[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]


[[Page 37430]]

40 CFR Part 82

RIN 2060-AG19

Protection of Stratospheric Ozone: Reconsideration of the Ban on 
Fire Extinguishers Containing HCFCs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


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 

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 

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 

                                                Examples of regulated   
                 Category                             entities          
Industry..................................  Manufacturers of fire       
                                            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 
    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 

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,

    Title 40, Code of Federal Regulations, part 82, is amended to read 
as follows:


    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]