Vol. 58 No. 249 Thursday, December 30, 1993 p 69672 (Rule)
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4819-9]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rulemaking.
SUMMARY: In this document EPA is promulgating regulations to
amend the Class I Nonessential Products Ban published in the
Federal Register of January 15, 1993, and promulgated under
section 610(b) of the Clean Air Act, as amended. This action
is being undertaken by EPA in order to exempt certain replacement
parts that were placed into initial inventory prior to April
16, 1992. The substances affected by this proposed rulemaking
include chlorofluorocarbons (CFCs). This action will provide
relief for manufacturers, distributors, and retailers of
replacement
parts that were previously designed and manufactured for specific
product models and that are no longer being produced.
EFFECTIVE DATE: This action will become effective on February
28, 1994 unless EPA is notified by January 31, 1994 that any
person wishes to submit adverse comment. Should EPA receive
such notice, EPA will publish one subsequent notice in the Federal
Register to withdraw this final action and another notice proposing
this action and requesting comments.
ADDRESSES: Comments and materials supporting this rulemaking
are contained in Public Docket No. A-91-39, Waterside Mall (Ground
Floor) Environmental Protection Agency, 401 M Street, SW.,
Washington,
DC 20460 in room M-1500. Dockets may be inspected from 8:30
a.m. until 12 noon, and from 1:30 p.m. until 3 p.m., Monday
through Friday. A reasonable fee may be charged for copying
docket materials. Those wishing to notify EPA of their intent
to submit adverse comments on this rule should contact Cynthia
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.
FOR FURTHER INFORMATION CONTACT:
Cynthia 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. Class I Nonessential Products Ban
II. Today's Revisions to the Class I Nonessential Products Ban
III. Effective Dates
IV. Summary of Supporting Analysis
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
V. Judicial Review
VI. References
I. Class I Nonessential Products Ban
Title VI of the Clean Air Act as amended in 1990 (the Act),
divides ozone-depleting chemicals into two distinct classes.
Class I is comprised of chlorofluorocarbons (CFCs), halons,
carbon tetrachloride and methyl chloroform. Class II is comprised
of hydrochlorofluorocarbons (HCFCs). (See listing notice January
22, 1991; 56 FR 2420.) Section 610(b) requires EPA to promulgate
regulations that ``identify nonessential products that release
class I substances into the environment (including any release
occurring during manufacture, use, storage, or disposal) and
prohibit any person from selling or distributing any such product,
or offering any such product for sale or distribution, in
interstate
commerce.'' The statute requires that at a minimum, EPA must
ban the sale and distribution of CFC-propelled plastic party
streamers and noise horns, and restrict the sale and distribution
of CFC-containing cleaning fluids for electronic and photographic
equipment to commercial users. Final regulations implementing
the Class I Nonessential Products Ban were published in the
Federal Register on January 15, 1993 (58 FR 4768).
In developing regulations to implement the class I ban under
section 610 (a), (b) and (c), EPA took into consideration the
statutory prohibition required by section 610(d) on products
containing or manufactured with class II substances. Section
610(d) provides for a self-executing ban of certain products
made with class II substances that becomes effective on January
1, 1994. Section 610(d) bans the sale or distribution, or offer
for sale or distribution, in interstate commerce of ``any aerosol
product or other pressurized dispenser which contains a class
II substance;'' and ``any plastic foam product which contains,
or is manufactured with, a class II substance.'' Section 610(d)
provides limited criteria for granting exemptions to the Class
II Nonessential Products Ban. The Notice Of Proposed Rulemaking
(NPRM) implementing the class II ban was published in the Federal
Register on September 27, 1993 (58 FR 50463).
During the development of the class I ban, EPA was concerned
about the potential of creating an environmentally adverse
incentive
through implementation of the statutory ban on use of class
II substances in certain products on January 1, 1994, while
permitting the use of the more harmful class I substances in
the same products. Thus, the statutory prohibition in section
610(d) provided direction in choosing products on which to focus
under section 610(b). Therefore, EPA considered those products
for which the use of HCFCs would be eliminated in determining
which products to identify as nonessential under the class I
ban.
Products Subject To The Class I Ban
In . 82.66 of the final regulations implementing the class
I ban, EPA banned the following products which release a class
I substance that are identified as being nonessential:
. Any plastic party streamer or noise horn which is propelled
by a chlorofluorocarbon, including but not limited to-
-String confetti;
-Marine safety horns;
-Sporting event horns;
-Personal safety horns;
-Wall-mounted alarms used in factories or other work areas;
and
-Intruder alarms used in homes or cars.
