same appliances. 

These steps should not be necessary for 

continued operation of installed 

equipment. However, by taking these 

steps, consumers could avail themselves 

of the exception for ‘‘used, recovered, 

and recycled’’ substances at section 

605(a)(1). There would be no 

environmental benefit to following such 

a procedure. There could even be an 

environmental detriment, given the 

potential for losses of refrigerant during 

the recovery and recycling process. EPA 

does not believe that Congress intended 

such a result. Moreover, EPA believes 

that Congress intended to permit the 

continued use of previously 

manufactured appliances, as indicated 

by the third exception to the use ban 

(section 605(a)(3)). EPA did not receive 

comments indicating that ‘‘use’’ should 

be understood to include use by the 

end-user. Thus, EPA is not interpreting 

use in a way that would result in 

shortening the useful lifetime of 

appliances that were manufactured 

prior to the effective date of the use 

restriction. EPA concludes that the 

section 605(a) ‘‘use’’ ban does not apply 

to a consumer’s operation of equipment 

that contains HCFCs. Rather, it applies 

to the manufacture and servicing of 

equipment containing HCFCs. EPA 

believes that Congress meant for the 

section 605(a)(1) exception to allow the 

use of ‘‘used, recovered, and recycled’’ 

HCFCs in appropriate instances by 

servicing technicians and reclaimers. 

EPA had proposed to interpret this 

exception to allow use of reclaimed 

HCFCs by manufacturers, as well. 

However, in the Pre-Charged 

Appliances rule EPA is prohibiting sale 

and distribution in interstate commerce 

of pre-charged appliances and 

components manufactured after January 

1, 2010, including any such appliances 

and components charged with 

reclaimed material. Equipment charged 

with reclaimed HCFCs is covered by the 

final pre-charged appliance prohibition 

due to the difficulty of distinguishing 

between new and reclaimed material. 

The prohibition on sale and distribution 

of the appliances effectively ends the 

use of all HCFCs, including reclaimed 

HCFCs, in the manufacture of the 

appliances. EPA believes this outcome 

is appropriate because it is not 

practicable to achieve the Congressional 

goal of ending use of virgin HCFCs in 

the manufacture of new appliances 

without simultaneously banning use of 

reclaimed HCFCs in pre-charged 

appliances. Further information can be 

found in the preamble and response to 

comments document in the docket to 

that rule. 

The second exception, at section 

605(a)(2), refers to HCFCs that are ‘‘used 

and entirely consumed (except for trace 

quantities) in the production of other 

chemicals.’’ Similar language appears as 

an exception to the definition of 

‘‘production’’ at section 601(11). EPA 

regulations refer to this type of use as 

‘‘transformation’’ (see the definition of 

‘‘transform’’ at 40 CFR 82.3). The 

current phaseout schedule for HCFC 

production and consumption already 

includes a transformation exception 

within § 82.16. EPA did not receive any 

comments on this issue. EPA is 

implementing the transformation 

exception in section 605(a)(2) consistent 

with the transformation exception to the 

HCFC production phaseout. 

The third exception, at section 

605(a)(3), provides for HCFCs that are 

‘‘used as a refrigerant in appliances 

manufactured prior to January 1, 2020.’’ 

EPA reads this exception as allowing 

appliances, as defined in the CAA, 

manufactured before the specified date 

to be serviced with virgin HCFCs. (The 

meaning of the term ‘‘manufactured’’ is 

discussed below.) This is consistent 

with the legislative history of the 

exception. The predecessor to section 

605(a)(3) in the Senate bill was an 

exception for ‘‘other regulated 

substances’’ (such as HCFCs) that are 

‘‘used to maintain and service 

household appliances or commercial 

refrigeration units manufactured prior to 

January 1, 2015.’’ The House 

amendment contained identical 

language. While the language that 

emerged in the Conference Agreement is 

less specific, we can infer that this 

exception was intended to address, at a 

minimum, maintenance and servicing 

needs. 

Based on these three exceptions to the 

ban, EPA interprets the term ‘‘use’’ in 

section 605(a) to mean, with regard to 

HCFCs used as refrigerants, initially 

charging as well as maintaining and 

servicing refrigeration equipment. Any 

finished product that is owned by end 

users may continue to be utilized. As 

written, the section 605(a)(3) exception 

would permit some newly 

manufactured appliances (i.e., those 

manufactured prior to January 1, 2020) 

to be charged with virgin HCFCs 

following the effective date of the use 

ban. In the 1993 phaseout rule, 

however, EPA banned production and 

import of HCFC–22 and HCFC–142b, 

effective January 1, 2010, for use in 

equipment manufactured after January 

1, 2010. EPA also indicated in the 

preamble to that rule that it intended to 

ban use of virgin HCFC–22 and HCFC– 

142b in such equipment. Consistent 

with decisions made in the 1993 rule, 

EPA is applying the section 605(a)(3) 

exception such that virgin HCFC–22 and 

HCFC–142b, and blends containing 

HCFC–22 or HCFC–142b, may be used 

for servicing and maintenance of 

appliances manufactured before 2010 

but may not be used in the manufacture 

of equipment after January 1, 2010. EPA 

is taking this action under the authority 

of section 606 of the Clean Air Act. EPA 

notes that allowable servicing could 

entail a wide range of activities 

including replacing parts or 

components. Per the accompanying PreCharged Appliances rule, these parts 

and components may contain HCFCs 

(including virgin material) if 

manufactured prior to January 1, 2010, 

but must be shipped without HCFC (i.e. 

dry or with a nitrogen holding charge) 

if manufactured after January 1, 2010. 

For the low-ODP refrigerants covered by 

section 82.16(d) (HCFC–123, HCFC–124, 

HCFC–225ca, and HCFC–225cb), 

however, EPA is not accelerating the 

January 1, 2015, effective date or the 

January 1, 2020, cutoff date in section 

605(a)(3). Thus, for these low-ODP 

refrigerants, virgin material may be used 

as a refrigerant in appliances 

manufactured before January 1, 2020. 

This will allow initial charging of 

appliances using low-ODP HCFCs for a 

limited period following the effective 

date of the use restriction as well as 

servicing and maintenance uses. 

Although EPA has not received 

comment on it, HCFC–22 and HCFC– 

142b, both neat or in blends with other 

fluids, have also been used in a broader 

range of products, including some 

products subject to, and other products 

exempt from, the nonessential products 

ban at section 610 of the CAA. Section 

610(d) includes a self-effectuating ban 

on the sale of aerosol products and other 

pressurized dispensers, and plastic foam 

products that are not insulating foam 

products that contain HCFCs. EPA 

promulgated regulations that 

established a list of products exempted 

from the nonessential products ban. 

These products, listed in 40 CFR 82.70, 

consist of lubricants, coatings, or 

cleaning fluids for electrical or 

electronic equipment; lubricants, 

coatings, or cleaning fluids used for 

aircraft maintenance; mold release 

agents used in the production of plastic 

and elastomeric materials; spinnerette 

lubricants and cleaning sprays used in 

the production of synthetic fibers; 

document preservation sprays; portable 

fire extinguishing equipment used for 


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10See 40 CFR 82.152 which contains the 

definition of ‘‘appliance’’ as well as examples of 

types of appliances in the definitions of 

‘‘commercial refrigeration,’’ ‘‘industrial process 

refrigeration,’’ and ‘‘small appliances.’’ 

non-residential applications; wasp and 

hornet sprays for use near high-tension 

power lines; and foam insulation 

products (as defined in § 82.62). 

While certain products containing 

HCFC–22, HCFC–142b, or blends 

thereof, are exempt from the 

nonessential products ban, EPA reads 

section 610 and section 605(a) together. 

