Vol. 58 No. 10 Friday, January 15, 1993 p 4768 (Rule)
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4553-4]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule establishes regulations to ban
nonessential
products releasing Class I ozone-depleting substances under
section 610 of the Clean Air Act (the Act), as amended. This
rulemaking prohibits the sale, distribution, or offer of sale
or distribution, in interstate commerce of certain products
containing or produced with CFCs after specified dates. In
addition,
it restricts the sale of chlorofluorocarbon-containing cleaning
fluids for electronic and photographic equipment to commercial
entities.
The products affected by this rulemaking use or contain
chlorofluorocarbons
(CFCs), the chemicals designated as Group I or Group III substances
by the Clean Air Act, as amended in 1990. The products affected
by this rulemaking include chlorofluorocarbon-propelled plastic
party streamers and noise horns; chlorofluorocarbon-containing
cleaning fluids for electronic and photographic equipment; plastic
flexible and packaging foams produced with CFCs, except foam
used in coaxial cable; and all aerosol products and pressurized
dispensers containing chlorofluorocarbons except the following
products: certain medical devices, lubricants, coatings or cleaning
fluids for electrical or electronic equipment that contain CFC-
11, CFC-12, or CFC-113, but no other CFCs, for nonpropellant
purposes only; lubricants, coatings or cleaning fluids for aircraft
maintenance that contain CFC-11 or CFC-113, but no other CFCs;
mold release agents that contain CFC-11 or CFC-113, but no other
CFCs, and that are used in the production of plastic and
elastomeric
materials; spinnerette lubricant/cleaning sprays that contain
CFC-114, but no other CFCs, and that are used for synthetic
fiber production; containers of CFCs used in plasma etching;
document preservation sprays that contain CFC-113, but no other
CFCs; and red pepper bear repellent sprays that contain CFC-
113, but no other CFCs.
DATES: This final rule bans the sale, distribution, or offer
of sale or distribution, in interstate commerce of the products
specifically mentioned in .82.66(a) effective on February 16,
1993. This rulemaking also bans the sale or distribution of
the products specifically mentioned in .82.66(b) effective on
February 16, 1993. Finally, this rulemaking bans the sale,
distribution,
or offer of sale or distribution, in interstate commerce of
the other products identified in this rulemaking as nonessential
effective January 17, 1994.
ADDRESSES: Comments and materials supporting this rulemaking
are contained in Air Docket No. A-91-39 (Docket) at: U.S.
Environmental
Protection Agency (LE-131), 401 M Street, SW., Washington, DC
20460. The Docket is located in room M-1500, First Floor Waterside
Mall. Materials relevant to this rulemaking may be inspected
from 8:30 a.m. to 12 noon and from 1:30 to 3:30 p.m. Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: Matthew C. Dinkel at (202)
233-9200, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation, 6202J, 401 M Street SW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION: The contents of today's preamble
are listed in the following outline:
I. Background
A. Overview of Problem
B. Aerosol Ban in 1978
C. Montreal Protocol
D. Excise Tax
E. London Amendments to the Montreal Protocol
F. Clean Air Act Amendments of 1990, Title VI
G. Accelerated Phaseout of CFC Production
H. Requirements of Section 610
1. Class I Products
2. Class II Products
3. Medical Products
I. Notice of Proposed Rulemaking
1. Specified Class I Products
a. CFC-propelled Plastic Party Streamers
b. CFC-propelled Noise Horns
c. CFC-containing Cleaning Fluids for Noncommercial Electronic
and Photographic Equipment
2. Criteria
a. Criteria in the 1978 ban
b. Criteria in the Clean Air Act Amendments of 1990
1. Purpose or Intended Use of the Product
2. Technological Availability of Substitutes
3. Safety and Health
4. Other Relevant Factors
3. Other Products
a. Flexible and Packaging Foams Containing CFCs
b. Aerosols and Pressurized Dispensers Containing CFCs
4. Recordkeeping Requirements
II. Summary of Public Participation
III. Responses to Major Public Comments
A. Scope and Specific Provisions of Nonessential Rule
1. Support for the Proposed Rule
2. Scope of Regulation
3. President's Moratorium on Regulation
4. Section 608 and EPA Authority
5. Criteria for Determining Nonessentiality
6. Definition of the Term "Product"
7. Definition of Interstate Commerce and Grandfathering Existing
Product Inventories
8. Verification, Recordkeeping and Public Notice Requirements
9. Imports and Exports
10. Future Regulation
11. Regulatory Impact Analysis
B. Specific End Uses
1. Statutorily Mandated Products
2. Foams
a. Distinction Between Insulating Foams and Flexible and
Packaging
Foams
b. Flexible Polyurethane Slabstock Foam
c. Integral Skin Foam
d. Closed Cell Polyurethane Foam Used As Flotation Foam
e. Coaxial Cable
f. Aerosol Polyurethane Foam
3. Aerosols and Pressurized Dispensers
a. Impact of 1994 Class II Nonessential Products Ban
b. Clarification of "Aerosols and Other Pressurized Dispensers"
c. Dusters and Freeze Sprays
d. Lubricants, Coatings, and Cleaning Fluids for Electrical
or Electronic Equipment
e. Spinnerette Lubricant/Cleaning Sprays
f. Plasma Etching
g. Red Pepper Bear Repellent Sprays
h. Document Preservation Sprays
4. Medical Products
5. Halon Fire Extinguishers for Residential Use
6. Other Products
IV. Summary of Today's Final Rule
A. Authority
B. Purpose
C. Definitions
D. Prohibitions
E. Nonessential Products and Exceptions
F. Verification and Public Notice Requirements
V. Effective Dates
VI. Judicial Review
VII. Summary of Supporting Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
VIII. References
I. Background
A. Overview of the Problem
The stratospheric ozone layer protects the earth from
ultraviolet
(UV-B) radiation. Research conducted in the 1970s indicated
that when certain industrially produced halocarbons (including
chlorofluorocarbons, halons, carbon tetrachloride and methyl
chloroform) are released into the environment, they migrate
into the stratosphere, where they contribute to the depletion
of the ozone layer. To the extent depletion occurs, penetration
of the atmosphere by UV-B radiation increases. Increased exposure
to UV-B radiation produces health and environmental damage,
including increased incidence of skin cancer and cataracts,
suppression of the immune system, damage to crops and aquatic
organisms, increased formation of ground-level ozone and increased
weathering of outdoor plastics.
B. Aerosol Ban in 1978
The initial hypothesis linking chlorofluorocarbons and depletion
of the stratospheric ozone layer appeared in a paper by Mario
J. Molina and F.S. Rowland in 1974. Since that time, the scientific
community has made remarkable advances in understanding atmospheric
processes affecting stratospheric ozone and in analyzing data
measuring ozone depletion, both over the polar regions and
globally.
In response to the initial research indicating that CFCs could
cause stratospheric ozone depletion, EPA, the Consumer Product
Safety Commission, and the Food and Drug Administration (FDA)
acted on March 17, 1978 (43 FR 11301; 43 FR 11318) to ban the
use of CFCs as aerosol propellants in all but "essential
applications."
During the mid-1970s, the use of CFCs as aerosol propellants
constituted over 50 percent of total CFC consumption in the
United States. The 1978 ban reduced the use of CFCs in aerosols
in this country by approximately 95 percent, eliminating nearly
half of the total U.S. consumption of these chemicals.
Some CFC aerosol products were specifically exempted from
the ban based on a determination of "essentiality" (See Essential
Use Determinations-Revised, 1978). Other pressurized dispensers
containing CFCs were excluded from the ban because they did
not fit the narrow definition of "aerosol propellant."
In the years following the aerosol ban, CFC use increased
significantly in refrigeration, foam and solvent applications.
By 1985, CFC use in the United States had surpassed pre-1974
levels and represented 29 percent of total global CFC consumption.
C. Montreal Protocol
Scientific research in the late 1970s and early 1980s produced
additional evidence that chlorine and bromine could destroy
stratospheric ozone on a global basis. In 1985, scientists
discovered
the existence of a substantial seasonal reduction in stratospheric
ozone (an ozone "hole") over Antarctica each year. Subsequent
studies linked this phenomenon to CFCs and suggested that some
depletion of global stratospheric ozone levels had already
occurred.
In response to this research, many members of the international
community began discussing the need for an international agreement
to reduce global production of ozone-depleting substances. Because
releases of CFCs from all areas mix in the atmosphere to affect
stratospheric ozone globally, efforts to reduce emissions from
specific products by only a few nations could quickly be offset
by increases in emissions from other nations, leaving the risks
to the ozone layer unchanged. EPA evaluated the risks of ozone
depletion in Assessing the Risks of Trade Gases That Can Modify
the Stratosphere (1987) and concluded that an international
approach was necessary to effectively safeguard the ozone layer.
EPA participated in negotiations organized by the United
Nations Environment Programme (UNEP) to achieve an international
agreement to protect the ozone layer. In September 1987, the
United States and 22 other countries signed the Montreal Protocol
on Substances that Deplete the Ozone Layer. The 1987 Protocol
called for a freeze in the production and consumption (defined
as production plus imports minus exports of bulk chemicals)
of CFC-11, -12, -113, -114, -115, and halon 1211, 1301 and 2402
at 1986 levels beginning in 1989, and a phased reduction of
the CFCs to 50 percent of 1986 levels by 1998. Currently, 83
nations representing over 90 percent of the world's consumption
are parties to the Protocol.
In its August 12, 1988 final rulemaking (53 FR 30566) EPA
promulgated regulations implementing the requirements of the
1987 Protocol through a system of tradable allowances. EPA
apportioned
these allowances to producers and importers of these "controlled
substances" based on their 1986 levels. To monitor industry's
compliance with the production and consumption limits, EPA required
recordkeeping and quarterly reporting and conducted periodic
compliance reviews and inspections. This regulation took effect
July 1, 1989.
D. Excise Tax
As part of the Omnibus Budget Reconciliation Act of 1989,
the United States Congress levied an excise tax on the sale
of CFCs and other chemicals which deplete the ozone layer, with
specific exemptions for exports and recycling. The tax went
into effect on January 1, 1990, and increases annually. By raising
the cost of virgin controlled substances, the tax has created
an incentive for industry to shift out of these substances and
increase recycling activities, and it has encouraged the
development
of a market for alternative chemicals and processes. The original
excise tax was amended by the Omnibus Budget Reconciliation
Act of 1990 to include methyl chloroform, carbon tetrachloride
and the other CFCs regulated by the amended Montreal Protocol
and title VI of the Clean Air Act, as amended in 1990. The Energy
Policy Act of 1992 revised and further increased the excise
tax effective January 1, 1993.