EPA also restricted the sale of any cleaning fluid for
electronic
and photographic equipment which contains a chlorofluorocarbon,
except for those sold or distributed to a commercial purchaser.
These products were specifically identified as nonessential
in section 610(b) of the Act putting manufacturers on notice
of the upcoming ban. Therefore, the effective date for the
implementation
of the ban on the sale and distribution of the products listed
above was February 16, 1993, thirty days after publication of
the final class I ban.
In addition to these products, the final rule identifies
and bans the following nonessential products based on EPA's
review of various criteria specified in the Act:
. Any plastic flexible or packaging foam product which is
manufactured with or contains a chlorofluorocarbon (except flexible
or packaging foam used in coaxial cable,) including but not
limited to:
-Open cell polyurethane flexible slabstock foam;
-Open cell polyurethane flexible molded foam;
-Open cell rigid polyurethane poured foam;
-Closed cell extruded polystyrene sheet foam;
-Closed cell polyethylene foam; and
-Closed cell polypropylene foam.
. Any aerosol product or other pressurized dispenser, which
contains a chlorofluorocarbon, including but not limited to,
household, industrial, automotive and pesticide uses, except-
-Medical devices listed in 21 CFR 2.125(e);
-Lubricants for pharmaceutical and tablet manufacture;
-Gauze bandage adhesives and adhesive removers;
-Topical anesthetic and vapocoolant products;
-Lubricants, coatings or cleaning fluids for electrical or
electronic
equipment, which contain CFC-11, CFC-12, or CFC-113 for solvent
purposes, but which contain no other CFCs;
-Lubricants, coatings or cleaning fluids used for aircraft
maintenance,
which contain CFC-11 or CFC-113, but which contain no other
CFCs;
-Mold release agents used in the production of plastic and
elastomeric
materials, which contain CFC-11 or CFC-113, but which contain
no other CFCs;
-Spinnerette lubricant/cleaning sprays used in the production
of synthetic fibers, which contain CFC-114, but which contain
no other CFCs;
-Containers of CFCs used as halogen ion sources in plasma etching;
-Document preservation sprays which contain CFC-113, but which
contain no other CFCs; and
-Red pepper bear repellent sprays which contain CFC-113, but
which contain no other CFCs.
While EPA based its determination of nonessential products
in addition to those specified in the statute on a consideration
of section 610 in its entirety, EPA understands that many
producers,
distributors, and retailers may not have been able to foresee
that their products would be considered under the class I ban
until the publication of the NPRM on January 16, 1992. Therefore,
the effective date for banning these products did not coincide
with the effective date for banning products specifically referred
to in section 610(b). These additional products can no longer
be sold or distributed or offered for sale or distribution in
interstate commerce after January 17, 1994, one year from the
publication of the final rule.
II. Today's Revisions to the Class I Nonessential Products Ban
The class I ban provided one year for manufacturers,
distributors
and retailers to eliminate inventories of nonessential products
not specifically listed in the statute. EPA generally believes
that sufficient time was provided under that rulemaking for
manufacturers to alter production and for retailers to liquidate
any remaining stocks of prohibited products. The Agency believes
that the effect of the rulemaking was quite clear after the
publication of the NPRM on January 16, 1992. The NPRM provided
notice to the producers, distributors, and retailers of aerosol
and foam products that such products would be covered by the
class I ban. In general, EPA believes that this period of time
constitutes adequate notice for affected businesses. However,
the Agency has been contacted by manufacturers and suppliers
concerned with the treatment of existing inventories of replacement
parts with long shelf lives made for specific makes or models
of products. These are primarily cases where the environmental
damage resulting from use of a class I substance in a product
occurred during production of the products and the products
were produced prior to the publication of the proposal for the
class I ban.
Prior to the publication of the NPRM on January 16, 1992,
manufacturers may not have known that future regulations would
affect their existing inventories. Furthermore, in cases where
the products were produced prior to the signing of the Clean
Air Act Amendments in November of 1990, manufacturers may not
have been able to predict what if any regulations affecting
their inventories were imminent. However, in most cases, EPA
believes that adequate time was provided in the class I ban
rulemaking to allow for the elimination of most existing
inventories
prior to the established effective dates. The manufacturers
of plastic party streamers and noise horns were on notice of
the upcoming ban since the Clean Air Act Amendments were signed.
The manufacturers of aerosol and foam products were on notice
since the publication of the NPRM on January 16, 1992. However,
EPA recently has learned of a few specific cases, where, because
of very long shelf lives, no set length of time would be practical
for the depletion of the existing inventories. EPA has reviewed
numerous inquires about existing inventories. In the situation
of certain replacement parts, as described below, EPA believes
that authority to provide relief does exist and that the relief
is appropriate.
