[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37429-37432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17904]
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[[Page 37430]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-5535-6]
RIN 2060-AG19
Protection of Stratospheric Ozone: Reconsideration of the Ban on
Fire Extinguishers Containing HCFCs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Through this action EPA is proposing to amend 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 is proposing this exemption based
on new information. EPA believes an exemption is necessary to ensure
that an effective substitute to halon, a class I ozone depleter, is
readily available.
EPA believes that this proposed amendment, while decreasing the
regulatory burden on HCFC extinguishant manufacturers and distributors,
will not compromise the goals of protecting public health and the
environment.
DATES: Comments on this proposal must be received by August 19, 1996 at
the address below. A public hearing, if requested, will be held in
Washington, DC. If such a hearing is requested, it will be held on
August 2, 1996, at 9 a.m., and the comment period would then be
extended to September 3, 1996. Anyone who wishes to request a hearing
should call Cindy Newberg at 202/233-9729 by July 25, 1996. Interested
persons may contact the Stratospheric Protection Hotline at 1-800-296-
1996 to learn if a hearing will be held and to obtain the date and
location of any hearing. Any hearing will be strictly limited to the
subject matter of this proposal, the scope of which is discussed below.
The proposed effective date for the changes to the regulatory
language would be 30 days after publication of the final rulemaking in
the Federal Register.
ADDRESSES: Comments on this proposal must be submitted to the Air
Docket Office, Public Docket No. A-93-20 VIII, Waterside Mall (Ground
Floor) Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460 in room M-1500. Additional comments and materials supporting
this rulemaking are contained in Public Docket No. A-93-20. Dockets may
be inspected from 8 a.m. until 5:30 p.m., Monday through Friday. A
reasonable fee may be charged for copying docket materials.
If a public hearing is convened, it will be held at 501 3rd Street,
NW., first floor conference room, Washington, DC.
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
IV. Summary of Supporting Analysis
A. Executive Order 12866
B. Unfunded Mandates Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
I. Regulated Entities
Entities potentially 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
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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.
Section 610(d)(1) states that after January 1, 1994, ``it is
unlawful for any person to sell or distribute, or offer for sale or
distribution, in interstate commerce (A) any aerosol product or other
pressurized dispenser which contains a class II substance; or (B) any
plastic foam product which contains, or is manufactured with, a class
II substance.'' Section 610(d)(2) authorizes EPA to grant certain
exceptions and section 610(d)(3) creates exclusions from the class II
ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant exceptions
from the class II ban for aerosols and other pressurized dispensers
where ``the use of the aerosol product or pressurized dispenser is
determined by the Administrator to be essential as a result of
flammability or worker safety concerns,'' and where ``the only
available alternative to use of a class II substance is use of a class
I substance which legally could be substituted for such class II
substance.'' Section 610(d)(3) states that the ban of class II
substances in plastic foam products shall not apply to ``foam
insulation products'' or ``an integral skin, rigid, or semi-rigid foam
utilized to provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute substance
(other than a class I or class II substance) is practicable for
effectively meeting such standards.'' 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
In the rulemaking, the Agency exempted from the Class II Ban the
use of HCFCs in portable fire extinguishers
[[Page 37431]]
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 the Class II Ban became effective, EPA has learned new
information as to significant complications in determining broad
suitability of substitute fire extinguishants. EPA has received two
petitions requesting that the Agency reconsider the Class II Ban as it
relates to portable fire extinguishers. The first request for
reconsideration was submitted by Paul Huston and Associates on March
10, 1995. The second petition was submitted by Alcalde & Fay on behalf
of Halotron, Incorporated, and DuPont on June 22, 1995. Through these
petitions, subsequent verbal and written communications, and additional
research by the Agency, EPA has learned new and compelling information
concerning the availability of fire extinguishants suitable to replace
halon and CFCs in streaming applications.
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 used 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 constraints, 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.