E. London Amendments to the Montreal Protocol
Under the Montreal Protocol, the Parties are required to
assess the science, economics and alternative technologies related
to protection of the ozone layer every two years. In response
to this requirement, the Parties issued their first scientific
assessment in 1989 (see Environmental Effects Panel Report).
In preparing the first scientific assessment required under
the Protocol, scientists examined the data from the land-based
monitoring stations and the total ozone measurement spectrometer
(TOMS) satellite data and concluded that there had been global
ozone depletion over the northern hemisphere as well. The
scientific
assessment reported that a three to five percent decrease in
ozone levels had occurred between 1969 and 1986 in the northern
hemisphere in the winter months that could not be attributed
to known natural processes. In addition, further studies of
the Antarctic ozone hole implicated chlorine as the main cause
of ozone depletion over the Antarctic, and linked high chlorine
concentrations to CFCs and other chlorinated and brominated
compounds.
At the Second Meeting of the Protocol Parties, held in London
on June 29, 1990, the Parties responded to this new evidence
by reassessing and tightening the restrictions placed on these
chemicals. The Parties to the Protocol passed amendments and
adjustments which called for a full phaseout of the regulated
CFCs and halons by 2000, a phaseout of carbon tetrachloride
and "other CFCs" by 2000 and a phaseout of methyl chloroform
by 2005. The Parties also passed a non-binding resolution regarding
the use of hydrochlorofluorocarbons (HCFCs) as interim substitutes
for CFCs. Partially halogenated HCFCs add much less chlorine
to the stratosphere than the fully halogenated CFCs, but still
pose a significant threat to the ozone layer (See 56 FR 2420,
January 22, 1991 for more information on the relative effects
of different ozone-depleting substances).
F. Clean Air Act Amendments of 1990, Title VI
On November 15, 1990 the Clean Air Act Amendments of 1990
were signed into law. The Act required EPA to publish two lists
of ozone-depleting substances, based on their ozone-depleting
potentials (ODPs). The Act categorized CFCs, halons, carbon
tetrachloride and methyl chloroform as Class I substances,
substances
that possess a high potential for destroying stratospheric ozone
molecules. It also designated hydrochlorofluorocarbons as Class
II substances, substances with a lesser, but still significant
ozone depletion potential.
The other requirements in title VI of the amended Act include
phaseout controls similar to those in the London Amendments,
although the interim targets are more stringent and the phaseout
date for methyl chloroform is earlier (2002). EPA has already
promulgated regulations implementing the phaseout provisions
contained in section 604 of the Act (57 FR 33754, July 30, 1992).
Unlike the amended Montreal Protocol, the Clean Air Act, as
amended, also restricts the uses of controlled ozone-depleting
substances, including provisions to reduce emissions of controlled
substances to the "lowest achievable level" in all use sectors
(section 608); requires the recovery and recycling of refrigerant
when servicing motor vehicle air conditioners (section 609);
bans nonessential products (section 610); mandates warning labels
(section 611); establishes a safe alternatives program (section
612); and requires revision of federal procurement policies
to minimize government use of ozone-depleting substances (section
613). With the exception of the rulemakings implementing the
phaseout (57 FR 33754, July 30, 1992) and section 609 (57 FR
31242, July 14, 1992), EPA is currently in the process of
promulgating
regulations pursuant to these statutory provisions.
One of the provisions of the Act which complements the
nonessential
products ban under section 610 is the Significant New Alternatives
Policy (SNAP) program established under section 612. The SNAP
program has been established to evaluate the overall effects
on human health and the environment of the potential substitutes
for ozone-depleting substances. The SNAP program is a powerful
tool to identify substitutes that may pose unnecessary
environmental
hazards. Through review of substitutes, the Agency can ensure
that environmentally preferable alternatives will be developed.
Rules promulgated under SNAP will render it unlawful to replace
on ozone-depleting substance with a substitute chemical or
technology
that may present adverse effects to human health and the
environment
if the Administrator determines that some other alternative
is commercially available and that this alternative poses a
lower overall threat to human health and the environment.
It is important to note that the SNAP program will promote
the widest range of environmentally acceptable substitutes.
The SNAP program will in no case ban all of the available
substitutes.
Under section 612, the SNAP program is only authorized to prohibit
a particular substitute for a Class I or Class II substance
when another, less environmentally harmful substitute is available.
Consequently, there is no possibility that the effect of today's
rulemaking and subsequent regulatory action under section 612
will be to ban the use of all available substitutes in a particular
application.
G. Accelerated Phaseout
Significant scientific advances have continued since the
1989 Protocol assessments. Several reports since that time have
indicated that ozone depletion is occurring more rapidly than
was previously believed. The most recent Protocol Scientific
Assessment was issued on December 17, 1991. The report, entitled
Scientific Assessment of Ozone Depletion: 1991, analyzed
information
collected from ground- and satellite-based monitoring instruments.
This information indicated that there had been significant
decreases
in total-column ozone in winter, in both the northern and southern
hemispheres at middle and high latitudes. This data also indicated,
for the first time, the depletion of stratospheric ozone in
these latitudes in spring and summer as well. The study reported
no significant depletion in the tropics. The TOMS data indicated
that for the period 1979 to 1991, decreases in total ozone at
45 degrees south ranged between 4.4 percent in the fall to as
much as 6.2 percent in the summer, while depletion at 45 degrees
north ranged between 1.7 percent in the fall to 5.6 percent
in the winter. Data from the ground-based Dobson network confirmed
these losses in total column ozone during the twelve-year period,
but these findings show almost twice as much depletion as the
average rate measured by the ground-based network alone over
a twenty-year period. Based on this new data, scientists have
concluded that the ozone in the stratosphere during the 1980s
disappeared at a much faster rate than experienced in the previous
decade.
The recent UNEP Scientific Assessment also included new data
on the estimated ozone depletion potentials (ODPs) of ozone-
depleting substances. The assessment placed the ODP of methyl
bromide, a chemical previously thought to have an insignificant
effect on stratospheric ozone, at 0.6, with a range of uncertainty
between 0.44-0.69. The Executive Summary of the Assessment stated
that, "if the anthropogenic sources of methyl bromide are
significant
and their emissions can be reduced, then each ten percent reduction
in methyl bromide would rapidly result in a decrease in
stratospheric
bromide of 1.5 pptv (parts per trillion by volume), which is
equivalent to a reduction in chlorine of 0.045 to 0.18 ppbv
(parts per billion by volume). This gain is comparable to that
of a three-year acceleration of the scheduled phaseout of the
CFCs."
Several months after the release of the Scientific Assessment,
on February 3, 1992, NASA released preliminary data acquired
by the ongoing Arctic Airborne Stratospheric Experiment-II (AASE-
II), a series of high-altitude instrument-laden plane flights
over the northern hemisphere (see Interim Findings: Second Airborne
Arctic Stratospheric Expedition). Additional data were also
obtained from the initial observations by NASA's Upper Atmosphere
Research Satellite (UARS), launched in September 1991. The
measurements
showed higher levels of chlorine oxide (ClO) (the key agent
responsible for stratospheric ozone depletion) over Canada and
New England than were observed during any previous series of
aircraft flights. These levels are only partially explainable
by enhanced aerosol surface reactions due to the emissions from
the Mount Pinatubo volcano. The expedition also found that the
levels of hydrogen chloride (HCl), a chemical species that stores
atmospheric chlorine, were observed to be low, providing new
evidence for the existence of chemical processes that convert
stable forms of chlorine into ozone-destroying species. The
high ClO and bromide oxide (BrO) levels observed indicated that
human-induced rates of ozone destruction could be as high as
one to two percent per day for short periods of time beginning
in late January.
In addition, the levels of nitrogen oxides (NOx) were also
observed to be low, providing evidence of reactions that take
place on the surface of aerosols that diminish the ability of
the atmosphere to control the buildup of chlorine radicals.
New observations of HCl and nitrogen oxide (NO) imply that chlorine
and bromide are more effective in destroying ozone than previously
believed.
The NASA findings indicate that in late January of 1992,
the Arctic air was chemically "primed" for the potential formation
of a springtime ozone "hole" similar to that formed each spring
over Antarctica. These findings also are consistent with theories
that ozone depletion may occur on aerosols anywhere around the
globe, and not only on polar stratospheric clouds as was previously
believed.
After collecting more data, NASA released an April 30, 1992
"End of Mission Statement," which indicated that while a rise
in stratospheric temperatures in late January apparently prevented
severe ozone depletion from occurring in the Arctic this year,
observed ozone levels were nonetheless lower than had previously
been recorded for this time of year. This information has further
increased the Agency's concern that significant ozone loss may
occur over populated regions of the earth, thus exposing humans,
plants and animals to harmful levels of UV-B radiation, and
adds support to the need for further efforts to limit emissions
of anthropogenic chlorine and bromide.
In response to these findings, President Bush announced on
February 11, 1992 that the United States would unilaterally
accelerate the phaseout schedule for ozone-depleting substances,
and he called upon other nations to agree to an accelerated
phaseout schedule as well. At the Fourth Meeting of the Parties
to the Montreal Protocol, held in Copenhagen, Denmark on November
25, 1992, the Parties adopted a more stringent phaseout schedule.
Under the new agreement, CFC production will be capped at 25
percent of the 1986 baseline in 1994, and production of CFCs,
carbon tetrachloride, and methyl chloroform for all but essential
uses will be completely phased out by 1996. Production of halons,
except for essential uses, will be phased out by 1994. EPA has
begun the rulemaking process for implementing this accelerated
phaseout.
The accelerated phaseout will have a significant impact upon
the products affected by today's rulemaking. The combined effects
of the excise tax and the original phaseout schedule have already
created strong incentives for industry to find substitutes for
Class I substances. In fact, current U.S. production of Class
I substances is more than 40 percent below the levels set by
the Montreal Protocol. The accelerated phaseout will significantly
increase the incentives for Class I substance users to switch
to alternatives. Consequently, even where a particular use of
a Class I substance is not included in the nonessential products
ban, the substance in question will rapidly become scarce and
expensive, and industry will be forced to find alternative
chemicals
or processes.
