[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