[Federal Register Volume 61, Number 234 (Wednesday, December 4, 1996)]
[Rules and Regulations]
[Pages 64424-64427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30867]
[[Page 64423]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 82
Protection of Stratospheric Ozone: Reconsideration of the Ban on Fire
Extinguishers Containing HCFCs; Final Rule
Federal Register / Vol. 61, No. 234 / Wednesday, December 4, 1996 /
Rules and Regulations
[[Page 64424]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-5658-7]
RIN 2060-AG19
Protection of Stratospheric Ozone: Reconsideration of the Ban on
Fire Extinguishers Containing HCFCs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Through this action EPA is amending the Class II Nonessential
Products Ban promulgated under Section 610 of the Clean Air Act
Amendments to provide an exemption for portable fire extinguishing
equipment that contains hydrochlorofluorocarbons (HCFCs) for non-
residential applications. EPA proposed and is today promulgating this
exemption based on new and compelling information. EPA believes an
exemption from the ban on sales and distribution for portable fire
extinguishers used in non-residential applications that contain HCFCs
is necessary to ensure that an effective substitute to halon, a class I
ozone depleter, is readily available.
EPA believes that this amendment, while decreasing the regulatory
burden on HCFC extinguishant manufacturers and distributors, will not
compromise the goals of protecting public health and the environment.
EFFECTIVE DATE: January 3, 1997.
ADDRESSES: Comments and additional supporting materials are contained
in the Air Docket Office, Public Docket No. A-93-20, Waterside Mall
(Ground Floor), Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460 in room M-1500. Dockets may be inspected from 8:00
a.m. until 5:30 p.m., Monday through Friday. A reasonable fee may be
charged for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,
Washington, DC 20460, (202) 233-9729. The Stratospheric Ozone
Information Hotline at 1-800-296-1996 can also be contacted for further
information.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. Regulated Entities
II. Background
III. Portable Fire Extinguishers
A. Background
B. Notice of Proposed Rulemaking
C. Major Comments Received
D. Today's Action
IV. Summary of Supporting Analysis
A. Executive Order 12866
B. Unfunded Mandates Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
V. Submission to Congress and the General Accounting Office
I. Regulated Entities
Entities regulated by this action are those that wish to
manufacturer, sell, or distribute in interstate commerce portable fire
extinguishers that contain hydrochlorofluorocarbons (HCFCs) for non-
residential applications. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Industry.................................. Manufacturers of fire
extinguishants.
Manufacturers and
distributors of portable
fire extinguishers.
Fire protection specialists.
------------------------------------------------------------------------
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
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your company is regulated by this action, you should carefully examine
the applicability criteria contained in Section 610(d) of the Clean Air
Amendments of 1990; discussed in regulations published on December 30,
1993 (58 FR 69638); and discussed below. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
II. Background
In 1993, EPA promulgated a rulemaking to establish regulations that
implemented the statutory ban on nonessential products containing or
manufactured with class II ozone-depleting substances under Section
610(d) of the Clean Air Act Amendments of 1990 (58 FR 69638). This
final rule was developed by EPA to clarify definitions and to provide
exemptions, as authorized under Section 610(d). EPA was not required to
promulgate regulations since the ban was self-executing. The substances
affected by the Class II Ban are plastic foam products, aerosol
products and pressurized dispensers. For additional information
concerning this rulemaking and for a complete list of exempted and
excluded products, the reader should review the final regulations
published in the Federal Register December 30, 1993 (58 FR 69638).
These rules are also codified at 40 CFR Part 82 Subpart C.
III. Portable Fire Extinguishers
A. Background
In the December 30, 1993 initial rulemaking, the Agency exempted
from the Class II Ban the use of HCFCs in portable fire extinguishers
until such time as ``suitable'' substitutes for HCFCs in this
application became ``commercially available'' (58 FR 69646). The
inclusion of fire extinguishers in the class II ban was intended to be
consistent with the class I ban, whereby CFCs used in fire
extinguishers were banned since suitable substitutes were commercially
available (January 15, 1993, 58 FR 4768). EPA distinguished between
total flooding fire suppression systems, which were not identified as
pressurized dispensers, and portable fire extinguishers, which the
Agency interpreted as falling into the category of pressurized
dispensers (58 FR 69647).