The accelerated phaseout dramatically reduces the need for
aggressive EPA action under section 610. When Congress passed
the Clean Air Act Amendments of 1990, it required the phaseout
of the production of Class I substances by the year 2000.
Consequently,
there was a period of eight years in which the Class I nonessential
products ban would have had an effect on manufacturers of these
products. However, the Montreal Protocol Parties' decision to
end production of CFCs by January 1, 1996 means that the ban
on nonessential products authorized in section 610(b)(3) will
only be in effect for two years before the complete phaseout
takes effect. As a result, EPA believes that other provisions
of title VI provide more effective and efficient means of
implementing
the Act's goals of protecting the earth's stratospheric ozone
layer.
The final rule reflects this belief by banning only those
products specified in sections 610(b) and 610(d) that contain
Class I substances. Section 610(d)(1) is self-executing and
bans the sale or distribution of foam and aerosol products
containing
or produced with Class II substances after January 1, 1994 unless
an exception is granted under paragraph 610(d)(2). The Agency
believes that aerosols and plastic flexible and packaging foams
containing or produced with Class I substances should also be
subject to the nonessential products ban to avoid providing
incentives for manufacturers to revert to CFC use when the less
environmentally harmful Class II substances are banned in these
applications after January 1, 1994 under section 610(d). Moreover,
the Agency believes that the use of CFCs in these two sectors
is nonessential; as discussed elsewhere in this preamble, a
number of substitutes for CFCs have already been adopted in
these sectors. The fact that the affected industries have already
largely made the transition out of CFCs may have encouraged
Congress to ban the use of Class II substances in aerosols and
noninsulating foams under section 610(d) of the statute.
H. Requirements Under Section 610
1. Class I Products
Title VI of the Act divides ozone-depleting chemicals into
two distinct classes based on their ability to destroy ozone
in the stratosphere. Class I substances are those substances
identified as such in section 602, as well as any substance
subsequently identified that has an ozone depletion potential
(ODP) of 0.2 or greater (ozone depletion potential reflects
the destructiveness of an ozone-depleting substance relative
to CFC-11). Class I is comprised of CFCs, halons, carbon
tetrachloride
and methyl chloroform. Class II substances have ODPs lower than
0.2; at this time, Class II consists exclusively of HCFCs (see
listing notice, January 22, 1991; 56 FR 2420). EPA is currently
evaluating other substances to determine whether they meet the
criteria for Class I or Class II substances.
Section 610(b) of the Act calls on EPA to identify nonessential
products that release Class I substances into the environment
(including any release during manufacture, use, storage, or
disposal) and to prohibit any person from selling or distributing
any such product, or offering any such product for sale or
distribution,
in interstate commerce.
Section 610(b) (1) and (2) specifies products to be prohibited
under this requirement, including "chlorofluorocarbon-propelled
plastic party streamers and noise horns" and "chlorofluorocarbon-
containing cleaning fluids for noncommercial electronic and
photographic equipment."
Section 610(b)(3) extends the prohibition to other products
determined by EPA to release Class I substances and to be
nonessential.
In determining whether a product is nonessential, EPA is to
consider the following criteria: the purpose or intended use
of the product, the technological availability of substitutes
for such product and for such Class I substance, safety, health,
and other relevant factors.
Section 610(a) provides that EPA is to promulgate final
regulations
for the Class I products ban within one year after enactment
of the Clean Air Act Amendments of 1990 (November 15, 1991).
Section 610(b) provides that 24 months after enactment (November
15, 1992), it shall be unlawful to sell or distribute any
nonessential
product to which regulations under section 610 apply. Since
this rulemaking implementing section 610(b) has been published
after November 15, 1992, there were no prohibitions on nonessential
products in effect. This regulation will take effect on February
16, 1993.
2. Class II Products
Section 610(d) (1) states that after January 1, 1994, it
shall be unlawful for any person to sell or distribute, or offer
for sale or distribution, in interstate commerce-(A) any aerosol
product or other pressurized dispenser which contains a Class
II substance; or (B) any plastic foam product which contains,
or is manufactured with, a Class II substance. Section 610(d)(2)
authorized EPA to grant exceptions to the Class II ban in certain
circumstances.
EPA believes that, unlike the Class I ban, the Class II ban
is self-executing and that, consequently, EPA is not required
to promulgate regulations within one year of enactment under
section 610 to implement the Class II ban.{1} Section 610(d)
bans the sale of the specified Class II products without any
reference to required regulations. EPA believes it has the
authority
to issue regulations as necessary to implement the Class II
ban under sections 610 and 301 of the Clean Air Act, as amended,
and intends to do so at a later date in order to establish a
procedure for granting exceptions under section 610(d)(2). This
will not, however, affect the effective date of the Class II
ban. EPA is currently in the process of drafting proposed
regulations
for this purpose.
³{1} Although the legislative history of section 610 is
³unclear on this point, the Senate Statement of Managers
³specifically states that the section 608 ban on the
venting
³of refrigerants, which like the Class II ban is an
outright
³prohibition, is self-executing and will take effect on
³the stated date even if that date is in advance of EPA
³regulations implementing the ban. See Congressional
Record,
³page S16948, October 27, 1990.
3. Medical Products
Section 610(e) states that nothing in this section shall
apply to any medical devices as defined in section 601(8). Section
601(8) defines "medical device" as any device (as defined in
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321))
diagnostic
product, drug (as defined in the Federal Food, Drug, and Cosmetic
Act), and drug delivery system-(A) if such device, product,
drug, or drug delivery system utilizes a Class I or Class II
substance for which no safe and effective alternative has been
developed and, where necessary, approved by the Commissioner
of the Food and Drug Administration (FDA); and (B) if such device,
product, drug, or drug delivery system, has, after notice and
opportunity for public comment, been approved and determined
to be essential by the Commissioner in consultation with the
Administrator.
The FDA currently lists 12 medical devices for human use
as essential uses of CFCs in 21 CFR 2.125. These devices consist
of certain metered dose inhalers (MDIs), contraceptive vaginal
foams, intrarectal hydrocortisone acetate, polymyxin B sulfate-
bacitracin-zinc-neomycin sulfate soluble antibiotic powder without
excipients for topical use, and anesthetic drugs for topical
use on accessible mucous membranes where a cannula is used for
application.
No medical products as defined above are banned by the
provisions
of today's rulemaking. Today's regulation specifically exempts
medical products contained in the FDA's list of essential uses
(21 CFR 2.125), as well as gauze bandage adhesives and adhesive
removers, lubricants for pharmaceutical and tablet manufacture,
and topical anesthetic and vapocoolant products. Regulation
of medical products may be considered at a later date under
the conditions in section 610(e) and section 601(8).
I. Notice of Proposed Rulemaking
On January 16, 1992, EPA published a notice of proposed
rulemaking
(NPRM 57 FR 1992) addressing issues related to the prohibition
required by section 610 of the Act on the sale or distribution
in interstate commerce of nonessential Class I products.
In developing the proposed rule, EPA was assisted by a
subcommittee
of the standing Stratospheric Ozone Protection Advisory Committee
(STOPAC). The STOPAC consists of members selected on the basis
of their professional qualifications and diversity of perspectives
and provides balanced representation from the following sectors:
industry and business; academic and educational institutions;
federal, state and local government agencies; and environmental
groups. Since its formation, the STOPAC has provided advice
and counsel to the Agency on policy and technical issues related
to the protection of the stratospheric ozone layer.
In 1990, members were asked to participate in subgroups of
the STOPAC to assist the Agency in developing regulations under
the new requirements of title VI of the Clean Air Act, as amended
in 1990. To date, the Subcommittee on Nonessential Products
has met twice, reviewing two in-depth briefing packets (contained
in Docket A-91-39) and offering comments and technical expertise
on the January 16 proposed rule.
In its NPRM, EPA proposed definitions for the terms
"chlorofluorocarbon,"
"commercial," "consumer," "distributor," "product," and "release."
These proposed definitions would apply only to regulations under
section 610. In describing these definitions, EPA discussed
the legal and policy aspects of the various options considered.
The NPRM also discussed at great length the criteria used to
determine whether a product was nonessential under section
610(b)(3).
The proposed rule listed the products identified as nonessential
by the statute, as well as the products which the Agency proposed
to identify as nonessential. The proposed rule called for banning
the sale or distribution of the CFC-containing products
specifically
mentioned in the statute, and, in addition, plastic flexible
or packaging foams and all aerosol products except seven uses
which were specifically identified. The NPRM also explained
EPA's decision to include aerosols and pressurized dispensers
containing CFCs, as well as plastic flexible and packaging foams
produced with CFCs in the Class I nonessential products ban.
Finally, the NPRM requested comments on whether halon fire
extinguishers
for residential use should be banned as nonessential products.
1. Specified Class I Products
a. CFC-propelled plastic party streamers. EPA found only
one type of product that fits the description "chlorofluorocarbon-
propelled plastic party streamers" as set forth in section
601(b)(1).
String confetti is a household novelty product comprised of
a plastic resin, a solvent, and a propellant mixed together
in a pressurized can. When the dispensing nozzle is depressed,
blowing action converts the resin into plastic foam streamers
and propels them a few feet. Once popular at children's parties,
string confetti was commonly known by its commercial name "silly
string."
String confetti was originally manufactured using CFC-12
as the blowing agent. However, EPA is unaware of any company
that currently uses CFCs in this type of product. The use of
CFC-12 in string confetti was not prohibited by EPA's 1978 aerosol
ban because technically the CFC also served as an active ingredient
in the product and not exclusively as an aerosol propellant.
Manufacturers switched initially to hydrocarbon systems but,
due to flammability concerns, have since moved to HCFC-22 systems.
HCFC-22 is a Class II substance with an ozone depletion potential
of 0.05 (one twentieth that of CFC-12) (see listing notice of
ozone depleting substances 56 FR 2420; January 22, 1991).
EPA believes that since the excise tax and production limits
on CFCs will continue to raise their cost, it is unlikely that
they would again be used to propel string confetti. Nonetheless,
as required by the statute, the proposed rule called for a
prohibition
on the sale or distribution of any CFC-propelled plastic party
streamers.
b. CFC-propelled noise horns. A noise horn is generally regarded
as a product from which the high dispensing pressure of a
propellant
produces a loud piercing sound that can travel long distances.