There are particular types of replacement parts that were
manufactured and are currently stored solely for use in specific
product models. Inventories often remain in existence for more
than ten years. Manufacturers that produced replacement parts
designed solely for a specific product model often manufactured
the part at the same time the original product was manufactured,
and had the replacement parts placed into inventory at that
time, for use in the future. This situation generally occurs
where product models change rapidly or drastically and it would
not be practical to produce replacement parts at a later date.
For example, the American Automobile Manufacturers Association
and the Association of International Automobile Manufacturers
estimate that automobile manufacturers have well over one million
separate part numbers and a significantly larger number of
replacement
parts in inventory. Often replacement parts are only fully
compatible
with one model. Many of the replacement parts used in automobiles
have long shelf lives and are retained in inventory for many
years. Routinely, during production of a vehicle, the manufacturer
will order a ``lifetime buy'' of particular parts needed to
service the vehicle line during the expected life of the model.
For example, an automobile manufacturer may have authorized
the production of surplus car seats during the production of
a particular car model to allow for a lifetime supply of seats
designed for that specific car model. The manufacturer created
a lifetime supply of these seats to be used to replace seats
damaged after the car had been purchased by the ultimate consumer.
Since those parts were produced to meet the specifications
of a particular model, it may not be possible to manufacture
new substitute parts at this time. The suppliers of the equipment
needed to produce the part may no longer exist. If the equipment
does still exist, it may have been greatly reconfigured. Even
in cases where the supplier still exists and has the properly
configured equipment to produce a new replacement part without
CFCs, the cost of redesigning and producing the new replacement
part to replace those in existing inventories may be prohibitively
expensive. Therefore, the class I ban may have the unintended
effect of causing specific products to be scrapped before the
end of their useful lifetime due to the unavailability of
replacements.
This situation may be especially pronounced with replacement
parts for automobiles and other durable goods that by their
very nature have long product lifetimes.
In some cases, particularly for replacement parts that were
originally placed in inventory prior to the signing of the Clean
Air Act Amendments, the manufacturers may not have initially
determined whether each replacement part was manufactured with,
or contains, CFCs. In addition, the manufacturer may not have
initially determined if each replacement part was stored in
packaging material that was manufactured with, or contains,
CFCs.
EPA believes that there are a limited number of replacement
parts placed in inventories prior to April 16, 1992 that are
still in use today that fit this description. Furthermore, the
types of parts and packaging material described above tend to
be made with open cell foam products. In these cases, the
environmental
damage resulting from use of class I substances in such products
would have occurred during the original production of the foam.
Therefore, there would be no additional environmental benefit
associated with the disuse of the replacement parts already
in inventory.
Administrative creation of exemptions from statutory
requirements
are authorized in only limited circumstances, as outlined in
Alabama Power Co., et al. v. Costle, et al., 636 F. 2d 323 (D.C.
Cir 1979). Agencies can create such exemptions only where
necessary,
based on administrative feasibility or the de minimis nature
of the exemption. Through this rule, EPA is granting limited
exemptions from the class I ban based on the de minimis nature
of emissions resulting from use of replacement products produced
and already placed in initial inventory prior to April 16, 1992,
the date 90 days after publication of the NPRM for the original
class I ban. The exemption EPA is authorizing is limited to
existing inventories where the original product and the replacement
parts are no longer manufactured today, the replacement parts
were expressly manufactured for that specific product make or
model, and is based on the de minimis rationale.
EPA believes that the vast majority of replacement parts
with long shelf lives that will be exempted by this action are
parts that either contain an open cell foam component or are
stored in open cell foam packaging material. As to this majority
of affected products, the environmental damage associated with
the class I substance in the product has already occurred at
the time of manufacture. While there may also be a few closed
cell products that meet the narrow definition of exempt products
under this rule, emissions to the environment from use of these
products, once manufactured, will be little or no different
from the releases of class I substances from these products
if removed from commerce and subsequently disposed of. Thus,
where such replacement parts already exist, subjecting products
to the ban will have a de minimis environmental impact. Due
to these circumstances, EPA believes it is appropriate to allow
such products to be used for their intended purpose prior to
disposal.
EPA wishes to clarify that this exemption does not apply
to all product components. Specifically, this exemption would
not apply to those products that are fully compatible with a
full range of products. For example, a reusable pressurized
dispenser may be designed to be removed from one container and
affixed to another container. In addition, in the aftermarket
for automotive parts, there are parts designed to be compatible
with a full range of motor vehicles. These products would not
be consistent with the intended meaning of the exemption for
replacement parts outlined above.