By prohibiting use and introduction into 

interstate commerce of HCFCs as bulk 

substances, section 605(a) effectively 

prohibits the continued manufacture of 

any products containing HCFCs (which 

qualifies as a type of ‘‘use’’) unless 

specifically exempted in that section. 

None of the products exempt from the 

section 610(d) nonessential products 

ban fall under the 605(a) exemptions. 

Therefore, EPA clarifies here that such 

products are prohibited from continued 

manufacture, unless manufactured with 

recovered HCFCs. EPA believes that this 

will not impose any burden as 

manufacturers of these products have 

transitioned to alternatives. 

Finally, EPA does not interpret ‘‘use’’ 

to include destruction, recovery for 

disposal, discharge consistent with all 

other regulatory requirements, or other 

similar actions where the substance is 

part of a disposal chain. At the point 

disposal-related actions occur, other 

statutory and regulatory provisions 

generally govern. For example, Congress 

addressed the issue of disposal under 

section 608. EPA has promulgated 

regulations to implement section 608 for 

appliances: These safe disposal 

requirements are codified at 40 CFR part 

82 subpart F. In some instances, HCFCs 

may need to be introduced into 

interstate commerce in order to reach an 

appropriate destruction facility. 

Consistent with its interpretation of 

‘‘use,’’ EPA is interpreting the interstate 

commerce prohibition to exclude 

introduction into interstate commerce 

for the purpose of destruction. 

C. Interpretation of the Phrase 

‘‘Appliances Manufactured Prior To’’ 

The exception in section 605(a)(3) 

limits introduction into interstate 

commerce and use to situations where 

the HCFC ‘‘is used as a refrigerant in 

appliances manufactured prior to’’ the 

specified date. EPA did not propose a 

definition of ‘‘appliance’’ specific to this 

action as ‘‘appliance’’ is already defined 

in 40 CFR part 82, subpart F, 10 based 

on the definition provided in section 

601 of the Clean Air Act. Commenters 

requested clarification from EPA on 

what is an appliance, therefore, to 

facilitate understanding of this issue 

EPA is adding this same definition to 

Subpart A in 40 CFR 82.3. An appliance 

is ‘‘any device which contains and uses 

a refrigerant and which is used for 

household or commercial purposes, 

including any air conditioner, 

refrigerator, chiller, or freezer.’’ Many 

devices meet the section 601 definition 

of appliance. For example, commercial 

refrigeration includes end uses such as 

retail food refrigeration and cold 

storage. Industrial process refrigeration 

includes complex customized 

appliances used in the chemical, 

pharmaceutical, petrochemical, and 

manufacturing industries. This sector 

includes industrial ice machines, 

appliances used directly in the 

generation of electricity, and ice skating 

rinks. Other types of appliances include 

household refrigerators and freezers; 

chillers; water coolers; vending 

machines; residential dehumidifiers; 

and unitary systems including 

residential and light commercial heat 

pumps. Appliances are separate from 

components, which are the individual 

parts of an appliance, such as a 

condensing unit or line set, that by 

themselves cannot function to provide a 

cooling effect. In considering the 

meaning of ‘‘manufactured,’’ EPA has 

considered the definition of appliance 

carefully, particularly evaluating at 

what point a group of components 

become a manufactured appliance. 

In the final rule, EPA is providing a 

definition of the term ‘‘manufactured.’’ 

This definition can also be found in the 

companion Pre-Charged Appliances 

rule. The term manufactured ‘‘for an 

appliance, means the date upon which 

the appliance’s refrigerant circuit is 

complete, the appliance can function, 

the appliance holds a full refrigerant 

charge, and the appliance is ready for 

use for its intended purposes; and for a 

pre-charged appliance component, 

means the date that such component is 

completely produced by the original 

equipment manufacture, charged with 

refrigerant, and is ready for initial sale 

or distribution in interstate commerce.’’ 

Small appliances, such as refrigerators 

and window air-conditioners, thus are 

‘‘manufactured’’ at the manufacturing 

facility. For instance, an appliance that 

has been pre-charged with the desired 

amount of refrigerant, has gone through 

the entire production line so that all 

mechanical and electrical procedures 

are complete, and is a ‘‘stand-alone’’ 

piece of equipment (i.e., it only needs to 

be plugged into an electrical outlet and 

turned on to function properly) is 

‘‘manufactured’’ when it is placed into 

the manufacturer’s initial inventory. 

Appliances used in commercial 

refrigeration and industrial process 

refrigeration typically involve more 

complex installation processes and may 

require custom-built parts and thus are 

considered differently. Appliances that 

are field charged or have the refrigerant 

circuit completed onsite, regardless of 

whether additional refrigerant is added 

or not, are ‘‘manufactured’’ at the point 

when installation of all of the 

components and other parts are 

completed and the appliance is fully 

charged with refrigerant. Some 

components, such as condensing units 

for split-system air conditioners, contain 

a refrigerant charge from the factory but 

are then typically adjusted in the field 

at the time the appliance is installed to 

account for different line sizes and 

indoor unit configurations. EPA 

considers the ‘‘manufacture’’ of that 

split-system similar to that for fieldcharged equipment; that is, manufacture 

is not complete until the device is 

installed in the field and fully charged. 

EPA clarifies that ‘‘the date upon which 

the appliance’s refrigerant circuit is 

complete’’ means the initial date, and 

does not include any opening and reclosing of the refrigerant loop as a result 

of servicing. 

EPA received thirteen comments 

regarding its interpretation of the term 

‘‘manufacture.’’ Commenters were 

primarily concerned with the effect that 

this interpretation will have on 

inventory that is still unsold after 

January 1, 2010. EPA discusses below 

its effort to minimize the effect on 

existing inventory. Eight commenters 

recommended that EPA define 

manufacture as the date the product, 

whether it is a complete appliance or 

not, leaves the original equipment 

manufacturer’s (OEM) final assembly 

process, is packaged for shipment, and 

placed into initial inventory. EPA 

believes the commenters’ concern arises 

with how the two terms ‘‘appliance’’ 

and ‘‘manufacture’’ are applied together. 

Small appliances, i.e., devices that have 

a completed refrigerant circuit, are fully 

charged, and are functional and ready 

for use at the time they leave the factory 

are ‘‘manufactured’’ at the time they are 

placed into initial inventory at the 

factory and are shipped as complete 

‘‘appliances’’ rather than as a set of 

components. In contrast, appliances 

used in commercial refrigeration and 

industrial process refrigeration are not 

placed in inventory or shipped as 

complete ‘‘appliances.’’ In such cases, 

OEMs are manufacturing components, 

not appliances. The point of 

manufacture of the commercial or 

industrial process refrigeration 


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appliance occurs after the components 

have left the factory. EPA has 

consistently stated its interpretation that 

individual components such as 

condensers, evaporators, compressors, 

line sets, and valves in themselves do 

not constitute an appliance. In an earlier 

rulemaking addressing the sales of precharged appliance components, the 

Agency stated that pre-charged 

components are parts of but ‘‘are clearly 

not appliances’’ (November 9, 1994; 59 

FR 55912). Commenters to the 

companion Pre-Charged Appliances rule 

noted that EPA provides similar 

language on its refrigerant sales 

restriction factsheet (found at 

(www.epa.gov/ozone/title6/608/sales/ 

sales.html), which states that ‘‘EPA 

considers a ‘part’ to be any component 

or set of components that makes up less 

than an appliance. For example, this 

includes line sets, evaporators, or 

condensers that are not sold as part of 

a set from which one can construct a 

complete split system or other 

appliance. EPA considers a part to be 

‘pre-charged’ if it contains a CFC or 

HCFC that will become part of the 

operating charge of an appliance.’’ EPA 

defines ‘‘pre-charged components’’ in 

the Pre-Charged Appliances rulemaking. 