EPA is aware of several products that could fit the description
of "noise horns" in section 610(b)(10), including marine safety
noise horns, sporting event noise horns, personal safety noise
horns, wall-mounted industrial noise horns used as alarms in
factories and other work areas, and intruder noise horns used
as alarms in homes and cars.
In the past, many boaters used noise horns propelled by CFC-
12 to meet U.S. Coast Guard regulations requiring vessels of
all sizes to carry a noise-making signalling device. One of
the largest manufacturers of such "marine safety" noise horns
reported that all of its horn products except for the smallest
canister (2.1 ounces) had either been reformulated to use HCFC-
22 or dropped from its product line. According to this
manufacturer,
the reason that CFC-12 is still used in its smallest canister
is that the Department of Transportation (DOT) has not yet approved
a canister of that size to accommodate the different pressure
of HCFC-22.
The use of CFC-12 in noise horns was not prohibited by the
1978 aerosol ban because the CFC served as the sole ingredient
in the product and not merely as a propellant. EPA's report
Alternative Formulations to Reduce CFC Use in U.S. Exempted
and Excluded Aerosol Products (Alternative Formulations) states
that as of September 1989, "several manufacturers" of noise
horns had switched from CFC-12 to HCFC-22. Noise horns propelled
with HCFC-22 meet or exceed all Coast Guard requirements and
are available in canisters as small as 4.5 ounces. EPA believes
that 4.5 ounce canisters are sufficiently small to satisfy consumer
needs for all recreational, boating, automotive and home uses,
and should not cost significantly more than the currently available
2.1 ounces size that uses CFC-12. Other alternative propellants
for noise horns include HCFC-142b (in a mixture with HCFC-22),
hydrocarbons, and hydrofluorocarbon (HFC)-134a. Hydrocarbons
have not been commonly used due to flammability concerns. HFC-
134a appears promising as a non-chlorinated substitute that
unlike HCFC-22 poses no threat to the ozone layer. HFC-134a
has recently become available in limited commercial quantities.
EPA believes that the current and potential availability of
effective substitutes (including either the use of a different
propellant or a slightly larger canister pending DOT approval
of the smallest) indicates Congressional intent to prohibit
the sale and distribution of any CFC-propelled noise horns,
including those which serve as safety devices.
Other products propelled with CFCs that appear to fit the
description "noise horns" in section 610(b)(1) include sporting
event noise horns, personal safety noise horns, wall-mounted
industrial noise horns used as alarms in factories and other
work areas, and intruder noise horns used as alarms in homes
and cars. The availability of substitutes for these other noise
horn products is similar to that of the marine safety noise
horns. In fact, the same noise horn product may perform several
of the uses listed above.
As with the party streamers, EPA believes that the excise
tax and the limits on supply have raised the prices of CFCs
so much that it may already be more economical to use substitutes
in noise horns. Nevertheless, in the January 16, 1992 NPRM,
EPA proposed to ban all noise horns propelled with CFCs, as
required by the statute.
c. CFC-containing cleaning fluids for noncommercial electronic
and photographic equipment. Cleaning fluids are generally used
to remove oxides, contaminants, dust, dirt, oil, airborne
chemicals,
fingerprints, and fluxes (the waste produced during soldering)
from electronic and photographic equipment. These fluids are
currently comprised of CFCs, HCFCs, methyl chloroform or alcohols,
either alone or in mixtures.
EPA identified several products that it considered to be
CFC-containing cleaning fluids for the uses described in section
610(b)(2). These products fall into four broad categories: solvent
wipes containing CFC-113 (pre-moistened cloths), liquid packaging
containing CFC-113 (applied with a cloth or other applicator),
solvent sprays containing CFC-113 and/or CFC-11 (sprayed from
a pressurized container through a nozzle or tube), and gas sprays
containing CFC-12 (pressurized fluid released as a gas to
physically
blow particles from a surface). These cleaning fluid products
include tape and computer disk head cleaners, electronic circuit
and contact cleaners, film and negative cleaners, flux removers,
and camera lens and computer keyboard dusters.
EPA believes that the tax and the limits on supply are providing
an ever-increasing incentive for users of noncommercial cleaning
fluids to switch from products containing CFCs to alternatives.
Nevertheless, the January 16, 1992 NPRM proposed to ban the
noncommercial use of these products, as required by the statute.
2. Criteria
Section 610 authorizes the Administrator to identify and
ban nonessential products in addition to those specifically
addressed in the Act. In keeping with Congressional intent,
EPA examined products that were not specifically addressed in
the statute. Section 610(b)(3) provides that in examining these
products, the Administrator consider the purpose or intended
use of the product, the technological availability of substitutes
for such product and for such Class I substance, safety, health,
and other relevant factors. The statute requires EPA to consider
each criterion but does not outline either a ranking or a
methodology
for comparing their relative importance, not does it require
that any minimum standard within each criterion be met. EPA
considered all of these criteria in determining whether a product
was nonessential. In addition, EPA reviewed the criteria used
in the development of its 1978 ban on aerosol propellant uses
of CFCs under the Toxic Substances Control Act (TSCA). All of
these criteria are discussed below.
a. Criteria in the 1978 Ban. The criteria used by EPA to
determine which products should be exempted from the 1978 ban
as "essential uses" were: (1) "Nonavailability" of alternative
products; (2) economic significance of the product, including
the economic effects of removing the product from the market;
(3) environmental and health significance of the product; and
(4) effects on the "quality of life" resulting from no longer
having the product available or from using an alternative produce
(See Essential Use Determinations-Revised, 1978). These criteria
are in many ways comparable to those included in section 610.
The background document supporting the 1978 ban states that
when granting "essential use" exemptions, EPA believed that
no single factor was sufficient to determine that a product
or particular use was essential. The lack of available substitutes
alone, for example, was not sufficient for EPA to exempt a product.
The product also had to provide an important societal benefit
to obtain an "essential use" exemption. If an alternative did
exist, however, EPA decided that this product or use was not
"essential," and that it was not necessary to make any judgements
concerning the other criteria.
In other words, if EPA determined that an aerosol product
had an available alternative, EPA did not need to make a
determination
on whether its purpose was or was not important in order to
deny any petition for exemption for that product under the 1978
rule.
b. Criteria in the Clean Air Act Amendments of 1990-1. The
Purpose of Intended Use of the Product. EPA interprets this
criterion as relating to the importance of the product,
specifically
whether the product is sufficiently important that the benefits
of its continued production outweigh the associated danger from
the continued use of a Class I ozone-depleting substance in
it, or alternatively, whether the product is so unimportant
that even a lack of available substitutes might not prevent
the product from being considered nonessential. For example,
the statute seems to indicate that the purpose or intended use
of medical products is important enough to preclude EPA from
banning as nonessential any medical product without an "effective
alternative," and that, conversely, party streamers are not
important enough to warrant the continued use of CFCs regardless
of the availability of substitutes.
However, the other examples of nonessential products cited
by Congress for EPA to ban at a minimum do not provide as clear-
cut an illustration of this criterion. Noise horns, for example,
are primarily used for safety reasons. Nor is the use of cleaning
fluids on noncommercial photographic and electronic equipment
generally considered to be frivolous. EPA believes that these
examples of nonessential products provided by Congress show
that while it is critical to consider the purpose or intended
use of a product along with the other specified criteria, Congress
did not intend to limit EPA's authority to consideration of
only the intended use.
A possible corresponding criterion from the 1978 aerosol
ban is the effect on the "quality of life" of no longer having
the product available or of using an alternative. As discussed
above, the product had to provide an important societal benefit
for EPA to grant an exemption from the 1978 ban, even if the
product did not have an available alternative. Consequently,
in the Class I nonessential products ban under section 610(b)(3),
EPA considered the contribution to the quality of life of a
product using a Class I substance, the impact of compelling
a transition to a substitute chemical or process, and the impact
of the product's removal from the market altogether, in evaluating
this criterion.
The distinction between a "nonessential product" and a
"nonessential
use of Class I substances in a product" is also relevant to
this criterion. While foam cushioning products for beds and
furniture are not "frivolous," for example, the use of a Class
I substance in the process of manufacturing foam cushioning
where substitutes are readily available could be considered
nonessential. EPA believes that the extent to which manufacturers
of a product have already switched out of Class I substances
is a relevant indicator for this criterion. For example, the
Agency believes that in sectors where the grant majority of
manufacturers had already shifted to substitutes, the use of
a Class I substance in that product may very well be nonessential;
EPA is also aware that in certain subsectors, the continued
use of CFCs, despite the imposition of the excise tax and the
impending production phaseout, may indicate failure to meet
one or more of the criteria for nonessentiality, such as the
technological availability of substitutes. Consequently, EPA
carefully examined sectors in which most of the market had switched
out of CFCs.
2. The Technological Availability of Substitutes. EPA interprets
this criterion to mean the existence and accessibility of
alternative
products or alternative chemicals for use in, or in place of,
products releasing Class I substances. EPA believes that the
phrase "technological availability" may include both currently
available substitutes (i.e., presently produced and sold in
commercial quantities) and potentially available substitutes
(i.e., determined to be technologically feasible, environmentally
acceptable and economically viable, but not yet produced and
sold in commercial quantities). However, EPA considered the
current availability of substitutes more compelling than the
potential availability of substitutes in determining whether
a product was nonessential.
The corresponding criterion from the 1978 ban is the
"nonavailability
of alternative products." In its supporting documentation, EPA
stated that this was the primary criterion for determining if
a product has an "essential use" under the 1978 rule. EPA
emphasized,
however, that the absence of an available alternative did not
alone disqualify a product from being banned.
The availability of substitutes is clearly a critical criterion
for determining if a product is nonessential. In certain cases,
a substitute that is technologically feasible, environmentally
acceptable and economically viable, but not yet produced and
sold in commercial quantities, may meet this criterion. EPA
believes that, where substitutes are readily available, the
use of controlled substances could be considered nonessential
even in a product that is extremely important.