This final action allows for continued sale of any replacement
part meeting the criteria of this narrow exemption to be sold
and distributed or offered for sale or distribution in interstate
commerce after January 17, 1994. ``Placed into initial inventory''
within the meaning of this exemption means that the product
has completed all manufacturing processes, is in all aspects
ready for sale, and has been placed into the manufacturer's
inventory.
April 16, 1992, the date prior to which products must have
been placed into initial inventory to qualify for the exemption,
represents ninety days after the class I NPRM was published
in the Federal Register, allowing time for manufacturers to
revise manufacturing processes to exclude class I substances.
EPA believes that the publication of the January 16, 1992 NPRM
provided sufficient notice of the Agency's intentions with respect
to class I substances that manufacturers should have moved swiftly
to alter their manufacturing processes. Therefore, any replacement
parts that release class I substances into the environment during
manufacture, use, storage, or disposal which are placed into
initial inventory after April 16, 1992 are subject to the class
I ban and cannot be sold or distributed, or offered for sale
or distribution in interstate commerce after January 17, 1994.
To continue selling affected products after January 17, 1994,
the manufacturer or distributor must be able to show that the
product was manufactured and placed into initial inventory by
April 16, 1992. Routine business records, such as shipping forms,
lot numbers, manufacturer date stamps or codes, invoices, or
the like, may be used to identify the date the product was placed
into initial inventory. EPA believes these types of records
are normally kept by manufacturers and distributors of products
affected by today's action and that this final rule will not
require the preparation of any additional records.
III. Effective Dates
This direct-final rulemaking will be effective February 28,
1994 unless EPA receives notice indicating that any person wishes
to submit adverse comment. Should EPA receive such notice, EPA
will withdraw this final action and propose such action with
a request for public comment.
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 entitlements,
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 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. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires
that Federal agencies examine the impacts of their regulations
on small entities. Under 5 U.S.C. 604(a), whenever an agency
is required to publish a general notice of proposed rulemaking,
it must prepare and make available for public comment an initial
regulatory flexibility analysis (RFA). Such an analysis is not
required if the head of an agency certifies that a rule will
not have a significant economic impact on a substantial number
of small entities, pursuant to 5 U.S.C. 605(b).
EPA believes that any impact that this amendment will have
on the regulated community will serve only to provide relief
from otherwise applicable regulations, and will therefore limit
the negative economic impact associated with the regulations
previously promulgated under section 610. An examination of
the impacts on small entities was discussed in the final class
I ban (58 FR 4797). That final rule assessed the impact the
ban may have on small entities and provided examples of such
impacts. In general, such impacts were found to be minimal.
I certify that this amendment to the class I ban will not have
any additional negative economic impacts on any small 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 were implemented
in the final class I regulations and none are being required
by this amendment, EPA has determined that the Paperwork Reduction
Act does not apply to this rulemaking and no Information Collection
Request document has been prepared.
V. Judicial Review
Under section 307(b)(1) of the Act, EPA finds that these
regulations are of national applicability. Accordingly, judicial
review of this action is available only by the filing of a petition
for review in the United States Court of Appeals for the District
of Columbia Circuit within sixty days of publication of this
action in the Federal Register. Under section 307(b)(2), the
requirements of this rule may not be challenged later in judicial
proceedings bought to enforce those requirements.
VI. References
United Nations Environment Programme. Report of the Aerosol
Products, Sterilants, Miscellaneous Uses and Carbon
Tetrachloride
Technical Options Committee (December 1991).
United Nations Environment Programme. Report of the Fourth Meeting
of the Parties to the Montreal Protocol on Substances that
Deplete the Ozone Layer (November 25, 1992).
United Nations Environment Programme. Scientific Assessment
of Ozone Depletion: 1991 (December 17, 1991).
United Nations Environment Programme. Solvents, Coatings and
Adhesives: Technical Options Committee Report (December,
1991).
United Nations Environment Programme. Third Meetings of the
Parties to the Montreal Protocol on Substances that Deplete
the Ozone Layer: UNEP/OzL.Pro.3/L.4/Add.4 (Nairobi, 19-21
June, 1991).
United Nations Environment Programme. 1991 UNEP Flexible and
Rigid Foams Technical Options Report (December 20, 1991).
United States Environmental Protection Agency. Alternative
Formulations
to Reduce CFC Use in U.S. Exempted and Excluded Aerosol
Products (November 1989).