In this HCFC allocation rule, EPA is 

clarifying that the appliance itself is not 

manufactured until the component 

parts, whether pre-charged or not, are 

fully installed and charged. 

Five commenters stated that the 

proposed interpretation would 

negatively affect HVAC equipment used 

in commercial and residential buildings 

(including modular buildings). For 

example, a situation could arise where 

both the pre-charged condensing unit 

and indoor coil would be produced and 

possibly shipped prior to January 1, 

2010, but the refrigerant loop would not 

be completed until after that date. As 

described above, EPA believes that 

placement of components into initial 

inventory or partial installation of 

certain components does not make 

sense as a definition of manufacture for 

split systems or other such appliances. 

In effect, what these commenters are 

requesting is that the appliance be 

considered manufactured when all of its 

component parts, or one specific part, 

are placed into initial inventory, not 

when those various parts are combined 

into a functional appliance, as defined 

at Section 82.152. 

Fourteen commenters expressed 

concern that EPA’s interpretation of 

manufacture will strand existing 

inventory of components and present a 

financial burden to OEMs, distributors, 

and contractors holding that equipment. 

EPA disagrees with the comment that 

inventory will have to be scrapped or 

that there are no further uses of that 

equipment. First, section 605(a) 

provides an exception to the use ban for 

used, recycled, or reclaimed refrigerant. 

Thus, reclaimed refrigerant could be 

used to charge components being 

installed in the field so as to 

manufacture a completely new 

appliance so long as charging occurs at 

the installation site rather than at the 

factory. Note that under the Pre-Charged 

Appliance rule, components could not 

be shipped with a charge of HCFC–22 or 

HCFC–142b, or blend thereof (even if 

reclaimed), but could be charged with a 

nitrogen holding charge or shipped dry. 

Second, pre-charged components 

manufactured before 2010 can be sold to 

service existing equipment. For 

example, an HCFC–22 condensing unit 

that fails after 2010 may be replaced 

with a similar HCFC–22 condensing 

unit that was manufactured prior to 

January 1, 2010. There is no limitation 

on whether the component contains 

virgin or reclaimed HCFC–22 or is 

shipped dry in this instance as the 

component was manufactured prior to 

January 1, 2010, and is being used for 

servicing rather than appliance 

manufacture. These continued uses of 

existing equipment allow holders of 

existing inventory to continue selling 

such equipment. Manufacturers, 

however, are prohibited from producing 

and charging with HCFC–22 

components designed for use solely in 

the manufacture of new HCFC–22 

systems after December 31, 2009. Based 

on comments submitted to this rule and 

made in prior stakeholder meetings, 

EPA does not anticipate OEMs 

producing such components or systems 

after December 31, 2009. 

The continued sale of existing 

inventory will both reduce burden to 

stakeholders and be protective of the 

environment. EPA considers 

replacement of components as within 

the definition of servicing of existing 

equipment. EPA’s Vintaging Model 

takes into account repairs such as these 

when modeling the lifetime of the 

appliance. Thus, allowing replacement 

of components with existing inventory 

does not change the estimated servicing 

demand. Furthermore, there may be no 

overall benefit to the environment in 

requiring companies holding existing 

equipment to scrap their inventory. In 

addition to the solid waste generated, 

there is the potential for losses of 

refrigerant during recovery and 

subsequent handling of the refrigerant. 

EPA also received comments 

requesting a limited waiver for HCFC– 

22 and HCFC–142b appliances that had 

been scheduled for use in projects, such 

as construction projects, prior to January 

1, 2010, but not yet completed. 

Commenters provided a range of 

scenarios in which building plans were 

established, but ground had not yet been 

broken, or appliance components 

ordered but not yet installed. 

Commenters noted that an increased 

financial burden would be borne by 

those who had made ‘‘good faith’’ 

attempts to adhere to the HCFC–22/ 

HCFC–142b use ban prior to 2010, but 

for various reasons beyond their control 

(e.g., budget shortfalls, weather delays, 

labor strikes) would not be able to 

complete projects prior to January 1, 

2010. Commenters stated that EPA 

should accommodate new installations 

specifying HCFC–22 or HCFC–142b 

appliances that have entered into 

contracts, completed the bidding 

process, or have received building code 

approval prior to January 1, 2010. 

In response to these concerns, EPA is 

granting flexibility in limited instances 

where projects have begun but due to 

delays have not yet been completed 

prior to January 1, 2010. EPA is adding 

to § 82.15(g)(2) the following exception: 

‘‘Introduction into interstate commerce 

and use of HCFC–22 is not subject to the 

prohibitions in paragraph (g)(2)(a)) of 

this section if the HCFC–22 is * * * for 

use as a refrigerant in appliances 

manufactured before January 1, 2012, 

provided that the components are 

manufactured prior to January 1, 2010, 

and are specified in a building permit or 

a contract dated before January 1, 2010, 

for use on a particular project.’’ EPA 

does not intend to establish an acrossthe-board exemption to the phaseout 

period, but is adjusting the accelerated 

section 605(a) phaseout to allow for 

unforeseen delays in limited 

circumstances. In general, the Agency 

feels that ample time has been granted 

to allow chemical, appliance, and 

component manufacturers to phase out 

the manufacture of products dependent 

on HCFC–22, HCFC–142b, and blends 

thereof that are not intended to service 

existing installations. In 1993 EPA 

issued the first rule banning the 

production of HCFC–22 and HCFC– 

142b for use in equipment 

manufactured before January 1, 2010. 

Nonetheless, after considering 

comments, EPA is granting some 

flexibility to address particular 

circumstances affected by the definition 

of ‘‘manufacture’’ proposed in the 

December 23, 2008, proposal. EPA 

believes that a two year grandfathering 

provision will provide sufficient time to 

those who are bound by either a 

contract or building permit but facing 


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11EPA is not aware of any TXVs that use HCFC– 

142b; thus this provision only addresses TXVs 

containing HCFC–22. 

delays to complete the installation (i.e., 

‘‘manufacture’’) of such equipment. 

EPA recognizes that building permits 

and contractual arrangements exist for 

construction projects that involve airconditioning systems that will not be 

‘‘manufactured’’ (e.g., completion of the 

refrigerant circuit) until after December 

31, 2009. In response to comments 

expressing this concern, this rule 

establishes a grandfathering provision 

which allows appliances containing 

HCFC–22, HCFC–142b, or blends 

thereof to be ‘‘manufactured’’ onsite for 

a particular project between January 1, 

2010, and December 31, 2011, if their 

components are made prior to January 1, 

2010, and specified for use at that 

project under a building permit or 

contract dated before January 1, 2010. 

EPA believes this will provide relief to 

the various concerns that were 

expressed by stakeholders. 

EPA does not anticipate that this 

grandfathering will affect total modeled 

demand. The Vintaging Model assumes 

that this equipment was installed in 

2009 and estimates servicing need based 

on 2009 as the date of manufacture. If 

not installed in 2009 but rather installed 

in subsequent years, the model already 

assumes it is installed, so the total 

servicing demand is not affected, though 

it is shifted forward in time. Thus, the 

model may underestimate actual annual 

demand from 2010 onward. 