It should be noted, however, that EPA does not necessarily
advocate all substitutes that are currently being used in place
of CFCs in the products EPA identifies as nonessential. Some
manufacturers have switched from CFCs to substitutes that may
have serious health and safety concerns. EPA will be looking
carefully at the relative risks and merits of different substitutes
for ozone-depleting substances as it implements section 612
(SNAP). On the other hand, EPA wants to reassure the public
that the section 610 and the section 612 rulemakings will not,
either intentionally or inadvertently, leave manufacturers or
consumers without appropriate substances for each essential
use.
3. Safety and Health. EPA interprets these two criteria to
mean the effects on human health and the environment of the
products releasing Class I substances or their substitutes.
In evaluating these criteria, EPA considered the direct and
indirect effects of product use, and the direct and indirect
effects of alternatives, such as ozone-depletion potential,
flammability, toxicity, corrosiveness, energy efficiency, ground
level air hazards, and other environmental factors.
If any safety or health issues prevented a substitute from
being used in a given product, EPA then considered that substitute
to be "unavailable" at this time for that specific product or
use. As new information becomes available on the health and
safety effects of possible substitutes, EPA may re-evaluate
determinations made regarding the nonessentiality of products
not covered in today's rulemaking or, as stated above, the Agency
may take action under section 612.
4. Other Relevant Factors. Section 610(b)(3) does not specify
that EPA must consider the economic impact of banning a product,
as in the 1978 ban, but the Agency did consider the economic
impact of such an action as an "other relevant factor." EPA
believes that it has the authority under section 610(b)(3) to
consider any relevant factors, including costs, in determining
whether products are nonessential.
In considering the immediate economic impact of banning the
use of a Class I substance in a product, EPA attempted to compare
the cost of the possible substitutes and the cost of the Class
I substance, including the effects of the excise tax and the
limits on production and importation under the Clean Air Act,
when this information was available. EPA believes that in many
cases the tax and supply limits have already provided a compelling
incentive for manufacturers using Class I substances to switch
to substitutes. EPA also considered the available information
on manufacturing costs associated with using substitutes or
switching to alternative market lines. Finally, EPA attempted
to assess the societal costs of eliminating the product altogether
where appropriate.
Another relevant factor that EPA considered was the impact
of state or local laws prohibiting the use of certain substances
commonly used as substitutes for ozone-depleting chemicals.
For example, Massachusetts, New Jersey and California all
specifically
limit the use of methylene chloride, which is used as a CFC-
substitute for some flexible foam products. Other areas have
limits on the general emissions of volatile organic compounds
(VOCs). If the only available substitute for the use of a Class
I substance in a product-including both alternative chemicals
and product substitutes-was a chemical whose use was prohibited
in certain areas, EPA considered substitutes to be unavailable
for that product in those areas. As stated above, however, the
lack of available substitutes did not automatically disqualify
a product from being prohibited as nonessential.
Finally, after publication of the proposed rule, EPA received
comments on a number of products not specifically covered in
the proposed rule. A number of these products, such as tobacco
expanded with CFCs and closed cell polyurethane foam used as
a flotation foam, may meet the criteria for designation as
nonessential
products subject to the Class I nonessential products ban. EPA
believes, however, that it would be inappropriate to include
new product categories in the ban which were not considered
by the proposed rule. Consequently, today's rulemaking covers
only products included in the January 16, 1992 proposed rule.
EPA has the authority to consider designating as nonessential
other products which release ozone-depleting substances in future
rulemakings, however, and the Agency may consider such action
if at a later date EPA determines that these products satisfy
the criteria for nonessentiality.
In evaluating products for inclusion in the Class I nonessential
products ban, EPA considered all of the criteria described above.
Any one of the criteria outlined above could be the deciding
factor in relation to all other factors in determining whether
a product was, or was not, covered under the ban.
3. Other Products
In determining which products to prohibit under section
610(b)(3),
the Agency considered every major use sector (although not each
individual product or brand) of each Class I substance (CFCs,
halons, carbon tetrachloride and methyl chloroform), including
refrigeration and air conditioning, solvent use, fire
extinguishing,
foam blowing, and aerosol uses. Based on this review, the Agency
identified three broadly defined products for further preliminary
evaluation: aerosol products and pressurized dispensers containing
CFCs, plastic flexible and packaging foams, and halon fire
extinguishers
for residential use. EPA then analyzed these three sectors in
more detail before preparing the January 16, 1992 NPRM.
EPA had reason to believe that in each of these sectors two
important conditions existed: substitutes were already available
for the product or the Class I substance used or contained in
that product; and, either the affected industry had, for the
most part, moved out of the Class I substances or the market
share of products using or containing Class I substances was
small and shrinking.
In addition, in the case of aerosols and plastic flexible
and packaging foams, section 610(d) imposes a self-effectuating
ban on the sale or distribution of such products containing
or produced with Class II substances after January 1, 1994.
The Agency was concerned that failure to ban nonessential products
containing or produced with Class I substances in these use
sectors would provide an incentive for the affected industries
to switch back to the use of Class I substances after that date,
resulting in increased damage to the environment.
In the January 16, 1992 NPRM, EPA proposed to ban the sale
or distribution of aerosols and pressurized dispensers containing
CFCs and plastic flexible and packaging foams manufactured with
CFCs. In addition, it requested public comment on the advantages
and disadvantages of including residential home fire extinguishers
in the ban, but it did not propose including these products
in this rulemaking. The reasoning behind EPA's decision is
described
in greater detail below.
Refrigeration and air-conditioning, including mobile air-
conditioning, represent the largest total use of Class I substances
in the United States (31.8 percent weighted by ozone-depletion
potential in 1987). Substances are available for some refrigeration
and air-conditioning products. EPA believes that substitutes
for some uses, like refrigerant in motor vehicle air conditioners,
are already available, and that the affected industries are
switching to these alternatives (the major automobile companies,
for example, are introducing new models which use HFC-134a rather
than CFC-12 in their air conditioning systems). However, potential
substitutes for other refrigeration and air-conditioning uses
are still being evaluated. For example, HCFC-123 has been proposed
as a replacement for CFC-11, but toxicity testing of HCFC-123
has only recently been completed.
EPA did not include prohibitions on the use of Class I
substances
in refrigeration or air conditioning in the proposed rule because
conclusions on the appropriate substitutes were not anticipated
to be available within the time-frame of this rulemaking.
Accordingly,
EPA could not conclude that any refrigeration or air conditioning
uses were nonessential at the time of proposal. The industry
continues to investigate chemical substitutes for CFCs in deep
freeze applications, as well as substitutes for CFC-114 and
CFC-115. EPA plans to specifically address refrigeration and
air-conditioning uses of Class I substances under its upcoming
section 608 regulations to require the recovery and reuse of
refrigerants in these applications.
Solvent uses of Class I substances, including commercial
electronics de-fluxing, precision cleaning, metal cleaning and
dry cleaning, also represent a significant use in the U.S. (21.7
percent weighted by ODP in 1987). Industry has identified
potentially
available substitutes for nearly all of the thousands of products
currently manufactured with Class I solvents, and many companies
have already phased out the use of CFCs in certain products.
EPA did not address solvent use in the proposed regulations
because the sheer number of products and the range of potential
substitutes (each with specific technical and health and safety
issues) made it impossible for EPA to conclude that substitutes
are currently available for any of these specific uses, and
thus that such uses were nonessential, within the short statutory
time-frame of this rulemaking. However, the Agency recognizes
that the solvent industry is also making significant progress
toward the elimination of ozone-depleting chemicals as solvents.
EPA considered the use of Class I substances in fire
extinguishing
applications in its initial review as well. Halons are widely
used in fire extinguishing systems today. These fire extinguishing
systems include both total flooding systems (such as stationary
fire suppression systems in large computer facilities) and
streaming
systems (such as hand-held fire extinguishers). In evaluating
possible nonessential uses of halons in fire fighting, the Agency
divided the fire protection sector into six broad end uses:
(1) Residential/Consumer Streaming Agents, (2)
Commercial/Industrial
Streaming Agents, (3) Military Streaming Agents, (4) Total Flooding
Agents for Occupied Areas, (5) Total Flooding Agents for Unoccupied
Areas, and (6) Explosion Inertion.
Although halons are extremely effective at fighting fires,
they have extremely high ODPs. In fact, although total halon
production (measured in metric tons) comprised just 2 percent
of the total production of Class I substances in 1986, halons
represented 23 percent of the total estimated ozone depletion
potential of CFCs and halons combined. Consequently, halons
in fire extinguishing equipment represent a significant use
sector in terms of ozone depleting potential, and the Agency
has worked closely with industry and the military to minimize
halon emissions and encourage a rapid transition to acceptable
substitutes. Halon recycling and banking is instrumental in
reducing halon emissions and will extend the availability of
these chemicals past the phaseout.
The fire protection community has made considerable progress
in adopting alternatives to halons in fire protection applications.
Most recent efforts to develop substitutes for halon have focused
primarily on halocarbon chemicals, but several "alternative"
agents such as water, carbon dioxide, foam, and dry chemical
are already in widespread use as fire extinguishants and can
be expected to find use as substitutes for halons in many
applications.
Substitutes for halons, whether other halocarbons or
alternatives
such as water, should meet four general criteria to provide
a basis for determining that the use of halon in residential
fire extinguishers is nonessential. They must be effective fire
protection agents, they must have an acceptable environmental
impact, they must have a low toxicity, and they must be relatively
clean or volatile. In addition, they must be commercially available
as a halon replacement in the near future.
The excise tax on halons is scheduled to rise from $0.25
per pound to $13.05 per pound for halon 1211 and $43.50 per
pound for halon 1301 in 1994. EPA anticipates that this dramatic
increase in the price of halons will provide a significant economic
incentive for consumers to shift from halons to available
substitutes,
and for producers to develop halon substitutes and substitute
products.
After its initial review of this use sector, EPA concluded
that while satisfactory substitutes were not yet available in
most commercial and military applications within the short
statutory
time-frame of this rulemaking, certain substitutes were already
commercially available for hand-held halon fire extinguishers
in residential settings. Consequently, the Agency decided to
evaluate this application more closely in order to determine
whether residential fire extinguishers containing halon should
be designated nonessential products, or whether the continued
use of halons, despite the imposition of the excise tax and
the impending production phaseout, indicated that this application
did not meet the criteria for nonessentiality. With this end
in mind, the proposed rule requested comments on whether these
products met the criteria for nonessentiality as well as whether,
due to the excise tax on ozone-depleting substances, banning
these products would be unnecessary in order to effectuate the
statutory goal of removing such products from interstate commerce.