Since that final rule was promulgated, EPA learned new information
as to significant complications in determining broad suitability of
substitute fire extinguishants. EPA received two petitions requesting
that the Agency reconsider the Class II Ban as it relates to portable
fire extinguishers. Copies of these petitions are in Air Docket A-93-
20. Through these petitions, subsequent verbal and written
communications with industry representatives, and additional research
by the Agency, EPA learned new and compelling information concerning
the availability of fire extinguishants suitable to replace halon and
CFCs in streaming applications. Based on this information, EPA
determined that it was appropriate to propose revising the Class II Ban
as it relates to portable non-residential fire extinguishers. A Notice
of Proposed Rulemaking (NPRM) was published in the Federal Register on
July 18, 1996 (61 FR 37430).
B. Notice of Proposed Rulemaking
In the NPRM, EPA stated that portable fire extinguishers for
commercial applications present a unique dilemma, for a variety of
reasons. First, their specific intended use is to protect human life
and property. The fire extinguishant is typically discharged
[[Page 64425]]
only in response to a threat to life or property. Second, one type of
extinguishant is not universally suitable for all situations, in that
different types of fires, different environments in which fires are
potentially to be fought, and different types of property being
protected, each dictate a particular set of characteristics, found in
varying degrees in various extinguishants. Third, the fire protection
industry's codes, standards and regulations are extremely complex, such
that states and localities adopt standards parallel to a national
standard at vastly divergent times. Furthermore, some states and
localities have adopted different versions of fire codes. Additionally,
typical insurance industry requirements mandate conformance with local
codes before proper insurance coverage can be obtained.
Given these unique circumstances, for purposes of section 610(d),
determining the suitability and thus, commercial availability, of a
substitute for use generally in portable fire extinguishers for non-
residential applications becomes extremely elusive. Therefore, since
suitability and commercial availability cannot be determined adequately
for purposes of the Class II Ban, the NPRM proposed replacing the
limited exemption that already exists with a total exemption for
portable fire extinguishers for non-residential applications from the
Class II Ban. This change in the regulatory language would simply
reflect the present situation and provide a consistent determination
regarding suitability based on current information for the regulated
community. Furthermore, it would relieve the regulated community from
the burdensome task of monitoring federal, state, and local activities
concerning the review of other substitutes and attempting to assess at
what point the standard of commercial availability has been achieved.
EPA also stated that if at some future date, compelling information
is brought to the Agency's attention indicating that suitable
substitutes are widely available for fire extinguishing applications,
EPA may ultimately conclude that suitable substitutes are commercially
available and undertake appropriate notice and comment procedures to
remove this exemption. A more complete discussion of what information
EPA considered appears in the NPRM.
C. Major Comments Received
EPA requested comment and received fifteen comments on the NPRM.
Thirteen comments supported the proposed changes to the Class II Ban.
Below is a summary of the comments and EPA's responses.
EPA received two comments from other federal agencies, the
Department of Energy (DOE) and the Federal Aviation Administration
(FAA). DOE indicated that to date, its efforts to replace Halon 1211
have been unsuccessful. Several DOE facilities require clean agents.
Therefore, DOE indicated that DOE would benefit from having
extinguishers that use HCFCs available for their special needs. EPA
recognizes that clean agents are used in unique environments.
FAA stated that it has approved the use of HCFC Halotron I, an
American Pacific product, for uses pertaining to airport rescue and
fire fighting, and that this agent is listed as acceptable with use
restrictions under EPA's Significant New Alternatives Policy (SNAP)
Program. FAA stated that it ``concurs with [EPA's] decision to provide
an exemption for the use of hydrachlorufluorcarbons (sic) (HCFC) in
either fixed or mobile portable fire extinguishers under section 610 of
the Clean Air Act.'' EPA would like to clarify that the NPRM was a
proposal, and at that time no final decision had been made. Also, since
the FAA's listing of Halotron I as approved for uses regulated by FAA
was consistent with a separate exemption in the original class II ban,
today's action should not directly affect FAA's decision.
The comment from FAA refers to the SNAP program; therefore, EPA
believes it is appropriate to delineate the differences between SNAP
and the Class II Ban. Under Section 610(d), the burden is on EPA to
actually decide that one kind of extinguishant cannot be exempted from
the ban by determining that the substitute will be just as effective
and available as the replaced extinguishant. Under Section 612, the
burden on EPA is merely to deem substitutes acceptable if they do not
present other health or environmental hazards. The latter task does not
extend to banning those substances that the substitute claims to
replace, nor does it include an examination of efficacy. In addition,
the SNAP use conditions for Halotron I correspond to the regulations
implementing the Class II Ban.
American Pacific Corporation submitted seven separate comments that
were copies of letters sent to EPA's Administrator, Carol Browner, from
members of Congress. Six of these letters were sent during the summer
of 1995 and one letter was sent in April 1996. These letters all
express support for the petition filed on behalf of Halotron and
contained in Air Docket A-93-20. EPA responded to each of these letters
at the time the letters were received.