D. Exceptions to the Accelerated Use 

Restrictions 

In the proposed rule, EPA clarified its 

prior interpretation from the 1993 

phaseout rule (58 FR 15028) that the 

Agency was accelerating the section 

605(a) prohibition on use of virgin 

HCFC–22, HCFC–142b, and blends 

thereof, except as a feedstock or as a 

refrigerant in existing equipment as of 

January 1, 2010. The accelerated use ban 

derives from EPA’s authority under 

section 606 of the Clean Air Act to 

phase out the use of class II substances 

more rapidly than the schedule set forth 

in section 605. Under section 606, the 

Administrator is to accelerate the 

schedule ‘‘if 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.’’ As discussed above, EPA 

believes that alternatives are available 

for HCFC–22 and HCFC–142b and 

therefore believes it is appropriate to 

accelerate the schedule. However, EPA 

received comments that described niche 

applications for HCFC–22. These two 

uses are for medical equipment and for 

thermostatic expansion valves (TXVs). 

In those two instances, EPA does not 

believe that the accelerated 605(a) ban is 

practicable, because while alternatives 

exist, it is not feasible to implement 

them immediately. In this final rule, 

EPA is exempting virgin HCFC–22 for 

use in TXVs and for medical equipment 

from the 2010 accelerated ban on 

introduction into interstate commerce 

and use. 

The existing regulations at 40 CFR 

82.16(c) prohibit, beginning January 1, 

2010, the production and import of 

HCFC–22 for all uses except for use in 

a process that results in their 

transformation or destruction, for use as 

a refrigerant in equipment manufactured 

prior to January 1, 2010, or for limited 

export. Therefore, these users have had 

notice of the upcoming ban on 

production. However, EPA believes that 

there is benefit in allowing for the 

continued use of already produced 

material in these few specific nonrefrigerant uses. Therefore, under this 

rule EPA is exempting the use of HCFC– 

22 produced prior to January 1, 2010, 

for TXVs and medical equipment. This 

limited exception ends December 31, 

2014, as that is the date upon which all 

uses of HCFCs, except for those 

specifically enumerated in section 

605(a), are banned. 

1. Thermostatic Expansion Valves 

EPA received several comments 

regarding the effect the proposed rule 

would have on the use and manufacture 

of thermostatic expansion valves (TXV). 

A TXV is a hermetically sealed valve 

that uses a very small amount of HCFC– 

22; one commenter said that they 

contain as little as 3 grams of HCFC–22. 

TXVs increase the efficiency of air 

conditioning and refrigeration 

equipment by carefully regulating the 

flow of refrigerant in the refrigerant 

circuit. The HCFC–22 contained in a 

TXV is separate from the HCFCs that act 

as refrigerants in the refrigerant circuit. 

As such, one commenter stated that 

TXVs should be exempt from regulation 

because the HCFC–22 charged in the 

TXV bulb does not provide cooling 

effect. EPA believes the intent of this 

comment was to allow for the continued 

sale of TXVs under EPA’s companion 

Pre-Charged Appliances rule. EPA 

agrees that the HCFC–22 sealed within 

TXVs is not used for heat transfer 

purposes and not part of the refrigerant 

loop. Since it is not used for heat 

transfer in a refrigeration system the 

HCFC–22 used in TXVs is therefore not 

used as a ‘‘refrigerant’’ as defined in 

section 605(a). Therefore, this use of 

HCFC–22 is not exempted under section 

605(a)(3). 

Under section 605(a), the manufacture 

of TXVs containing HCFC–22 and 

HCFC–142b could continue if the HCFC 

in the TXV is used, recycled, or 

reclaimed.11 Commenters argued that 

reclaimed HCFCs would not be 

appropriate for TXVs. They stated that 

virgin HCFC–22 has 100–200 ppmv 

volatile impurities while the ARI 

Standard 700 allows a maximum of 

5,000 ppmv volatile impurities in 

reclaimed refrigerant. Commenters 

stated that the effects of these additional 

impurities are not yet understood and 

the TXV industry has not yet analyzed 

the effects or searched for alternatives to 

HCFC–22 in TXVs. Commenters told 

EPA that they expect they could 

complete such research within two 

years. In the meantime, however, they 

expressed concerns that not using an 

appropriate valve could cause a system 

to run inefficiently and possibly lead to 

catastrophic failure, with the associated 

possible loss of ODS. 

One commenter argued against 

banning the sale of TXVs because they 

said that any loss from a leaky valve 

would be less than the de minimis loss 

associated with routine servicing. EPA 

disagrees with the commenter’s 

suggestion to consider providing a de 

minimis exception in this instance. EPA 

has regulated many products that 

individually contain small amounts of 

ozone-depleting substances, such as 

aerosols and metered dose inhalers. 

While EPA agrees that a single TXV 

contains a small amount of HCFC–22, 

the amount of HCFC contained within a 

single product is not determinative of 

whether the total amount of HCFCs 

contained in such products is trivial. 

EPA understands that the TXV 

manufacturers may not have been aware 

of the effects this rulemaking would 

have and agrees relief is appropriate to 

allow TXV manufacturers time to 

research appropriate alternatives, 

including reclaimed material. Such 

alternatives include cross-charge valves, 

which are valves that contain a different 

HCFC from the refrigerant found in the 

refrigerant loop. These valves currently 

exist but not all air-conditioning and 

refrigeration systems are compatible 

with a cross-charge valve. Further 

research can also be conducted to 

ascertain whether reclaimed HCFCs are 

suitable for use in TXVs. 

As described above, EPA’s 

interpretations of ‘‘introduction into 

interstate commerce’’ and ‘‘use’’ do not 

affect products manufactured prior to 

January 1, 2010. Therefore, existing 


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TXVs may be used as replacements in 

existing air-conditioning and 

refrigeration equipment. Based on the 

comment that millions of TXVs are used 

each year, EPA does not believe that the 

existing inventory can meet the 

servicing demand of all remaining 

existing equipment. Nor does EPA 

believe that production of additional 

TXVs could be increased so shortly 

before January 1, 2010. 

The lack of a TXV could result in a 

system running less efficiently or, in a 

worst case scenario, lead to compressor 

damage. EPA is concerned that failing to 

ensure an adequate supply of TXVs will 

result in the unintended consequence of 

removing existing equipment from 

service faster than anticipated. While 

likely rare, EPA wants to avoid the 

result of requiring existing equipment 

owners to have to replace an entire 

system due to the unavailability of an 

inexpensive valve. Therefore, this final 

rule allows for the introduction into 

interstate commerce and use of HCFC– 

22 produced prior to January 1, 2010, to 

be used until January 1, 2015, for the 

manufacture of TXVs. 

2. Medical Equipment 

Commenters to this rule also informed 

EPA that two companies continue to use 

a product containing ethylene oxide, 

HCFC–124, and HCFC–22 to sterilize 

medical equipment. One is a major 

manufacturer of intraocular lenses that 

are surgically implanted into the eye to 

treat cataracts. The other reprocesses 

costly heart catheters that were once 

discarded after a single use. After the 

close of the comment period, EPA 

received comment that another 

company continues to use a refrigerant 

blend containing HCFC–22 in a medical 

equipment device that provides therapy 

for women suffering from menorrhagia 

(excessive bleeding) by reducing 

menstrual flow. While this equipment 

uses HCFC–22 in a refrigerant blend, it 

is not an ‘‘appliance’’ under the Clean 

Air Act. Under the section 601(1) 

definition of ‘‘appliance,’’ the device 

must be ‘‘used for household or 

commercial purposes, including any air 

conditioner, refrigerator, chiller, or 

freezer.’’ This device is used for medical 

purposes and does not provide comfort 

cooling or refrigeration. Beginning in 

2010 it would be unlawful for the 

chemical producer to introduce the 

HCFC–22 into interstate commerce and 

for medical companies to use the 

HCFC–22 in their manufacture of 

medical equipment. 