EPA considered aerosols and pressurized dispensers likely
candidates for designation as nonessential products because
a great deal of information on substitutes for CFCs in these
applications already existed. Research on substitutes for CFCs
in aerosol applications began in the 1970s in response to the
early studies on stratospheric ozone depletion and the 1978
ban on the use of CFCs as aerosol propellants. Consequently,
extensive data already existed on possible substitutes for most
remaining aerosol uses. EPA's evaluation concentrated on products
which had been exempted or excluded from the 1978 ban on CFC
propellants because these products were the only remaining legal
applications of CFCs in this use sector.
The 1978 aerosol ban prohibited the manufacture of aerosol
products using CFCs as propellants. Other uses of CFCs in aerosols
(such as solvents, active ingredients, or sole ingredients)
were not included in the ban. In addition, certain "essential
uses" of CFCs as aerosol propellants were exempted from the
ban because no adequate substitutes were available at the time.
Consequently, although the use of CFCs in aerosols was reduced
dramatically by the 1978 ban, the production of a number of
specific aerosol products containing CFCs is still legal. These
products include: metered dose inhalant drugs; contraceptive
vaginal foam; lubricants for the production of pharmaceutical
tablets; medical solvents such as bandage adhesives and adhesive
removers; skin chillers for medical purposes; aerosol tire
inflators;
mold release agents; lubricants, coatings, and cleaning fluids
for industrial/institutional applications to electronic or
electrical
equipment; special-use pesticides; aerosols for the maintenance
and operation of aircraft; aerosols necessary for the military
preparedness of the United States of America; diamond grit spray;
single-ingredient dusters and freeze sprays; noise horns; mercaptan
stench warning devices; pressurized drain openers; aerosol
polyurethane
foam dispensers; and whipped topping stabilizers. After examining
the available information (see Background Document on
Identification
of Nonessential Products that Release Class I Substances and
Alternative Formulations in Docket), EPA concluded that
satisfactory
substitutes were available for most uses of CFCs in aerosols
and pressurized dispensers. As a result, the Agency proposed
banning all uses of CFCs in aerosols and pressurized dispensers
except for certain products, such as medical devices, that it
specifically exempted.
EPA examined the use of Class I substances in foam products,
relying heavily on the research conducted for the 1991 United
Nations Environment Programme (UNEP) technical options report
on foams (see Technical Options Report). The UNEP report divided
polyurethane foam into three major categories: rigid foam, flexible
foam, and integral skin foam. It further subdivided rigid
polyurethane
foams into functional categories: open cell packaging foam and
closed cell insulating foam. EPA used the same categories in
the section 610 rulemaking. Based on this research, the Agency
proposed prohibiting the use of CFCs in flexible and packaging
foams in the NPRM. The Agency focused on these foam sectors
due to the clear availability of substitutes such as water-blown
foam, reformulated foams, and alternative chemicals such as
HCFC-22 and methylene chloride. EPA did not propose to prohibit
the use of CFCs in insulating foam, expanded polystyrene foam,
polyvinyl chloride foam, or integral skin foam. The reasons
for this decision are described below.
EPA did not propose the inclusion of insulating foams
manufactured
with CFCs in the Class I nonessential products ban. Although
flexible and packaging foams have currently available substitutes,
the UNEP technical options report estimated that the elimination
of CFCs in insulating foams would not be technical feasible
until 1995 in developed countries. Rigid insulating foams using
CFCs were exempt from the excise tax in 1990, and they are subject
to a reduced tax until 1994. The required ban on the use of
Class II substances in foam products in section 610(d) also
specifically exempts insulating foams. As a result, EPA proposed
banning only flexible and packaging foams in the NPRM. The Agency
intends to address insulating foams under the section 612
rulemaking.
While polyvinyl chloride foam and expanded polystyrene foam
could be considered flexible and packaging foams, EPA did not
propose banning products made with expanded polystyrene foam
or polyvinyl chloride foam in the NPRM because the 1991 UNEP
report indicates that CFCs were never used in the production
of either expanded polystyrene or polyvinyl chloride foams.
As a result, EPA believes that it is unnecessary to formally
prohibit the use of CFCs in these products, and the Agency did
not include them in the proposed Class I nonessential products
ban. However, EPA reserves the right to take action in the future
under this section to prohibit as nonessential the use of CFCs
in these products should it appear appropriate.
EPA also considered including integral skin foam in the Class
I nonessential products ban. The UNEP report treated polyurethane
integral skin foam as a separate category distinct from rigid
insulating, rigid packaging, and flexible foams. In preparing
the proposed rule, EPA utilized the same categories as the 1991
UNEP technical options report on foams. Consequently, EPA does
not consider integral skin foam to be a "flexible or packaging
foam." Integral skin foam is used in a number of applications,
including motor vehicle safety applications, as suggested by
section 610(d)(3)(B). EPA was not able to conclusively determine
in the time available that adequate substitutes for integral
skin foam, or for the use of CFCs in the production of integral
skin foam, were available. As a result, EPA did not include
them in the proposed Class I nonessential products ban. However,
EPA must address integral skin foams in its rulemaking for the
Class II nonessential products ban. Section 610(d)(2)(B) exempts
integral skin, rigid, or semi-rigid foam utilized to provide
for motor vehicle safety in accordance with Federal Motor Vehicle
Safety Standards where no adequate substitute substance (other
than a Class I or Class II substance) is practicable for
effectively
meeting such Standards from the nonessential products ban on
foams containing, or manufactured with, Class II substances.
The Agency reserves the right to take action under section 610
to prohibit the use of CFCs in integral skin foams at that time,
or some other future time, if necessary.
EPA did not propose banning any products releasing the other
Class I substances (halons, carbon tetrachloride and methyl
chloroform) in the NPRM, although it requested comments on the
need to ban halon fire extinguishers for residential use (for
a discussion of halons, see the preceding discussion in this
section, as well as section III.B.5. in today's preamble). EPA
estimates that in the United States today, most carbon
tetrachloride
is consumed in the production of CFCs. The nonessential products
ban is directed at specific end uses, not feedstocks, and
therefore,
the Agency has decided not to take action on this chemical under
section 610. Methyl chloroform, also a Class I chemical, is
widely used as a solvent for metal cleaning, in adhesives and
coatings, and in aerosols. Methyl chloroform is used in thousands
of different products. EPA believes that substitutes are available
for many of the current uses of methyl chloroform, but these
substitutes could not be thoroughly evaluated within the time
constraints established in the Act. Consequently, EPA could
not conclude that any such uses were nonessential. Thus, EPA's
proposed rule did not cover many use sectors or products which
use methyl chloroform. Nevertheless, EPA has reason to believe
that substitutes exist for a number of these applications, and
many of these uses of methyl chloroform may be addressed in
the Agency's section 612 rulemaking.
EPA will further analyze the sectors described above on which
it has insufficient information at this time and may take further
regulatory action to ban uses in such sectors as appropriate
once the agency obtains sufficient data.
EPA selected the product sectors identified in today's notice
for the following reasons. First, EPA believes that they all
clearly fit the criteria specified by section 610(b)(3) based
upon information and analysis the Agency already had or could
obtain within the tight regulatory time-frame required by the
statute. In fact, all the identified products are relatively
well-defined, have commercially available alternatives, and
have been the subject of prior federal or state-level rulemakings
or voluntary agreements to limit the use of ozone-depleting
substances.
EPA also took into consideration the prohibition required
by section 610(d) on certain products releasing Class II
substances,
which goes into effect in 1994. EPA is concerned that banning
the use of Class II substances in certain products in 1994,
while permitting the use of the more harmful Class I substances
in the same products, could provide an environmentally harmful
incentive that encourages the use of Class I substances over
Class II substances. Thus, the statutory prohibition in section
610(d) provided further direction in choosing products on which
to focus at this time under section 610.
As a result of this process, the NPRM proposed prohibiting
the sale and distribution of flexible and packaging foam using
CFCs and aerosols and other pressurized dispensers containing
CFCs. Below, EPA defines these product categories and then presents
an overview of how each one meets the criteria specified by
section 610(b)(3) and discussed above in section I.I.1. More
detailed analyses of the "other" products to be prohibited are
provided in the background documents accompanying this rulemaking
(see Docket A-91-39).
a. Flexible and packaging foam using CFCs. CFCs have been
widely used in the production of a variety of foam plastics.
CFC-11, -12, -113, and -114 have all been used as blowing agents
in the manufacture of foam products such as building and appliance
insulation, cushioning products, packaging materials, and flotation
devices. According to the 1991 UNEP Flexible and Rigid Foams
Technical Options Report, the foam plastics industry used
approximately
174,000 metric tons of CFCs worldwide in 1990, a 35 percent
drop from the industry's estimated CFC consumption in 1986.
The UNEP report also estimates that, of the CFCs consumed by
the foam plastics industry, approximately 80 percent were used
in building and appliance insulation while the remaining 20
percent found use as blowing agents in applications such as
packaging, cushioning and flotation. In the United States, CFC
use in many foam types has decreased dramatically since 1986.
In some applications, especially in flexible and packaging foams,
most manufacturers have already phased out the use of CFCs
completely.
CFCs have been widely used as blowing agents in the
manufacturing
process of many foam products because they possess suitable
boiling points and vapor pressures, low toxicity, and very low
thermal conductivity; in addition, they are non-flammable, non-
reactive, and, until the introduction of the excise tax and
production limits, cost-effective. The excise tax levied by
Congress in 1989 significantly raised the price of CFCs (except
for use in the manufacture of rigid insulating foam, which was
exempt from the tax in 1990 and is subject to a greatly reduced
tax of approximately $0.25 per pound until 1994), and as a result,
foam manufacturers have switched to non-CFC substitutes in many
areas.
Even before the tax went into effect, several groups of foam
manufacturers, including the Foodservice and Packaging Industry
and the Polyurethane Foam Association, made significant voluntary
efforts in cooperation with the Agency and several environmental
groups to eliminate or reduce the use of CFCs in their products
ahead of the required phaseout timetable. In addition, one industry
group has worked with the Agency to develop and make available
an in-depth description of technical options to achieve these
reductions (see Handbook for Eliminating and Reducing
Chlorofluorocarbons
in Flexible Foams). Among the many commonly used substitutes
for CFCs in flexible and packaging foam are HCFCs, hydrocarbons
and methylene chloride (See below for further discussion of
these substitutes).