EPA received one comment from a trade association representing the
airline industry. This comment stated that the process of identifying
suitable substitutes for halon for aircraft application has been very
demanding. Since there are currently no approved ``drop-in''
replacements fully developed for specific aircraft applications, the
commenter stated that it is essential that alternatives such as HCFC
extinguishants be available. EPA understands these concerns.
Two additional commenters indicated their support for the
regulatory changes. The first commenter, a distributor of fire
suppression equipment, agreed with EPA's analysis. The commenter stated
that the fire protection industry is highly regulated; however, these
regulations are not necessarily consistent throughout the country. EPA
agrees that there exists a myriad of fire protection requirements. The
second commenter indicated that for their uses, HCFC-based portable
fire extinguishers would be a suitable substitute to Halon 1211. EPA
recognizes the need to use a clean agent for specific situations.
One commenter, supporting the proposed regulatory changes, stated
that Halotron I had an ozone-depleting potential (ODP) of less than
0.025, 130 times lower than the ODP for Halon 1211. This commenter
suggested that EPA revise the proposed language to include an ODP upper
limit for HCFCs used in portable fire extinguishers. This commenter
suggested that a limit of 0.025 should be established. EPA was
intrigued by this suggested limitation. However, since no other product
exempted from the Class II Ban has an ODP limit, EPA did not believe it
was appropriate to establish such a limit for portable fire
extinguishers. In addition, it is unclear what EPA's authority would be
to impose such a limit, since Sec. 610 only authorizes EPA to create
exemptions where no other substitutes, other than a class I or class II
substance, is available.
One commenter, the National Fire Protection Association (NFPA),
neither endorsed nor opposed the NPRM. Instead, NFPA indicated that it
was in the process of determining the suitability of extinguishers
containing HCFCs and other replacements for non-residential fire
protection applications through its consensus standards writing
process. NFPA requested that EPA consider commenting on a Tentative
Interim Amendment (TIA) that would permit HCFCs and other alternatives
to be used to satisfy the minimum selection and replacement
requirements for any non-residential building requiring fire
extinguishers. EPA
[[Page 64426]]
recognizes the important role NFPA standards play in fire protection.
EPA did not specifically comment on the TIA. EPA believes that the
rulemakings concerning acceptable and unacceptable substitutes for
halon promulgated under Section 612 of the Act, indicates what criteria
EPA considers and how information is evaluated by the Agency.
EPA received one comment opposing the potential exemption. The
commenter, Friends of the Earth (FOE), stated that a permanent
exemption will have adverse impacts on human health and the environment
and is unnecessary, given the availability of effective alternatives.
FOE further stated that this exemption would translate into a
significant chlorine loading burden for the stratosphere over the
coming decades. FOE stated that recent scientific research indicates
the need to take more aggressive action to protect human health and the
environment. Moreover, FOE stated that suitable and commercially
available alternatives are already being used to replace halon fire
extinguishers in a wide variety of settings. FOE stated that water,
carbon dioxide, dry chemicals, and foam agents have been proven safe
and reliable alternatives. Also, recent research has led to the
development and use of new agents and technologies such as inert gas
mixtures, water-mist or fogging systems, and powdered aerosols. Based
on this information, FOE does not believe that EPA should amend the
Class II Ban.
While EPA agrees that it is necessary to take appropriate measures
to eliminate the use of ozone-depleting substances, EPA disagrees with
FOE's analysis regarding the availability of substitutes for all non-
residential fire extinguishing. Since substitutes are not universally
available, Class II substances are currently being used and EPA does
not believe that this amendment will increase such use primarily for
economic reasons. EPA agrees that many uses of HCFCs should be
discouraged, particularly emissive uses. Generally, the Class II ban
has been successful in limiting the uses of HCFCs. However, EPA has not
found any indication that there would be significant human health or
environmental effects associated with modifying the Class II Ban, as
proposed, to revise the current exemption for portable fire
extinguishers. Since substitutes are not universally available, Class
II substances can currently be used and EPA does not believe this rule
amendment will increase such use primarily for economic reasons. As one
commenter stated, the ODP for Halotron I is less than 0.025. EPA
reviewed information concerning the cumulative adjusted chlorine
loading that could be attributed to Halotron I. It appears that given
the narrow use for such a product and its low ODP, any noticeable
increase in the chlorine loading will be negligible. In 1999, 2017,
2024, and 2025, there could be an increase of only 0.001 parts per
billion (ppb) attributed to permitting HCFC portable fire extinguishers
in the United States.