The two companies began 

transitioning from the blend containing 

HCFC–22 to pure ethylene oxide but 

they are currently two to four years 

away from fully implementing that 

alternative. Pure ethylene oxide, a 

SNAP-approved non-ozone-depleting 

compound, is explosive and must be 

used in specially designed and 

constructed facilities. Once the facilities 

are constructed, they must then be 

approved by the Food and Drug 

Administration (FDA) before they can 

begin manufacturing medical devices. 

Thus, while an alternative is approved 

for sterilant use, these two companies 

are still in the process of constructing 

and receiving approval for new facilities 

which would allow them to transition to 

that alternative. 

EPA agrees with the commenter that 

the use of recovered and reclaimed 

HCFC–22 as a component of a sterilant 

is not a viable solution for sterilizing 

medical equipment. First, reclaimed 

HCFC–22 is purified according to AirConditioning, Heating, and Refrigeration 

Institute (AHRI) standards. The ARI 

Standard 700, among other things, 

requires that reclaimed HCFC–22 be 

99.5% pure before being resold. This 

standard was designed to ensure that 

refrigeration equipment will work 

equally well regardless of whether the 

HCFC–22 is reclaimed or virgin. This 

standard does not consider medical uses 

of HCFC–22, where a 0.5% 

contamination level could have 

deleterious health effects. In addition, 

because reclaimed HCFC–22 is 

recovered from a variety of sources, the 

nature and the composition of the 

contaminants are varied and unknown. 

By contrast, commenters have told EPA 

that the contaminants in virgin HCFC– 

22 are constant and known because the 

source and production methods remain 

the same. Therefore, these contaminants 

have been screened for any medical 

effects and accounted for in the FDA 

approval of the sterilants for that 

medical use. 

After the close of the comment period, 

EPA also heard from a manufacturer of 

medical equipment that contains HCFC– 

22 in a refrigerant blend and is used to 

ablate endometrial tissue. This company 

explained that it has taken significant 

steps to replace the HCFC–22 blend 

with an alternative refrigerant and was 

on schedule to have the replacement 

approved to be used in the medical 

device by the Underwriters Laboratory 

(UL) but the UL approval will not take 

place in 2009. This company requested 

a one-year exemption from the HCFC– 

22 use restriction, giving it enough time 

to complete the UL approval process. 

EPA believes that an exception for the 

medical equipment described above is 

reasonable. First, such an exception is 

the type that was contemplated by 

Congress when writing the Clean Air 

Act. Section 605(d) authorizes EPA and 

FDA, in consultation, to allow the 

limited production and use of class II 

substances for medical devices after the 

statutory phaseout date of 2015. The 

existing regulation at 40 CFR 82.15(f) is 

reserved for a potential future exception 

for medical devices under Section 

605(d). EPA is not invoking its authority 

under section 605(d) to create the 

exception for medical devices in this 

final rule because section 605(a) does 

not require a use phaseout until 2015. 

Nevertheless, EPA finds this exemption 

illustrative of the importance that 

Congress placed on medical uses. EPA 

is not inclined to create an exception for 

medical uses of HCFC–22 under section 

605(d) when it issues allocations for the 

2015–2019 control periods because EPA 

expects it will be practicable to 

implement alternatives by 2015. Based 

on the comments received in this rule, 

the few remaining users of HCFC–22 for 

medical purposes have plans in place to 

transition to alternatives prior to 2015. 

Second, this exception will not have 

any adverse effects on the stratospheric 

ozone layer. EPA is limiting this 

exception to HCFC–22 that was 

produced under consumption 

allowances expended prior to January 1, 

2010. The existing regulatory text in 

section 82.16(c) does not allow for 

HCFC–22 production beginning in 2010 

for these sterilant uses and this use 

exemption would not change those 

provisions. Therefore, this exception 

will not result in additional production. 

EPA finally notes that the total volume 

of HCFC–22 needed for this use is small. 

The three companies estimate that only 

57,000 kg of HCFC–22 will be needed 

between 2010 and the end of 2014. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

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, 


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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 Pre-charged Imports. 

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 requirements and through this 

action is not proposing to amend those 

provisions. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR part 82 

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 (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this proposal on small entities, 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

This action will affect the following 

categories: 

Category NAICS code SIC code Examples of regulated entities 

Industrial Gas Manufacturing ....................................... 325120 2869 Fluorinated hydrocarbon gases manufacturers and reclaimers. 

Other Chemical and Allied Products Merchant Wholesalers.424690 5169 Chemical gases and compressed gases merchant 

wholesalers. 

Air-Conditioning and Warm Air Heating Equipment 

and Commercial and Industrial Refrigeration Equipment Manufacturing.

333415 3585 Air-Conditioning Equipment and Commercial and Industrial Refrigeration Equipment manufacturers. 

Air-Conditioning Equipment and Supplies Merchant 

Wholesalers.

423730 5075 Air-conditioning (condensing unit, compressors) merchant wholesalers. 

Electrical and Electronic Appliance, Television, and 

Radio Set Merchant Wholesalers.

423620 5064 Air-conditioning (room units) merchant wholesalers. 

Plumbing, Heating, and Air-Conditioning Contractors 238220 1711, 7623 Central air-conditioning system and commercial refrigeration installation; HVAC contractors. 

After considering the economic 

impacts of the final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

EPA is not changing the methodology 

for the 2010–2014 control periods. 

Instead, EPA is continuing to allocate 

production and consumption 

allowances using the same approach 

currently used for control periods 2003– 

2009. Thus the 13 small businesses 

eligible for allowances for HCFC–22 and 

HCFC–142b identified in that 

rulemaking (68 FR 2845) are still 

eligible for allowances under this rule. 

In addition, small businesses eligible for 

HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb allowance allocations 

using the same methodology, are 

eligible for allowances. EPA is not 

modifying the recordkeeping or 

reporting provisions and thus will not 

have any impact on the burden to these 

businesses. 

While EPA does not believe this 

action has a significant economic 

impact on a substantial number of small 

entities, nonetheless, EPA continues to 

try to reduce further any impacts on 

small entities. With respect to the 

allowance allocation system as a whole, 

EPA is continuing to provide flexibility. 

Consistent with the methodology for 

establishing baselines for HCFC–141b, 

HCFC–22, and HCFC–142b, while small 

entities will be on the same footing as 

larger entities, EPA is again using the 

highest year of consumption. EPA is 

also limiting consideration of companyspecific baseline adjustments to reflect 

only permanent inter-company transfers 

made prior to June 16, 2008, to avoid 

skewing baselines to entities with ample 

resources or access to information. The 

ability to transfer allowances among 

entities provides the greatest flexibility 

for small entities to manage their 

allocation. As noted in the 2003 

allocation rule (68 FR 2846), unlike with 

the class I substances, there is no 

restriction to limit inter-pollutant 

transfers to groups of substances. Both 

inter-pollutant and inter-company 

transfers of allowances are possible. A 

small entity can opt for short-term or 

long term decisions concerning the 

allowances it holds after evaluating its 

place in the overall market. 

EPA has also tried to reduce the 

impact to small businesses from the 

section 605(a) provisions restricting the 

introduction into interstate commerce 

and use of HCFC–22 and HCFC–142b. 