The 1991 UNEP technical options report provides information
on potential substitutes for the entire foam industry by foam
type. Each type of foam has a distinct set of product and process
application needs; for example, an important distinction exists
between foam plastics where the cells are closed, trapping the
blowing agent inside, and those with open cells which release
the blowing agent during the manufacturing process.
For the purposes of today's rulemaking, EPA identifies the
following categories as "flexible and packaging foam:" Polyurethane
flexible slabstock and molded foams, open cell rigid polyurethane
packaging foam, polyethylene foam, polypropylene foam, and extruded
polystyrene sheet foams. The included polyurethane foams are
open cell thermosetting foams, where the blowing agent is mixed
with chemicals which react to form the plastic. The other included
foams are closed cell thermoplastic foams, where the blowing
agent is injected into a molten plastic resin which hardens
upon cooling.
EPA first suggested the possibility of banning flexible and
packaging foams in its December 14, 1987 Proposed Rule (52 FR
47489) and again in its August 12, 1988 Advanced Notice of Proposed
Rulemaking (53 FR 30604). Of the foam types identified as "flexible
and packaging," EPA believes that the producers of polyurethane
flexible molded foam, open cell rigid polyurethane poured foam,
polyethylene foam, polypropylene foam and extruded polystyrene
sheet foam have already eliminated the use of CFCs. EPA also
believes that CFC emissions from the manufacture of flexible
polyurethane slabstock foam can be reduced to zero because
manufacturers
have largely converted from CFCs to readily available substitutes
and are currently exploring alternative technologies.
EPA proposed prohibiting the sale and distribution of flexible
and packaging foams using CFCs in the January 16, 1992 NPRM
primarily because CFC use has already largely stopped in these
foam types following voluntary efforts and the imposition of
the excise tax. In addition, the Agency believes that if CFCs
are not prohibited in flexible and packaging foams, the self-
effectuating 1994 ban on noninsulating foam products made with
or containing Class II substances could set up an environmentally
harmful incentive for foam manufacturers who have not switched
out of CFCs to continue to use them, or for those using HCFCs
to switch back to CFCs.
In making its determination that flexible and packaging foams
are nonessential, EPA examined their purpose and intended use.
Flexible and packaging foams are used in furniture and upholstery,
transport and protective packaging, cushioning, protective wrap,
food containers, and flotation devices. EPA does no consider
the purposes of flexible and packaging foams "frivolous."
EPA determined, however, that adequate substitutes for CFCs
in the production of flexible and packaging foams were indeed
available. Substitute options currently being used in flexible
and packaging foams vary depending on the foam type in question.
Options for flexible polyurethane slabstock foam production
include increased foam density or the use of more water in the
production process, as well as the substitution of acetone,
HCFCs, methyl chloroform, and methylene chloride. Other near-
term alternatives available to eliminate CFCs in flexible
polyurethane
slabstock foam include new polyol technology which increases
softness with little or no CFC use and "AB" technology which
uses formic acid to double the quantity of gas generated in
the reaction of isocyanate with water. Alternatives for the
production of other flexible and packaging foams include
hydrocarbons,
carbon dioxide, or HCFCs. EPA believes that the fact that the
great majority of manufacturers of these products have already
switched our of CFCs to commercially available substitutes
indicates
that the use of CFCs in this product area is nonessential.
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
plastic flexible and packaging foams; however, EPA believes
that with the proper precautions, each of these alternatives
can be used safely.
Methylene chloride is classified by EPA as a B2 (probable
human) carcinogen with an Occupational Safety and Health
Administration
Permissible Exposure Limit (OSHA PEL) of 25 parts per million.
Appropriate worker health and safety practices must be followed
by flexible foam manufactures in those states that allow the
use of this chemical.
Hydrocarbons and acetone are flammable. Manufacturers must
take special safety precautions, including appropriate ventilation,
when using these substances. Hydrocarbons and acetone are also
volatile organic compounds (VOCs) which can contribute to the
formation of ground-level air pollution. States must consider
VOC emissions in meeting requirements of State Implementation
Plans (SIPs) to attain the ground-level ozone National Ambient
Air Quality Standards (NAAQS).
HCFCs (particularly-141b) and methyl chloroform, although
they have much less effect on stratospheric ozone than do CFCs,
have measurable ozone-depletion potentials (see listing notice
56 FR 2420; January 22, 1991). In addition, these substances
may be regulated elsewhere in title VI (sections 604, 605, 606,
608, 609, 611, 612, and 613).
The formic acid used in AB technology creates carbon monoxide
and has a Ph of 3, so it too requires special care in handling.
EPA believes that none of the health and safety issues described
above should preclude the prohibition of CFC use in flexible
and packaging foams under section 610. Each technology presents
its own associated set of hazards, including the use of CFCs.
The Agency believes, however, that if the proper precautionary
steps are taken, these alternatives can be used safely. EPA
does not necessarily endorse all of the substitutes currently
being used by manufacturers in place of CFCs and intends to
carefully examine the issue of safe alternatives under section
612.
In making its determination to classify flexible and packaging
foams as nonessential, EPA also considered several other relevant
factors. As noted earlier, the majority of flexible and packaging
foam manufacturers have already phased out the use of CFCs.
The excise tax and the phaseout of CFR production provide
significant
incentives for those manufacturers still using CFCs to switch
to substitutes. In addition, the accelerated phaseout should
provide manufacturers with an additional incentive to move out
of the use of Class I substances as rapidly as possible. As
a result, EPA anticipates that the future economic impact from
today's rulemaking will be minimal, even for small businesses
(see Background Document).
Finally, EPA recognizes that some states limit the use of
methylene chloride. Flexible foam manufacturers still using
CFCs in these areas would be unable to use this particular
substitute
in the production of super-soft and low-density flexible foams.
EPA recognizes, however, that several substitute options apart
from methylene chloride (e.g., modified polyols and water-blown
foam) are currently in use or will be available in the near
future as substitutes for these foam types (production of flexible
slabstock foam is discussed in greater detail in section
III.B.2.b.).
Therefore, EPA proposed banning the use of CFCs in areas where
methylene chloride use is restricted, as well as in areas where
it is not.
b. Aerosols and other pressurized dispensers containing CFCs.
In the past, CFCs have been used extensively in aerosol products
worldwide, mainly as propellants, but also as solvents and
diluents,
and as the active ingredients in some products. In the mid-1970s
the use of CFC-11 and -12 in aerosols accounted for 60 percent
of the total use of these chemicals worldwide. Due to mandatory
and voluntary reduction programs in several countries, including
the 1978 ban in the United States, this use has been significantly
reduced. However, in 1986, aerosol use was still substantial,
accounting for 300,000 metric tons, representing 27 percent
of the global use of CFCs. In the United States, 9870 metric
tons were used in aerosols exempted or excluded from the 1978
ban, representing approximately 2.5 percent of all Class I
substances
(weighted by ozone-depletion potential) in 1988.
In the January 16, 1992 NPRM, EPA defined "aerosols and other
pressurized dispensers containing CFCs" to include both propellant
and non-propellant uses of CFCs. Propellant uses of CFCs were
banned by EPA in 1978, except for essential uses. Non-propellant
uses of CFCs, such as solvent use, were excluded from the 1978
ban. EPA has re-examined all of the products excluded from the
1978 ban, as well as those specifically exempted from the 1978
ban. EPA has also examined products identified by commenters
to the proposed rule. As EPA stated in its August 12, 1988 Advanced
Notice of Proposed Rulemaking (53 FR 30604), several alternative
propellants and delivery systems have been developed since the
original aerosol exemptions were granted. In addition, many
previously exempted or excluded products no longer use CFCs
(see Alternative Formulations).
EPA proposed banning CFCs in aerosols and other pressurized
dispensers primarily because a variety of substitutes for CFCs
are now widely available and currently in use. In addition,
the Agency believes that it is important to ban the use of CFCs
in aerosols and pressurized dispensers due to the ban on the
use of Class II substances in such products under section 610(d).
Section 610(d) bans the sale, distribution, or offer of sale
or distribution in interstate commerce of aerosols or pressurized
dispensers containing a Class II substance effective January
1, 1994. EPA believes that if the aerosols and other pressurized
dispensers containing CFCs are not included in the Class I
nonessential
products ban, the ban on aerosols and pressurized dispensers
containing Class II substances in 1994 could set up an
environmentally
harmful incentive for manufacturers who have not switched out
of CFCs to continue to use them, or for those using HCFCs to
switch back to CFCs. Because the ozone depletion potentials
of CFCs are so much greater than those of HCFCs, the continued
use of CFCs in this application would have a significant adverse
impact on the environment.
In making its determination that the use of CFCs in aerosols
and pressurized containers was nonessential, EPA looked at the
purpose or intended use of these products. CFCs have been used
in aerosol products and other pressurized dispenser products
as propellants, solvents, diluents, and active ingredients.
Those uses exempted or excluded from the 1978 ban included:
metered dose inhalant drugs; contraceptive vaginal foam; lubricants
for the production of pharmaceutical tablets; medical solvents
such as bandage adhesives and adhesive removers; skin chillers
for medical purposes; aerosol tire inflators; mold release agents;
lubricants, coatings, and cleaning fluids for
industrial/institutional
applications to electronic or electrical equipment; special-
use pesticides; aerosols for the maintenance and operation of
aircraft; aerosols necessary for the military preparedness of
the United States of America (primarily pesticides, aircraft
and electronics maintenance products, and specialty lubricants);
diamond grit spray; single ingredient dusters and freeze sprays;
noise horns; mercaptan stench warning devices; pressurized drain
openers; aerosol polyurethane foam dispensers; and whipped topping
stabilizers. EPA believes that the purposes of these aerosols
and pressurized dispensers are generally not "frivolous."
However, EPA determined that adequate substitutes for CFCs
in the production of most aerosol products and pressurized
dispensers
were indeed available. EPA believes that the fact that the great
majority of manufacturers of these products have switched out
of CFCs (see Background Document) indicates that the use of
CFCs in this product area is nonessential.
