[Federal Register Volume 68, Number 17 (Monday, January 27, 2003)]
[Proposed Rules]
[Pages 4012-4015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1624]



  Federal Register / Vol. 68, No. 17 / Monday, January 27, 2003 / 
Proposed Rules  

[[Page 4012]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7443-5]
RIN 2060-AG12


Protection of Stratospheric Ozone: Listing of Substitutes for 
Ozone-Depleting Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to list 
three substitutes for ozone-depleting substances (ODSs) in the fire 
suppression and explosion protection sector as acceptable (subject 
either to narrowed use limits or use conditions) under the U.S. 
Environmental Protection Agency's (EPA) Significant New Alternatives 
Policy (SNAP) program. SNAP implements section 612 of the Clean Air 
Act, as amended in 1990, which requires EPA to evaluate substitutes for 
ODSs to reduce overall risk to human health and the environment.
    Elsewhere in today's Federal Register, EPA is taking this action as 
a direct final rule without prior proposal because EPA views this as a 
noncontroversial revision and anticipates no adverse comments. A 
rationale for this action is set forth in the preamble to the direct 
final rule.
    If we receive no adverse comments and no requests for public 
hearings in response to this action, we will take no further activity 
in relation to this rule. If EPA receives adverse comments or a request 
for public hearing, we will withdraw the direct final rule and review 
any comments in accordance with this proposal. If a public hearing is 
requested, EPA will provide notice in the Federal Register as to the 
location, date, and time. Any parties interested in commenting on this 
action should do so at that this time.

DATES: Comments must be received in writing by February 26, 2003.

ADDRESSES: Public comments and data specific to this action should be 
sent to Docket A-2002-08, U.S. Environmental Protection Agency, OAR 
Docket and Information Center, 1200 Pennsylvania Avenue NW., Mailcode 
6102T, Washington, DC 20460. The docket is physically located at 1301 
Constitution Avenue NW., Room B108, Washington, DC. The docket may be 
inspected between 8 a.m. and 5:30 p.m. on weekdays. Telephone (202) 
566-1742; fax (202) 566-1741. As provided in 40 CFR part 2, a 
reasonable fee may be charged for photocopying. To expedite review, a 
second copy of the comments should be sent to Bella Maranion at the 
address listed below under FOR FURTHER INFORMATION CONTACT. Information 
designated as Confidential Business Information (CBI) under 40 CFR part 
2, subpart 2, must be sent directly to the contact person for this 
notice. However, the Agency is requesting that all respondents submit a 
non-confidential version of their comments to the docket as well.

FOR FURTHER INFORMATION CONTACT: Bella Maranion at (202) 564-9749 or 
fax (202) 565-2155, U.S. Environmental Protection Agency, Global 
Programs Division, Mail Code 6205J, Washington, DC 20460. Overnight or 
courier deliveries should be sent to the office location at 501 3rd 
Street, NW., 4th floor, Washington, DC 20001. Also contact the 
Stratospheric Protection Hotline at (800) 296-1996 and EPA's Ozone 
Depletion World Wide Web site at http://www.epa.gov/ozone/snap/index.html.

SUPPLEMENTARY INFORMATION: See additional information, pertaining to 
this action, provided in the Direct Final action of the same title 
located in today's Federal Register.

I. EPA Proposal

    EPA would add three fire suppression agents to the list of 
acceptable substitutes, subject to narrowed use limits or use 
conditions, for halons which are ozone-depleting substances widely used 
in the fire protection sector. The regulations implementing the SNAP 
program are codified at 40 CFR part 82, subpart G. The appendices to 
subpart G list substitutes for ODSs that are unacceptable or that have 
restrictions imposed on their use. Today's action would modify the 
appendices to subpart G to include these new substitutes.
    The direct final rule will be effective on March 28, 2003, without 
further notice unless we receive adverse comment (or a request for a 
public hearing) by February 26, 2003. If EPA receives adverse comment, 
we will publish a timely withdrawal in the Federal Register informing 
the public that this rule will not take effect. EPA will address all 
public comments in a subsequent final rule based on this proposed rule. 
We will not institute a second public comment period on this action. 
Any parties interested in commenting must do so at this time.
    You may claim that information in your comments is confidential 
business information, as allowed by 40 CFR part 2. If you submit 
comments and include information that you claim as confidential 
business information, we request that you submit them directly to Bella 
Maranion in two versions: one clearly marked ``Public'' to be filed in 
the public docket, and the other marked ``Confidential'' to be reviewed 
by authorized government personnel only.

II. Administrative Requirements

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 result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, 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.
    Pursuant to the terms of Executive Order 12866, OMB notified EPA on 
October 3, 2002, that it considers this a ``non-significant regulatory 
action'' within the meaning of the Executive Order and, therefore, did 
not require EPA to submit this action to OMB for review.