Commenters expressed concern that 

under EPA’s interpretation of the term 

‘‘manufactured,’’ components that are 

still in inventory on January 1, 2010, 

would be stranded. In this final rule, 

EPA is clarifying that distributors and 

contractors, typically small businesses, 

may continue to sell such equipment in 

order to service existing equipment that 

uses HCFC–22. Such servicing includes 

the replacement of whole condensing 

units, compressors, or line sets. While 

the proposed rule prohibited the 

manufacture of new appliances 

containing HCFC–22, HCFC–142b, or 

blends thereof, EPA is providing a 

limited exception in this final rule to 


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allow for continued manufacture of 

such appliances between January 1, 

2010, and December 31, 2011, if the 

components are made prior to January 1, 

2010, and specified for use at that 

project under a building permit or 

contract dated before January 1, 2010. 

Finally, EPA is clarifying that new 

appliances may continue to be 

manufactured from dry components if 

the competed appliance is charged with 

recovered, recycled, or reclaimed 

refrigerant. EPA believes these three 

options will provide relief to the various 

concerns that were expressed by 

stakeholders. 

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. First, 

UMRA does not apply to rules that are 

necessary for the implementation of 

international treaty obligations. This 

rule implements the 2010 milestone for 

the phaseout of HCFCs under the 

Montreal Protocol. The requirements 

already established at 40 CFR part 82 

subpart A already govern the 

production, import, and export of ODS. 

The regulatory changes for the next 

major milestone in the phaseout 

continue to implement the same general 

framework previously established. This 

action will not have any significant 

direct impacts or State, local and tribal 

governments or private sector entities. 

Therefore, this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action apportions production and 

consumption allowances and 

establishes baselines for private entities, 

not small governments. 

E. Executive Order 13132: Federalism 

Executive Order 13132, titled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It does 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. In the 

spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicited comment on this action from 

State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action 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 FR 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) Whieman D, Green A. ‘‘Melanoma 

and Sunburn,’’ Cancer Causes Control, 

1994; 5:564–72; (5) Heenan PJ. ‘‘Does 

intermittent sun exposure cause basal 

cell carcinoma? A case control study in 

Western Australia,’’ Int J Cancer 1995; 

60:489–94; (6) Gallagher RP, Hill GB, 

Bajdik CD, et. al. ‘‘Sunlight exposure, 

pigmentary factors, and risk of 

nonmelanocytic skin cancer I, Basal cell 

carcinoma.’’ Arch Dermatol 1995; 

131:157–63; (7) Armstrong DK. ‘‘How 

sun exposure causes skin cancer: an 

epidemiological perspective,’’ 

Prevention of Skin Cancer. 2004. 89– 

116. 

This action reduces the potential 

continued use of Class II controlled 

substances and the emissions of such 

substances. It implements the United 

States commitment to reduce the total 

basket of HCFCs produced and imported 

to a level that is 75 percent below the 

respective baselines. While on an ODPweighted 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 United 

States 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 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 regulation issues allowances for the 

production and consumption of HCFCs, 

and prohibits the introduction into 

interstate commerce or use of products 

containing HCFCs. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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. The 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 


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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 low-income 

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. By allocating 

allowances for HCFCs and thus 

restricting the amount of HCFCs 

available as of January 1, 2010, this rule 

avoids emissions of these ozonedepleting substances, lessening 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 United States. 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 United 

States 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 January 1, 2010. 

List of Subjects in 40 CFR Part 82 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Chemicals, 

Chlorofluorocarbons, Exports, 

Hydrochlorofluorocarbons, Imports, 

Reporting and recordkeeping 

requirements. 

Dated: December 7, 2009. 

Lisa P. Jackson, 

Administrator. 

■ 40 CFR part 82 is amended as follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

■ 1. The authority citation for part 82 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671– 

7671(q) 

Subpart A—Production and 

Consumption Controls 

■ 2. Amend § 82.3 by adding in 

alphabetical order the definition of 

‘‘Appliance’’, ‘‘Interstate commerce’’, 

and ‘‘Manufactured’’ to read as follows: 

§ 82.3 Definitions for class I and class II 

controlled substances. 

* * * * * 

Appliance means any device which 

contains and uses a refrigerant and 

which is used for household or 

commercial purposes, including any air 

conditioner, refrigerator, chiller, or 

freezer. 

* * * * * 

Interstate commerce means the 

distribution or transportation of any 

controlled substance between one state, 

territory, possession or the District of 

Columbia, and another state, territory, 

possession or the District of Columbia, 

or the sale, use or manufacture of any 

controlled substance in more than one 

state, territory, possession or District of 

Columbia. The entry points for which a 

controlled substance is introduced into 

interstate commerce are the release of a 

controlled substance from the facility in 

which the controlled substance was 

manufactured, the entry into a 

warehouse from which the domestic 

manufacturer releases the controlled 

substance for sale or distribution, and at 

the site of United States customs 

clearance. 

* * * * * 

Manufactured, for an appliance, 

means the date upon which the 

appliance’s refrigerant circuit is 

complete, the appliance can function, 

the appliance holds a full refrigerant 

charge, and the appliance is ready for 

use for its intended purposes; and for a 

pre-charged appliance component, 

means the date that such component is 

completely produced by the original 

equipment manufacture, charged with 

refrigerant, and is ready for initial sale 

or distribution in interstate commerce. 

* * * * * 

■ 3. Amend § 82.15 by revising 

paragraph (c) and adding paragraph (g) 

to read as follows: 

§ 82.15 Prohibitions for class II controlled 

substances. 

* * * * * 

(c) Production with Article 5 

allowances. No person may introduce 

into U.S. interstate commerce any class 

II controlled substance produced with 

Article 5 allowances, except for export 

to an Article 5 Party as listed in Annex 

4 of Appendix C of this subpart. Every 

kilogram of a class II controlled 

substance produced with Article 5 

allowances that is introduced into 

interstate commerce other than for 

export to an Article 5 Party constitutes 

a separate violation under this subpart. 

No person may export any class II 

controlled substance produced with 

Article 5 allowances to a non-Article 5 

Party. Every kilogram of a class II 

controlled substance that was produced 

with Article 5 allowances that is 

exported to a non-Article 5 Party 

constitutes a separate violation under 

this subpart. 

* * * * * 

(g) Introduction into interstate 

commerce or use. (1) Effective January 

1, 2010, no person may introduce into 

interstate commerce or use HCFC–141b 

(unless used, recovered, and recycled) 

for any purpose except for use in a 

process resulting in its transformation or 

its destruction; for export to Article 5 

Parties under § 82.18(a); for HCFC–141b 

exemption needs; as a transhipment or 

heel; or for exemptions permitted in 

paragraph (f) of this section. 

(2)(i) Effective January 1, 2010, no 

person may introduce into interstate 

commerce or use HCFC–22 or HCFC– 

142b (unless used, recovered, and 

recycled) for any purpose other than for 

use in a process resulting in its 

transformation or its destruction; for use 

as a refrigerant in equipment 

manufactured before January 1, 2010; 

for export to Article 5 Parties under 

§ 82.18(a); as a transhipment or heel; or 

for exemptions permitted in paragraph 

(f) of this section. 

(ii) Introduction into interstate 

commerce and use of HCFC–22 is not 

subject to the prohibitions in paragraph 

(g)(2)(i) of this section if the HCFC–22 

is for use in medical equipment prior to 

January 1, 2015; for use in thermostatic 

expansion valves prior to January 1, 

2015; or for use as a refrigerant in 

appliances manufactured before January 

1, 2012, provided that the components 

are manufactured prior to January 1, 

2010, and are specified in a building 

permit or a contract dated before 


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January 1, 2010, for use on a particular 

project. 

(3) Effective January 1, 2015, no 

person may introduce into interstate 

commerce or use HCFC–141b (unless 

used, recovered, and recycled) for any 

purpose other than for use in a process 

resulting in its transformation or its 

destruction; for export to Article 5 

Parties under § 82.18(a), as a 

transhipment or heel; or for exemptions 

permitted in paragraph (f) of this 

section. 