United States Environmental Protection Agency. Background Document
on Aerosol and Pressurized Dispenser Products Containing
Class II Substances (March 1993).
United States Environmental Protection Agency. Background Document
on Identification of Nonessential Products that Release
Class I Substances (November 1992).
United States Environmental Protection Agency. Essential Use
Determination-Revised: Support Document Fully Halogenated
Chlorofluoroalkanes (March 17, 1978).
United States Environmental Protection Agency. Handbook for
Reducing and Eliminating Chlorofluorocarbons in Flexible
Polyurethane Foams (April 1991).
United States Environmental Protection Agency. Manual of Practices
to Reduce and Eliminate CFC-113 Use in the Electronics Industry
(March, 1990).
United States Environmental Protection Agency. Response to Comments
for Proposed Rule on Nonessential Products Made with Class
I Substances (October 30, 1992).
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons, Exports,
Hydrochlorofluorocarbons, Imports, Interstate commerce,
Nonessential
products, Reporting and recordkeeping requirements, Stratospheric
ozone layer.
Dated: December 22, 1993.
Carol M. Browner,
Administrator.
Title 40, Code of Federal Regulations, part 82, is amended
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. Subpart C is revised to read as follows:
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
with Class II Substances
Sec.
82.60 Purpose.
82.62 Definitions.
82.64 Prohibitions.
82.65 Temporary exemptions.
82.66 Nonessential Class I products and exceptions.
82.68 Verification and public notice requirements.
82.70 Nonessential Class II products and exceptions.
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
with Class II Substances
. 82.60 Purpose.
The purpose of this subpart is to implement the requirements
of sections 608 and 610 of the Clean Air Act as amended in 1990
on emission reductions and nonessential products.
. 82.62 Definitions.
For purposes of this subpart:
(a) Chlorofluorocarbon means any substance listed as Class
I group I or Class I group III in 40 CFR part 82, appendix A
to subpart A.
(b) Commercial, when used to describe the purchaser of a
product, means a person that uses the product in the purchaser's
business or sells it to another person and has one of the following
identification numbers:
(1) A federal employer identification number;
(2) A state sales tax exemption number;
(3) A local business license number; or
(4) A government contract number.
(c) Consumer, when used to describe a person taking action
with regard to a product, means the ultimate purchaser, recipient
or user of a product.
(d) Distributor, when used to describe a person taking action
with regard to a product means:
(1) The seller of a product to a consumer or another
distributor;
or
(2) A person who sells or distributes that product in interstate
commerce for export from the United States.
(e) Product means an item or category of items manufactured
from raw or recycled materials which is used to perform a function
or task.
(f) Release means to emit into the environment during the
manufacture, use, storage or disposal of a product.
(g) Class II Substance means any substance designated as
class II in 40 CFR part 82, appendix B to subpart A.
(h) Foam Insulation Product, when used to describe a product
containing or consisting of plastic foam, means a product
containing
or consisting of the following types of foam:
(1) Closed cell rigid polyurethane foam;
(2) Closed cell rigid polystyrene boardstock foam;
(3) Closed cell rigid phenolic foam; and
(4) Closed cell rigid polyethylene foam when such foam is
suitable in shape, thickness and design to be used as a product
that provides thermal insulation around pipes used in heating,
plumbing, refrigeration, or industrial process systems.
(i) Hydrochlorofluorocarbon means any substance listed as
class II in 40 CFR part 82, appendix B to subpart A.
(j) Owner of a boat or marine vessel means any person who
possesses a title, registration or other documentation that
indicates that the person presenting this documentation is in
possession of a marine vessel as defined in 33 CFR part 177.
(k) Owner of a noncommercial aircraft means any person who
possesses a title, registration or other documentation that
indicates that the person presenting this documentation is in
possession of a noncommercial aircraft.
. 82.64 Prohibitions.
(a) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(a).
(b) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products specified in . 82.66(b) to a person who does not
provide proof of being a commercial purchaser, as defined under
. 82.62.
(c) Effective January 17, 1994, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(c)
or . 82.66(d) except as permitted under . 82.65(g).
(d) Except as permitted under . 82.65, effective January
1, 1994, no person may sell or distribute, or offer for sale
or distribution, in interstate commerce any product identified
as being nonessential in . 82.70(a) or . 82.70(c).
(e) Except as permitted under . 82.65, effective January
1, 1994, no person may sell or distribute, or offer to sell
or distribute, in interstate commerce any of the products specified
in . 82.70(b) to a person who does not provide proof of being
a commercial purchaser, as defined under . 82.62.