B. Paperwork Reduction Act

    EPA has determined that this proposed rule contains no information 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., that are not already approved by the Office of Management and 
Budget (OMB). OMB has reviewed and approved two Information Collection 
Requests (ICRs) by EPA which are described in the March 18, 1994 
rulemaking (59 FR 13044, at 13121, 13146-13147) and in the October 16, 
1996 rulemaking (61 FR 54030, at 54038-54039). These ICRs included five 
types of respondent reporting and recordkeeping activities pursuant to 
SNAP regulations: submission of a SNAP petition, filing a SNAP/TSCA 
Addendum, notification for test

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marketing activity, recordkeeping for substitutes acceptable subject to 
narrowed use limits, and recordkeeping for small volume uses. The OMB 
Control Numbers are 2060-0226 and 2060-0350.
    Copies of the ICR document(s) may be obtained from Sandy Farmer, by 
mail at the Office of Environmental Information, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822); 1200 
Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at 
[email protected], or by calling (202) 566-1676. A copy may also be 
downloaded off the Internet at http://www.epa.gov/icr. Include the ICR 
and/or OMB number in any correspondence.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this proposed rule. EPA has 
also determined that this rule will not have a significant economic 
impact on a substantial number of small entities. For purposes of 
assessing the impact of today's rule on small entities, small entities 
are defined as (1) a small business that produces or uses fire 
suppressants as total flooding agents with 500 or fewer employees or 
total annual receipts of $5 million or less; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Use of halon 1211 as a streaming agent in portable extinguishers 
has historically been in industrial and commercial applications with 
limited residential uses. Residential users typically use lower cost 
alternatives such as dry chemical and carbon dioxide hand-held 
extinguishers. The newer chemical agents compete for specialized 
segments of this market where lower cost alternatives such as dry 
chemical and carbon dioxide extinguishers may not be an appropriate 
option. With respect to EPA's decision on H Galen HOPES, EPA is finding 
it acceptable as a streaming agent in nonresidential areas as requested 
by the manufacturer. Moreover, the manufacturer of the new fire 
suppressant, H Galen HOPES, has not yet sold it, so today's action does 
not affect, in any way, current usage. The manufacturer of the new fire 
suppressant streaming agent, C6-perfluoroketone, is selling it in the 
non-residential market, so today's action does not affect, in any way, 
current usage. EPA is providing additional options for any entity, 
including small entities, to replace halon 1211 in streaming 
applications.
    Use of halon 1301 total flooding systems have historically been in 
the protection of essential electronics, civil aviation, military 
mobile weapon systems, oil and gas and other process industries, and 
merchant shipping with smaller segments of use including libraries, 
museums, and laboratories. The majority of halon 1301 system owners 
continue to maintain and refurbish existing systems since halon 1301 
supplies continue to be available in the US. Owners of new facilities 
make up the market for the new alternative agent systems that are 
available and may also consider employing other available fire 
protection options including new, improved technology for early warning 
and smoke detection. The primary party intending to use HFC227-BC as a 
total flooding agent is the U.S. Army, which is not a small entity. The 
Army is currently testing this fire suppressant in its new armored 
vehicles, so the regulatory restrictions imposed in today's rule will 
not affect current use. Thus, EPA is providing more options to any 
entity, including small entities, to use this substitute as a 
replacement for halon 1301 in total flooding applications.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. By 
introducing new substitutes, today's rule gives additional flexibility 
to small entities that are concerned with fire suppression. EPA also 
has worked with the National Fire Protection Association, which 
conducts regular outreach with, and involves small state, local, and 
tribal governments in developing and implementing relevant fire 
protection standards and codes.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector.
    Under section 202 of the UMRA, EPA generally must prepare a written 
statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year. Before 
promulgating an EPA rule for which a written statement is needed, 
section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Section 204 of the UMRA requires the 
Agency to develop a process to allow elected state, local, and tribal 
government officials to provide input in the development of any 
proposal containing a significant Federal intergovernmental mandate.

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    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. Because this rule imposes no 
enforceable duty on any State, local or tribal government it is not 
subject to the requirements of sections 202 and 205 of the UMRA. EPA 
has also determined that this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments; 
therefore, EPA is not required to develop a plan with regard to small 
governments under section 203. Finally, because this rule does not 
contain a significant intergovernmental mandate, the Agency is not 
required to develop a process to obtain input from elected state, 
local, and tribal officials under section 204.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule will provide 
addition options for fire protection subject to safety guidelines in 
industry standards. These standards are typically already required by 
state or local fire codes, and this rule does not require state, local, 
or tribal governments to change their regulations. Thus, Executive 
Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule will provide additional options for fire protection 
subject to safety guidelines in industry standards. These standards are 
typically already required by state or local fire codes, and this rule 
does not require tribal governments to change their regulations. Thus, 
Executive Order 13175 does not apply to this rule.

G. Applicability of Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The acceptability listings in this 
proposed rule primarily apply to the workplace, and thus, do not put 
children at risk disproportionately. This rule is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866 and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children.

H. Executive Order 13211 (Energy Effects)

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. The rule allows 
wider use of substitutes, providing greater flexibility for industry. 
Further, we have concluded that this proposed rule is not likely to 
have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rulemaking involves technical standards. EPA defers to 
existing National Fire Protection Association (NFPA) voluntary 
consensus standards and Occupational Safety and Health Administration 
(OSHA) regulations that relate to the safe use of halon substitutes 
reviewed under SNAP. EPA references the NFPA 2001 Standard on Clean 
Agent Fire Extinguishing Systems, 2000 edition, which provides for 
exposure and safe use of halocarbon and inert gas

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agents used to extinguish fires. Copies of this standard may be 
obtained by calling the NFPA's order telephone number at 1-800-344-3555 
and requesting order number S3-2003-00. In addition, EPA has worked 
extensively in consultation with OSHA to encourage development of 
technical standards to be adopted by voluntary consensus standards 
bodies.

    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

    Dated: January 17, 2003.
Christine Todd Whitman,
Administrator.
[FR Doc. 03-1624 Filed 1-24-03; 8:45 am]
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