(4) Effective January 1, 2015, no 

person may introduce into interstate 

commerce or use any class II controlled 

substance not governed by paragraphs 

(g)(1) through (3) of this section (unless 

used, recovered, and recycled) for any 

purpose other than for use in a process 

resulting in its transformation or its 

destruction; for use as a refrigerant in 

equipment manufactured before January 

1, 2020; for export to Article 5 Parties 

under § 82.18(a); as a transhipment or 

heel; or for exemptions permitted in 

paragraph (f) of this section. 

(5) Effective January 1, 2030, no 

person may introduce into interstate 

commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than for 

use in a process resulting in its 

transformation or its destruction; for 

export to Article 5 Parties under 

§ 82.18(a); as a transhipment or heel; or 

for exemptions permitted in paragraph 

(f) of this section. 

(6) Effective January 1, 2040, no 

person may introduce into interstate 

commerce or use any class II controlled 

substance (unless used, recovered, and 

recycled) for any purpose other than for 

use in a process resulting in its 

transformation or its destruction, as a 

transhipment or heel, or for exemptions 

permitted in paragraph (f) of this 

section. 

* * * * * 

■ 4. Revise § 82.16(a) to read as follows: 

§ 82.16 Phaseout schedule of class II 

controlled substances. 

(a) In each control period as indicated 

in the following table, 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: 

Control period Percent of 

HCFC–141b 

Percent of 

HCFC–22 

Percent of 

HCFC–142b 

Percent of 

HCFC–123 

Percent of 

HCFC–124 

Percent of 

HCFC–225ca 

Percent of 

HCFC–225cb 

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 38 .0 0 .47 125 125 125 125 

2012 ......................... 0 34 .1 0 .47 125 125 125 125 

2013 ......................... 0 30 .1 0 .47 125 125 125 125 

2014 ......................... 0 26 .1 0 .47 125 125 125 125 

* * * * * 

■ 5. Revise § 82.17 to read as follows: 

§ 82.17 Apportionment of baseline 

production allowances for class II 

controlled substances. 

Effective January 1, 2010, the 

following persons are apportioned 

baseline production allowances for 

HCFC–22, HCFC–141b, HCFC–142b, 

HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb, as set forth in the 

following table: 

Person Controlled substance Allowances (kg) 

AGC Chemicals Americas ......................................................................................... HCFC–225ca ........................................... 266,608 

HCFC–225cb ........................................... 373,952 

Arkema ...................................................................................................................... HCFC–22 ................................................. 28,219,223 

HCFC–141b ............................................. 24,647,925 

HCFC–142b ............................................. 16,131,096 

DuPont ....................................................................................................................... HCFC–22 ................................................. 42,638,049 

HCFC–124 ............................................... 2,269,210 

Honeywell .................................................................................................................. HCFC–22 ................................................. 37,378,252 

HCFC–141b ............................................. 28,705,200 

HCFC–142b ............................................. 2,417,534 

HCFC–124 ............................................... 1,759,681 

MDA Manufacturing ................................................................................................... HCFC–22 ................................................. 2,383,835 

Solvay Solexis ........................................................................................................... HCFC–142b ............................................. 6,541,764 

■ 6. Amend § 82.18 by revising 

paragraphs (a) and (b) to read as follows: 

§ 82.18 Availability of production in 

addition to baseline production allowances 

for class II controlled substances. 

(a) Article 5 allowances. (1) Effective 

January 1, 2003, a person apportioned 

baseline production allowances for 

HCFC–141b, HCFC–22, or HCFC–142b 

under § 82.17 is also apportioned 

Article 5 allowances, equal to 15 

percent of their baseline production 

allowances, for the specified HCFC for 

each control period up until December 

31, 2009, to be used for the production 

of the specified HCFC for export only to 

foreign states listed in Annex 4 of 

Appendix C to this subpart. 

(2) Effective January 1, 2010, a person 

apportioned baseline production 

allowances under § 82.17 for HCFC– 

141b, HCFC–22, or HCFC–142b is also 

apportioned Article 5 allowances, equal 

to 10 percent of their baseline 

production allowances, for the specified 


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HCFC for each control period up until 

December 31, 2019, to be used for the 

production of the specified HCFC for 

export only to foreign states listed in 

Annex 4 of Appendix C to this subpart. 

(3) Effective January 1, 2015, a person 

apportioned baseline production 

allowances under § 82.17 for HCFC–123, 

HCFC–124, HCFC–225ca, and HCFC– 

225cb is also apportioned Article 5 

allowances, equal to 10 percent of their 

baseline production allowances, for the 

specified HCFC for each control period 

up until December 31, 2019, to be used 

for the production of the specified 

HCFC for export only to foreign states 

listed in Annex 4 of Appendix C to this 

subpart. 

(b) Export Production Allowances. (1) 

Effective January 1, 2003, a person 

apportioned baseline production 

allowances for HCFC–141b under 

§ 82.17 is also apportioned export 

production allowances, equal to 100 

percent of their baseline production 

allowances, for HCFC–141b for each 

control period up until December 31, 

2009, to be used for the production of 

HCFC–141b for export only, in 

accordance with this section. 

(2) [Reserved] 

* * * * * 

■ 7. Section 82.19 is revised to read as 

follows: 

§ 82.19 Apportionment of baseline 

consumption allowances for class II 

controlled substances. 

Effective January 1, 2010, the 

following persons are apportioned 

baseline consumption allowances for 

HCFC–22, HCFC–141b, HCFC–142b, 

HCFC–123, HCFC–124, HCFC–225ca, 

and HCFC–225cb, as set forth in the 

following table: 

Person Controlled substance Allowances (kg) 

ABCO Refrigeration Supply ....................................................................................... HCFC–22 ................................................. 279,366 

AGC Chemicals Americas ......................................................................................... HCFC–225ca ........................................... 285,328 

HCFC–225cb ........................................... 286,832 

Altair Partners ............................................................................................................ HCFC–22 ................................................. 302,011 

Arkema ...................................................................................................................... HCFC–22 ................................................. 29,524,481 

HCFC–141b ............................................. 25,405,570 

HCFC–142b ............................................. 16,672,675 

HCFC–124 ............................................... 3,719 

Carrier ........................................................................................................................ HCFC–22 ................................................. 54,088 

Condor Products ........................................................................................................ HCFC–22 ................................................. 74,843 

HCFC–124 ............................................... 3,746 

Continental Industrial Group ...................................................................................... HCFC–141b ............................................. 20,315 

Coolgas, Inc ............................................................................................................... HCFC–141b ............................................. 16,097,869 

HCFC–123 ............................................... 20,000 

Coolgas Investment Property .................................................................................... HCFC–22 ................................................. 590,737 

Discount Refrigerants ................................................................................................ HCFC–22 ................................................. 375,328 

HCFC–141b ............................................. 994 

DuPont ....................................................................................................................... HCFC–22 ................................................. 38,814,862 

HCFC–141b ............................................. 9,049 

HCFC–142b ............................................. 52,797 

HCFC–123 ............................................... 1,877,042 

HCFC–124 ............................................... 743,312 

H.G. Refrigeration Supply ......................................................................................... HCFC–22 ................................................. 40,068 

Honeywell .................................................................................................................. HCFC–22 ................................................. 35,392,492 

HCFC–141b ............................................. 20,749,489 

HCFC–142b ............................................. 1,315,819 

HCFC–124 ............................................... 1,284,265 

ICC Chemical Corp ................................................................................................... HCFC–141b ............................................. 81,225 