(f) Except as permitted under . 82.65(d), effective January
1, 1996, no person may sell or distribute, or offer for sale
or distribution, in interstate commerce any product identified
as being nonessential in . 82.70(c)(ii).
(g) It is a violation of this subpart to sell or distribute,
or offer for sale or distribution, products effected by the
provisions of . 82.68 if the seller knew or should have known
that the purchaser was purchasing the product for a prohibited
application.
. 82.65 Temporary exemptions.
(a) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory by December 31, 1993.
(b) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory within the date 90 days after
the effective date of any federal approvals required for product
reformulation, where application for the required approval was
timely and properly submitted to the approving federal agency
prior to January 1, 1994.
(c)(1) Any person may sell or distribute or offer to sell
or distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory within 45 days after the receipt
of denial by any federal agency of an application for reformulation
where initial application for the required approval was timely
and properly submitted to the approving federal agency prior
to January 1, 1994.
(2) If, within 45 days of receipt of a denial of an application
for reformulation, a person submits a new viable application
for federal approval of a reformulation, that person may continue
to sell and distribute, or offer to sell and distribute until
45 days of denial of that application.
(d) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any integral
skin foam utilized to provide for motor vehicle safety in
accordance
with Federal Motor Vehicle Safety Standards, which are manufactured
and placed into initial inventory prior to January 1, 1996.
(e) Any person selling or distributing, or offering to sell
or distribute, any product specified in this section after January
1, 1994, or January 1, 1996 for paragraph (d) of this section,
or after January 17, 1994 for any product specified in paragraph
(g) of this section, must retain proof that such product was
manufactured and placed into initial inventory before the relevant
date specified in this section. Such proof may take the form
of shipping forms, lot numbers, manufacturer date stamps, invoices
or equivalent business records.
(f) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, any aircraft pesticide
containing
class I until an alternative aircraft pesticide containing class
II is available in interstate commerce.
(g) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any replacement
part that was manufactured with, or contains a class I substance
or was packaged in material that was manufactured with or contains
a class I substance only if:
(1) The replacement part was manufactured for use in a single
model of a product; and
(2) The replacement part and product model are no longer
manufactured; and
(3) The replacement part was placed into initial inventory
prior to April 16, 1992.
. 82.66 Nonessential Class I products and exceptions.
The following products which release a Class I substance
(as defined in 40 CFR part 82, appendix A to subpart A) are
identified as being nonessential, and subject to the prohibitions
specified under . 82.64-
(a) Any plastic party streamer or noise horn which is propelled
by a chlorofluorocarbon, including but not limited to-
(1) String confetti;
(2) Marine safety horns;
(3) Sporting event horns;
(4) Personal safety horns;
(5) Wall-mounted alarms used in factories or other work areas;
and
(6) Intruder alarms used in homes or cars.
(b) Any cleaning fluid for electronic and photographic equipment
which contains a chlorofluorocarbon:
(1) Including but not limited to liquid packaging, solvent
wipes, solvent sprays, and gas sprays; and
(2) Except for those sold or distributed to a commercial
purchaser.
(c) Any plastic flexible or packaging foam product which
is manufactured with or contains a chlorofluorocarbon;
(1) Including but not limited to:
(i) Open cell polyurethane flexible slabstock foam;
(ii) Open cell polyurethane flexible molded foam;
(iii) Open cell rigid polyurethane poured foam;
(iv) Closed cell extruded polystyrene sheet foam;
(v) Closed cell polyethylene foam; and
(vi) Closed cell polypropylene foam.
(2) Except-flexible or packaging foam used in coaxial cable.
(d) Any aerosol product or other pressurized dispenser, other
than those banned in . 82.64(a) or . 82.64(b), which contains
a chlorofluorocarbon,
(1) Including but not limited to household, industrial,
automotive
and pesticide uses,
(2) Except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants for pharmaceutical and tablet manufacture;
(iii) Gauze bandage adhesives and adhesive removers;
(iv) Topical anesthetic and vapocoolant products;
(v) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain CFC-11, CFC-12, or CFC-
113 for solvent purposes, but which contain no other CFCs;
(vi) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain CFC-11 or CFC-113 as a solvent, but
which contain no other CFCs;
(vii) Mold release agents used in the production of plastic
and elastomeric materials, which contain CFC-11 or CFC-113 as
a solvent, but which contain no other CFCs, and/or mold release
agents that contain CFC-12 as a propellant, but which contain
no other CFCs;
(viii) Spinnerette lubricant/cleaning sprays used in the
production of synthetic fibers, which contain CFC-114 as a solvent,
but which contain no other CFCs, and/or spinnerette
lubricant/cleaning
sprays which contain CFC-12 as a propellant, but which contain
no other CFCs;
(ix) Containers of CFCs used as halogen ion sources in plasma
etching;
(x) Document preservation sprays which contain CFC-113 as
a solvent, but which contain no other CFCs, and/or document
preservation sprays which contain CFC-12 as a propellant, but
which contain no other CFCs, and which are used solely on thick
books, books with coated or dense paper and tightly bound
documents;
and
(xi) Red pepper bear repellent sprays which contain CFC-113
as a solvent, but which contain no other CFCs.