EPA states that ``suitability of the agent implies that an agent is
commercially available, that a fire will be extinguished quickly, and
will result in minimum degradation of the products being protected from
the fire'' (58 FR 69648). EPA has interpreted commercial availability
to mean that the product is widely available for the desired
application and that its use is not precluded in certain situations
(i.e., because some local fire codes have not yet approved its use). In
addition to commercial availability, the portable fire extinguisher
must adequately extinguish the fire without causing undue harm to
persons and not destroy the property it is intended to protect. For
many typical commercial scenarios where halon was used in the past,
only clean agents such as HCFCs can achieve these fire protection
goals.
Suitability is interpreted to apply broadly throughout the nation,
such that no entity has precluded that product's use through regulation
or lack of regulatory modification. Without consistent standards
regarding the use of a substitute in place across the country, EPA
currently believes it would be nearly impossible to responsibly
determine that a substitute used in a non-residential portable fire
extinguisher was ``suitable'' and thus, that such HCFC fire
extinguishers should be subject to the ban.
A logical question one may ask is, ``How can EPA adequately
determine acceptability of potential fire extinguishant substitutes
pursuant to Section 612 of the Clean Air Act and also believe itself
unable to determine suitable fire extinguishant substitutes pursuant to
Section 610(d)?'' The answer lies in the degree of burden entailed in
EPA's determination. 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, on the
other hand, 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. The rulemakings implementing Section 612 and establishing the
Significant New Alternatives Policy (SNAP) Program indicate that EPA
does not review a substitute's ability to effectively perform in the
same manner as the ozone depleter. EPA believes that banning a
substance (as required under Sec. 610(d)) used in the protection of
life and property, based on confusing information regarding the
suitability of the substitute, would be irresponsible.
When EPA promulgated the initial rulemaking that exempted products
from the class II ban in 1993, potential exemptions for other types of
pressurized dispensers that were considered and ultimately denied
usually were denied because there was a suitable substitute already
available and already in use for either the same or for a similar
application. Several of the substitutes were not-in-kind substitutes
and others required significant changes prior to replacing the ozone-
depleting substance with the substitute. Significantly, most of the
identified substitutes for these pressurized dispensers were proven
alternatives for the ozone depleter already used by others for a
similar endeavor. However, for portable fire extinguishers used in non-
residential applications, the potential non-ozone-depleting
replacements that are also clean agents, are not yet in use.
Many of those seeking to replace halon continue to require clean
agents. EPA states that ``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). EPA believes where non-gaseous agents can be used, appropriate
consideration for these substitutes already occurs. However, the need
for the continued availability of gaseous agents commonly referred to
as clean agents was the basis for the limited exemption for HCFCs
contained in the initial rulemaking. EPA intended for this exemption to
expire after additional clean agents became available. However, as
stated above, SNAP does not review the efficacy of the acceptable
substitutes; therefore, EPA cannot rely on SNAP review to determine the
efficacy of potential clean agents for purposes of Section 610(d).
Furthermore, since the substitutes are not yet in use, EPA cannot rely
on the findings of other users.
Given that suitability and commercial availability cannot be
determined adequately for purposes of banning this product at this
time, today's action proposes replacing the limited exemption that
already exists with a
[[Page 37432]]
total exemption for portable fire extinguishers for non-residential
applications from the Class II Ban at this time. This change in the
regulatory language would simply serve to clarify the actual situation
for the regulated community and provide a consistent determination
regarding suitability based on current information. 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.
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. EPA requests comment on this proposal.
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 proposed action to
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 why
this alternative is not selected or the selection of this alternative
is inconsistent with law.
Because this NPRM 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 NPRM proposes to
provide relieve by permitting the use of 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 proposed 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 Act
EPA has determined that is not necessary to prepare a regulatory
flexibility analysis in connection with this proposed rule. Any impact
this proposed rule will have on small entities will be to provide
relief from regulatory burdens. EPA has determined that this proposed
rule will not have a significant adverse economic impact on a
substantial number of small businesses.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Exports, Government procurement,
Imports, Labeling, Reporting and recordkeeping requirements.
Dated: July 3, 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.
Sec. 82.62 [Amended]
2. Section 82.62 is amended by removing paragraphs (j) and (k).
Sec. 82.68 [Amended]
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. 96-17904 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-P