ICOR .......................................................................................................................... HCFC–124 ............................................... 81,220 

Ineos Fluor Americas ................................................................................................ 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 

HCFC–123 ............................................... 72,600 

HCFC–124 ............................................... 50,380 

Perfect Technology Center, LP ................................................................................. HCFC–123 ............................................... 9,100 

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 ................................................. 413,509 

HCFC–141b ............................................. 3,940,115 

Solvay Solexis ........................................................................................................... HCFC–142b ............................................. 3,047,386 

Tulstar Products ........................................................................................................ HCFC–141b ............................................. 89,913 

HCFC–123 ............................................... 34,800 

HCFC–124 ............................................... 229,582 

USA Refrigerants ....................................................................................................... HCFC–22 ................................................. 14,865 


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■ 8. Revise Annex 4 to Appendix C of 

subpart A of part 82 to read as follows: 

Appendix C to Subpart A of Part 82— 

Parties to the Montreal Protocol, and 

Nations Complying With, But Not 

Parties to, the Protocol 

* * * * * 

Annex 4 to Appendix C of Subpart A: 

Nations That Are Parties to the Montreal 

Protocol and Are Operating Under Article 

5(1) 

List of Article 5 Parties 

1. Afghanistan 

2. Albania 

3. Algeria 

4. Angola 

5. Antigua & Barbuda 

6. Argentina 

7. Armenia 

8. Bahamas 

9. Bahrain 

10. Bangladesh 

11. Barbados 

12. Belize 

13. Benin 

14. Bhutan 

15. Bolivia 

16. Bosnia and Herzegovina 

17. Botswana 

18. Brazil 

19. Brunei Darussalam 

20. Burkina Faso 

21. Burundi 

22. Cambodia 

23. Cameroon 

24. Cape Verde 

25. Central African Republic 

26. Chad 

27. Chile 

28. China 

29. Colombia 

30. Comoros 

31. Congo 

32. Congo, Democratic Republic of 

33. Cook Islands 

34. Cost Rica 

35. Coˆte d’Ivoire 

36. Croatia 

37. Cuba 

38. Djibouti 

39. Dominica 

40. Dominican Republic 

41. Ecuador 

42. Egypt 

43. El Salvador 

44. Equatorial Guinea 

45. Eritrea 

46. Ethiopia 

47. Fiji 

48. Gabon 

49. Gambia 

50. Georgia 

51. Ghana 

52. Grenada 

53. Guatemala 

54. Guinea 

55. Guinea Bissau 

56. Guyana 

57. Haiti 

58. Honduras 

59. India 

60. Indonesia 

61. Iran, Islamic Republic of 

62. Iraq 

63. Jamaica 

64. Jordan 

65. Kenya 

66. Kiribati 

67. Korea, People’s Democratic Republic of 

68. Korea, Republic of 

69. Kuwait 

70. Kyrgyzstan 

71. Lao People’s Democratic Republic 

72. Lebanon 

73. Lesotho 

74. Liberia 

75. Libyan Arab Jamahiriya 

76. Madagascar 

77. Malawi 

78. Malaysia 

79. Maldives 

80. Mali 

81. Marshall Islands 

82. Mauritania 

83. Mauritius 

84. Mexico 

85. Micronesia, Federal States of 

86. Moldova 

87. Mongolia 

88. Montenegro 

89. Morocco 

90. Mozambique 

91. Myanmar 

92. Namibia 

93. Nauru 

94. Nepal 

95. Nicaragua 

96. Niger 

97. Nigeria 

98. Niue 

99. Oman 

100. Pakistan 

101. Palau 

102. Panama 

103. Papua New Guinea 

104. Paraguay 

105. Peru 

106. Philippines 

107. Qatar 

108. Rwanda 

109. Saint Kitts and Nevis 

110. Saint Lucia 

111. Saint Vincent & the Grenadines 

112. Samoa 

113. Sao Tome and Principe 

114. Saudi Arabia 

115. Senegal 

116. Serbia 

117. Seychelles 

118. Sierra Leone 

119. Singapore 

120. Solomon Islands 

121. Somalia 

122. South Africa 

123. Sri Lanka 

124. Sudan 

125. Suriname 

126. Swaziland 

127. Syrian Arab Republic 

128. Tanzania, United Republic of 

129. Thailand 

130. The Former Yugoslav Republic of 

Macedonia 

131. Timor-Leste 

132. Togo 

133. Tonga 

134. Trinidad and Tobago 

135. Tunisia 

136. Turkey 

137. Turkmenistan 

138. Tuvalu 

139. Uganda 

140. United Arab Emirates 

141. Uruguay 

142. Vanuatu 

143. Venezuela 

144. Viet Nam 

145. Yemen 

146. Zambia 

147. Zimbabwe 

■ 9. Revise Appendix E to subpart A of 

part 82 to read as follows: 

Appendix E to Subpart A of Part 82— 

Article 5 Parties 

Afghanistan, Albania, Algeria, Angola, 

Antigua & Barbuda, Argentina, Armenia, 

Bahamas, Bahrain, Bangladesh, Barbados, 

Belize, Benin, Bhutan, Bolivia, Bosnia and 

Herzegovina, Botswana, Brazil, Brunei 

Darussalam, Burkina Faso, Burundi, 

Cambodia, Cameroon, Cape Verde, Central 

African Republic, Chad, Chile, China, 

Colombia, Comoros, Congo, Congo, 

Democratic Republic of, Cook Islands, Cost 

Rica, Coˆte d’Ivoire, Croatia, Cuba, Djibouti, 

Dominica, Dominican Republic, Ecuador, 

Egypt, El Salvador, Equatorial Guinea, 

Eritrea, Ethiopia, Fiji, Gabon, Gambia, 

Georgia, Ghana, Grenada, Guatemala, Guinea, 

Guinea Bissau, Guyana, Haiti, Honduras, 

India, Indonesia, Iran, Islamic Republic of, 

Iraq, Jamaica, Jordan, Kenya, Kiribati, Korea, 

People’s Democratic Republic of, Korea, 

Republic of, Kuwait, Kyrgyzstan, Lao 

People’s Democratic Republic, Lebanon, 

Lesotho, Liberia, Libyan Arab Jamahiriya, 

Madagascar, Malawi, Malaysia, Maldives, 

Mali, Marshall Islands, Mauritania, 

Mauritius, Mexico, Micronesia, Federal 

States of, Moldova, Mongolia, Montenegro, 

Morocco, Mozambique, Myanmar, Namibia, 

Nauru, Nepal, Nicaragua, Niger, Nigeria, 

Niue, Oman, Pakistan, Palau, Panama, Papua 

New Guinea, Paraguay, Peru, Philippines, 

Qatar, Rwanda, Saint Kitts and Nevis, Saint 

Lucia, Saint Vincent & the Grenadines, 

Samoa, Sao Tome and Principe, Saudi 

Arabia, Senegal, Serbia, Seychelles, Sierra 

Leone, Singapore, Solomon Islands, Somalia, 

South Africa, Sri Lanka, Sudan, Suriname, 

Swaziland, Syrian Arab Republic, Tanzania, 

United Republic of, Thailand, The Former 

Yugoslav Republic of Macedonia, TimorLeste, Togo, Tonga, Trinidad and Tobago, 

Tunisia, Turkey, Turkmenistan, Tuvalu, 

Uganda, United Arab Emirates, Uruguay, 

Vanuatu, Venezuela, Viet Nam, Yemen, 

Zambia, Zimbabwe. 

[FR Doc. E9–29569 Filed 12–14–09; 8:45 am] 

BILLING CODE 6560–50–P 


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