. 82.68 Verification and public notice requirements.
(a) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must verify that
the purchaser is a commercial entity as defined in . 82.62.
In order to verify that the purchaser is a commercial entity,
the person who sells or distributes this product must request
documentation that proves the purchaser's commercial status
by containing one or more of the commercial identification numbers
specified in . 82.62(b). The seller or distributor must have
a reasonable basis for believing that the information presented
by the purchaser is accurate.
(b) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must prominently
display a sign where sales of such product occur which states:
``It is a violation of federal law to sell, distribute, or offer
to sell or distribute, any chlorofluorocarbon-containing cleaning
fluid for electronic and photographic equipment to anyone who
is not a commercial user of this product. The penalty for violating
this prohibition can be up to $25,000 per sale. Individuals
purchasing such products must present proof of their commercial
status in accordance with . 82.68(a).''
(c) Effective January 1, 1994, any person who sells or
distributes
any aerosol or pressurized dispenser of cleaning fluid for
electronic
and photographic equipment which contains a class II substance
must verify that the purchaser is a commercial entity as defined
in . 82.62(b). In order to verify that the purchaser is a
commercial
entity, the person who sells or distributes this product must
request documentation that proves the purchaser's commercial
status by containing one or more of the commercial identification
numbers specified in . 82.62(b).
(d) Effective January 1, 1994, any person who sells or
distributes
any aerosol or other pressurized dispenser of cleaning fluid
for electronic and photographic equipment which contains a class
II substance must prominently display a sign where sales of
such product occur which states: ``It is a violation of federal
law to sell, distribute, or offer to sell or distribute, any
aerosol hydrochlorofluorocarbon-containing cleaning fluid for
electronic and photographic equipment to anyone who is not a
commercial user of this product. The penalty for violating this
prohibition can be up to $25,000 per unit sold. Individuals
purchasing such products must present proof of their commercial
status in accordance with . 82.68(c).''
(e) Effective January 1, 1994, in order to satisfy the
requirements
under . 82.68 (b) and (d), any person who sells or distributes
cleaning fluids for electronic and photographic equipment which
contain a class I substance and those aerosol or pressurized
dispensers of cleaning fluids which contain a class II substance,
may prominently display one sign where sales of such products
occur which states: ``It is a violation of federal law to sell,
distribute, or offer to sell or distribute, any chlorofluorocarbon-
containing cleaning fluid for electronic and photographic equipment
or aerosol hydrochlorofluorocarbon-containing cleaning fluid
for electronic and photographic equipment to anyone who is not
a commercial user of this product. The penalty for violating
this prohibition can be up to $25,000 per unit sold. Individuals
purchasing such products must present proof of their commercial
status in accordance with 40 CFR 82.68(a) or 82.68(c).''
(f) Effective January 1, 1994, any person who sells or
distributes
any portable fire extinguisher containing a class II substance
must prominently display a sign where sales of such products
occur; or in cases where the purchaser does not physically come
in contact with the point of sale, written notification must
be given. This notification must state: ``It is a violation
of federal law to sell portable fire extinguishers containing
hydrochlorofluorocarbons to anyone, except for use in applications
where necessary to extinguish fire efficiently without irreparably
damaging the equipment or area being protected or where the
use of other alternatives can cause a hazard to persons in the
area. The penalty for violating this prohibition can be up to
$25,000 per unit sold. Individuals purchasing such products
must present proof of their commercial status in accordance
with 40 CFR 82.68(a), or of ownership of a marine vessel or
boat in accordance with 40 CFR 82.62(j), or of ownership of
a noncommercial aircraft in accordance with 40 CFR 82.62(k).''
Written notification may be placed on sales brochures, order
forms, invoices and the like.
(g) Effective January 1, 1994, any person who sells or
distributes
any portable fire extinguisher which contains a class II substance
must verify that the purchaser is a commercial entity as defined
in . 82.62(b) or is the owner of a marine vessel or boat in
accordance with . 82.62(j) or the owner of a noncommercial aircraft
in accordance with . 82.62(k). In order to verify that the
purchaser
is a commercial entity, the person who sells or distributes
this product must be presented with documentation that proves
the purchaser's commercial status by containing one or more
of the commercial identification numbers specified in . 82.62(b).