FOE's comment listed various substitutes for halon that are non-
ozone-depleting. EPA agrees that these substitutes should be evaluated
by anyone planning to replace Halon 1211. As EPA stated in the initial
rulemaking and in the July 18, 1996 NPRM, ``non-halocarbon alternatives
to Halon 1211 are already in widespread use in selected commercial
applications because of their effectiveness, and due to the current
regulatory climate, their use has been increasingly adopted wherever
possible'' (58 FR 69647, 61 FR 37431). In the NPRM, EPA further states
that the Agency believes where non-gaseous agents can be used,
appropriate consideration for these substitutes already occurs (61 FR
37431). However, such substitutes are not available for all fire
extinguishing uses and EPA believes that they are already being used
wherever appropriate. In essence, this amendment preserves the status
quo and EPA does not believe it will lead to increased HCFC use.
Therefore, EPA does not believe that the regulatory changes as proposed
would have significant human health or environmental impacts. Moreover,
EPA stated in the NPRM at some future date, if compelling information
is brought to the Agency's attention indicating that suitable
substitutes are widely available, EPA could undertake appropriate
notice and comment procedures to remove this exemption (61 FR 37432).
D. Today's Action
EPA is today promulgating regulatory changes to the Class II Ban.
These changes, consistent with the NPRM, are based on information
regarding the suitability and commercial availability of substitutes
for purposes of the Class II Ban. As proposed, EPA is today replacing
the limited exemption that already exists with a total exemption for
portable fire extinguishers for non-residential applications from the
Class II Ban. If at some future date, compelling information is brought
to the Agency's attention indicating that suitable substitutes are
widely and consistently available for fire extinguishing applications,
EPA may ultimately conclude that suitable substitutes are commercially
available and undertake appropriate notice and comment procedures to
remove this exemption.
IV. Summary of Supporting Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined by OMB and EPA that this action to
promulgate an amendment to the final rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review under the Executive Order.
B. Unfunded Mandates Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') requires that the Agency prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in expenditure by State, local, and tribal governments,
in aggregate, or by the private sector, of $100 million or more in any
one year. Section 203 requires the Agency to establish a plan for
obtaining input from and informing, educating, and advising any small
governments that may be significantly or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the Agency must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The Agency must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the Agency explains
[[Page 64427]]
why this alternative is not selected or the selection of this
alternative is inconsistent with law.
Because this action is estimated to result in the expenditure by
State, local, and tribal governments or private sector of less than
$100 million in any one year, the Agency has not prepared a budgetary
impact statement or specifically addressed the selection of the least
costly, most cost-effective, or least burdensome alternative. Because
small governments will not be significantly or uniquely affected by
this rule, the Agency is not required to develop a plan with regard to
small governments. As discussed in this preamble, this action provides
relief by permitting the use of non-residential portable fire
extinguishers that contain HCFCs; and therefore, would increase the
flexibility in choosing a particular fire extinguishant, thus reducing
the net effect of the burden of part 82 subpart C of the Stratospheric
Protection regulations on regulated entities, including State, local,
and tribal governments or private sector entities.
C. Paperwork Reduction Act
Any information collection requirements in a rule must be submitted
for approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no
informational collection requirements are adopted by today's action,
EPA has determined that the Paperwork Reduction Act does not apply to
this rulemaking and no Information Collection Request document has been
prepared.
D. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this rule. Any impact this rule
will have on small entities will be to provide relief from regulatory
burdens. EPA has determined that this action will not have a
significant adverse economic impact on a substantial number of small
businesses.
V. Submission To Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA submitted 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 General Accounting Office prior to publication of the rule in
today's Federal Register. This rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 82
Aerosols, Administrative practice and procedure, Air pollution
control, Environmental protection, Chemicals, Exports, Government
procurement, Hydrochlorofluorocarbons, Imports, Labeling, Nonessential
products, Portable fire extinguishers, Pressurized dispensers,
Reporting and recordkeeping requirements, Stratospheric ozone layer.
Dated: November 27, 1996.
Carol M. Browner,
Administrator.
Title 40, Code of Federal Regulations, Part 82, is amended to read
as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for Part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
2. Section 82.62 is amended by removing paragraphs (j) and (k).
3. Section 82.68 is amended by removing and reserving paragraphs
(f) and (g).
4. Section 82.70 is amended by revising paragraph (a)(2)(vii) to
read as follows:
Sec. 82.70 Nonessential Class II products and exceptions.
* * * * *
(a) * * *
(2) * * *
(vii) Portable fire extinguishing equipment used for non-
residential applications; and
* * * * *
[FR Doc. 96-30867 Filed 12-3-96; 8:45 am]
BILLING CODE 6560-50-P