In order to verify that the purchaser is the owner of a marine
vessel or boat, the person who sells or distributes this product
must be presented with documentation specified in . 82.62(j)
that proves the purchaser's status as the owner of a marine
vessel or boat. In order to verify that the purchaser is in
ownership of a noncommercial aircraft, the person who sells
or distributes this product must be presented with documentation
specified in . 82.62(k) that proves the purchaser's status as
the owner of a noncommercial aircraft by containing one or more
of the identification information specified in . 82.62(k). The
seller or distributor must have a reasonable basis for believing
that the information presented by the purchaser is accurate.
(h) Effective January 1, 1994, any person who sells or
distributes
any mold release agents containing a class II substance as a
propellant must provide written notification to the purchaser
prior to the sale that ``It is a violation of federal law to
sell mold release agents containing hydrochlorofluorocarbons
as propellants to anyone, except for use in applications where
no other alternative except a class I substance is available.
The penalty for violating this prohibition can be up to $25,000
per unit sold.'' Written notification may be placed on sales
brochures, order forms, invoices and the like.
(i) Effective January 1, 1994, any person who sells or
distributes
any wasp and hornet spray containing a class II substance must
provide written notification to the purchaser prior to the sale
that ``it is a violation of federal law to sell or distribute
wasp and hornet sprays containing hydrochlorofluorocarbons as
solvents to anyone, except for use near high-tension power lines
where no other alternative except a class I substance is available.
The penalty for violating this prohibition can be up to $25,000
per unit sold.'' Written notification may be placed on sales
brochures, order forms, invoices and the like.
. 82.70 Nonessential Class II products and exceptions.
The following products which release a class II substance
(as designated as class II in 40 CFR part 82, appendix B to
subpart A) are identified as being nonessential and the sale
or distribution of such products is prohibited under . 82.64(d),
(e), or (f)-
(a) Any aerosol product or other pressurized dispenser which
contains a class II substance:
(1) Including but not limited to household, industrial,
automotive
and pesticide uses;
(2) Except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain class II substances for
solvent purposes, but which contain no other class II substances;
(iii) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain class II substances for solvent purposes
but which contain no other class II substances;
(iv) Mold release agents used in the production of plastic
and elastomeric materials, which contain class II substances
for solvent purposes but which contain no other class II
substances,
and/or mold release agents that contain HCFC-22 as a propellant
where evidence of good faith efforts to secure alternatives
indicates that, other than a class I substance, there are no
suitable alternatives;
(v) Spinnerette lubricants/cleaning sprays used in the
production
of synthetic fibers, which contain class II substances for solvent
purposes and/or contain class II substances for propellant
purposes;
(vi) Document preservation sprays which contain HCFC-141b
as a solvent, but which contain no other class II substance;
and/or which contain HCFC-22 as a propellant, but which contain
no other class II substance and which are used solely on thick
books, books with coated, dense or paper and tightly bound
documents;
(vii) Portable fire extinguishing equipment sold to commercial
users, owners of marine vessels or boats, and owners of
noncommercial
aircraft that contains a class II substance as a fire extinguishant
where evidence of good faith efforts to secure alternatives
indicate that, other than a class I substance, there are no
suitable alternatives; and
(viii) Wasp and hornet sprays for use near high-tension power
lines that contain a class II substance for solvent purposes
only, but which contain no other class II substances.
(b) Any aerosol or pressurized dispenser cleaning fluid for
electronic and photographic equipment which contains a class
II substance, except for those sold or distributed to a commercial
purchaser.
(c) Any plastic foam product which contains, or is manufactured
with, a class II substance,
(1) Including but not limited to household, industrial,
automotive
and pesticide uses,
(2) Except-
(i) Any foam insulation product, as defined in . 82.62(h);
and
(ii) Integral skin foam utilized to provide for motor vehicle
safety in accordance with Federal Motor Vehicle Safety Standards
until January 1, 1996, after which date such products are
identified
as nonessential and may only be sold or distributed or offered
for sale or distribution in interstate commerce in accordance
with . 82.65(d).
[FR Doc. 93-31982 Filed 12-29-93; 8:45 am]
BILLING CODE 6560-50-P
The Contents entry for this article reads as follows:
Air programs:
Stratospheric ozone protection-
Ozone-depleting substances; accelerated phaseout schedule;
baseline
production and consumption allowances, 69235
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