Currently available substitutes for aerosols and other
pressurized
dispensers include: hydrocarbons (predominantly propane and
butane); other higher priced/special use flammable gases (dimethyl
ether, HCFC-142b, and HFC-152a); nonflammable compressed gases
(such as carbon dioxide, nitrogen oxide, and HCFC-22, alone
or in mixtures); solvent substitutes (methylene chloride and
dimethyl ether/water mixtures); non-aerosol spray dispensers
(finger pumps, trigger pumps, and mechanical pressure dispensers);
and non-spray dispensers (solid sticks, roll-ons, brushes, pads,
shakers, and powders). Potentially available substitutes for
propellant and solvent uses of CFCs in aerosols and other
pressurized
dispensers include HCFCs-123, -124, -141b, 142b, and HFC-134a.
In evaluating possible substitutes for CFCs in aerosols and
other pressurized dispensers, EPA relied heavily on existing
Agency research due to the short statutory timeframe for this
rulemaking, especially its 1989 report Alternative Formulations
to Reduce CFC Use in U.S. Exempted and Excluded Aerosol Products.
The UNEP Technical Options Committee report on aerosols, sterilants
and miscellaneous uses of CFCs also provided valuable information
on possible substitutes for CFCs in these applications (see
Aerosols). In addition, many commenters requesting exemptions
for specific products provided information on possible substitutes,
as did several commenters opposed to exemptions for specific
products.
EPA believes that manufacturers have been working to identify
substitutes for CFCs in all of their product areas. However,
there are several products for which EPA has not identified
satisfactory substitutes, and which, in its January 16, 1992
NPRM, EPA proposed to exclude from the ban on aerosols and other
pressurized dispensers containing CFCs. These products are:
contraceptive vaginal foams; lubricants for pharmaceutical and
tablet manufacture; metered dose inhalation devices; gauze bandage
adhesives and adhesive removers; commercial products using CFC-
11 or CFC-113, but no other CFCs, as lubricants, coatings and
cleaners for electrical or electronic equipment; commercial
products using CFC-11 or CFC-113, but no other CFCs, as lubricants,
coatings and cleaners for aircraft maintenance uses; and commercial
products using CFC-11 and CFC-113 as release agents for molds
used in the production of plastic and elastomeric materials.
In addition, EPA received information during the public comment
period about the lack of available substitutes for certain products
of which the Agency had previously been unaware, such as red
pepper safety sprays and document preservation sprays. EPA
considered
requests for exemptions for these products while preparing the
final rule, and on the basis of this information excluded certain
additional aerospace applications of CFCs from coverage in today's
rulemaking (for additional information on the products mentioned
above, see Alternative Formulations and Background Document).
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
aerosol products and other pressurized dispensers; however,
EPA believes that with the proper precautions these alternatives
can be used safely.
Hydrocarbons are flammable. Manufacturers and consumers must
take special safety precautions, including appropriate ventilation,
when using these substances. Hydrocarbons are also volatile
organic compounds (VOC)s which can contribute to the formation
of ground-level air pollution. States must consider VOC emissions
in meeting the requirements of State Implementation Plans to
attain the ground-level ozone National Ambient Air Quality
Standards.
HCFCs (particularly -141b) and methyl chloroform, although
they have much less effect on stratospheric ozone than CFCs,
do have measurable ozone-depletion potentials (see listing notice
56 FR 2420; January 22, 1991). In addition, these substances
may be regulated elsewhere in title VI (sections 604, 605, 606,
608, 609, 611, 612, and 613).
Methylene chloride is classified by EPA as a B2 (probable
human) carcinogen, with an Occupational Safety and Health
Administration
Permissible Exposure Limit (OSHA PEL) of 25 parts per million.
Appropriate worker health and safety practices must be followed
by aerosol and pressurized dispenser manufacturers in those
states that allow the use of this chemical.
EPA believes that none of the health and safety issues described
above are persuasive enough to preclude the identification of
CFC-use in aerosols and other pressurized dispensers as a
nonessential
product under the requirements of section 610. However, EPA
does not necessarily advocate all substitutes currently being
used by manufacturers in place of CFCs. EPA intends to carefully
examine the issue of safe alternatives under regulations to
implement section 612.
In making its determination to classify aerosols and other
pressurized dispensers as nonessential, EPA also considered
several other relevant factors. First, most propellant uses
of CFCs have been banned already under the Toxic Substances
Control Act (TSCA) since 1978. Today, aerosols and pressurized
dispensers containing CFCs make up only a small percentage of
existing aerosol products; consequently, EPA estimates that
the economic impact of banning CFC use in these applications
will be minimal (see Background Document). Second, the excise
tax provides an ever-increasing economic incentive for
manufacturers
of aerosol and pressurized dispenser products which were exempted
or excluded from the 1978 ban to switch to substitutes. In
addition,
the accelerated phaseout of CFC production will force most
manufacturers
to convert to substitutes as quickly as possible. As a result,
EPA anticipates minimal future economic impact from banning
aerosols and other pressurized dispensers containing CFCs under
section 610.
4. Recordkeeping Requirements
In the NPRM, EPA proposed recordkeeping requirements to monitor
compliance with the ban on the sale or distribution of
chlorofluorocarbon-
containing cleaning fluids for noncommercial electronic and
photographic equipment. Recordkeeping was one of four options
considered by EPA for restricting the sale of these products
to commercial users. These options were described in the January
16, 1992 NPRM.
The first option would have required that CFC-containing
cleaning fluids be sold in bulk. However, EPA recognized that
some commercial users needed only small quantities of these
products, and that the bulk sales requirement would impose a
significant burden on such entities. Moreover, this restriction
would raise the cost of these products for noncommercial users,
but it would not prevent noncommercial users from purchasing
them.
The second option EPA proposed was to prohibit the sale of
CFC-containing cleaning fluids by outlets which primarily serve
noncommercial users. However, as with the first option, this
restriction would not prevent noncommercial users from purchasing
these products. In addition, it would be a burden on commercial
users who purchase these products at retail outlets. Moreover,
it would be difficult to adequately define retail stores that
are predominantly oriented to noncommercial users.
The third option EPA proposed would have required that stores
post notices stating that the sale of these products to
noncommercial
users was prohibited; alternatively, EPA considered requiring
warning labels on containers of these cleaning fluids indicating
that they were intended for commercial use only. EPA did not
include either of these provisions in the proposed regulatory
language because neither of these alternatives by itself would
have promoted effective EPA enforcement of the ban on the sale
of these cleaning fluids to noncommercial users. In addition,
the EPA was concerned that the labeling requirement would be
costly and unnecessarily burdensome, given that such products
are already also subject to section 611 of the Act. Section
611 requires warning labels on containers of Class I or Class
II substances and products containing or manufactured with Class
I substances. Consequently, in its NPRM, EPA opted for the fourth,
more restrictive option presented, which proposed recordkeeping
requirements, because this was the only option considered which
EPA believed would allow the Agency to effectively enforce the
prohibition on the sale of these products to noncommercial users.
The NPRM discussed two potential recordkeeping regimes, one
requiring annual records of sales to commercial users and one
which was transaction-specific. In each case, sellers would
require purchasers to provide identifying information, as well
as a commercial identification number, in order to verify that
the products were being purchased for commercial use; consumers
without commercial identification numbers would be unable to
purchase CFC-containing cleaning fluids. Commercial identification
numbers were defined in the proposed rule as federal employer
identification numbers, state sales tax exemption numbers, or
local business license numbers. In a transaction-specific system,
distributors would be required to record the purchaser's
identifying
information, transaction dates, and the quantities of cleaning
fluids which were purchased; in addition, distributors would
be required to maintain records of their own purchases of these
products. In this way, EPA could compare distributors' sales
and purchases of these products to ensure compliance. Under
an annual recordkeeping system, distributors would be required
to maintain records of commercial purchasers but not of individual
transactions. As a result, EPA would be unable to verify through
annual recordkeeping that a distributor had sold these products
exclusively to commercial users. EPA proposed a transaction-
specific recordkeeping requirement in the proposed rule, but
it requested comment on the advantages and disadvantages of
annual and transaction-specific recordkeeping requirements in
the preamble.
In connection with the exemptions from the 1978 ban, EPA
imposed reporting requirements under 40 CFR 712.4 for those
products which used a CFC propellant. These reporting requirements
expired in 1982. Since that time, the 1978 ban has functioned
effectively without specific reporting requirements concerning
the commercial uses of these substances. EPA believes that,
as a result of the 1978 ban, noncommercial use of CFC-containing
aerosol lubricants, coatings, aircraft maintenance products
and mold release agents is currently negligible. Therefore,
EPA did not propose recordkeeping requirements in these areas.
II. Summary of Comments
A public hearing on the proposed rule was held on January
31, 1992. Six groups presented oral comments on the proposed
requirements, and five of them submitted written comments to
the Agency as well. A transcript of the hearing is contained
in the public docket (see Docket).
The Agency received a total of 190 comments on the proposed
rule (see Docket). Many commenters expressed support for the
proposed rule, and some suggested expanding the types of products
covered. Other commenters criticized the scope of the rule,
the criteria for determining whether products are nonessential,
and the citation of section 608 as additional authority for
restricting the use of Class I substances. A number of commenters
made suggestions regarding record-keeping requirements, and
several requested clarification of the definition of "interstate
commerce." Finally, a number of commenters objected to the possible
inclusion of a number of products in the ban, such as
self-pressurized
containers, medical devices, and residential halon fire
extinguishers.
III. Responses to Major Public Comments
A document summarizing the public comments to this rulemaking
and responding fully to all significant comments is available
in the public docket for this final rule (see Response to Comments
for Proposed Rule on Nonessential Products Made with Class I
Substances). The major issues raised by the commenters and the
Agency's responses to them are described below.
A. Scope and Specific Provisions of Nonessential Rule
1. Support for the Proposed Rule
A number of commenters expressed their support for the proposed
rule. One commenter, an industry group, supported the proposed
rule in its treatment of available substitutes, consideration
of other relevant factors, and the selection of other products.
Another industry group supported the Agency's general approach
and actions in proposing to ban the products listed in the NPRM.
Many commenters wrote to urge EPA to ban the sale or distribution
of all nonessential Class I and Class II substances as soon
as possible.
2. Scope of Regulation
Several commenters expressed the opinion that the scope of
the proposed rule was too great. In several sections of the
regulations, EPA used the language "including but not limited
to" in describing the products subject to the nonessential products
ban. See sections 82.66 (a), (b), (c), and (d). Several commenters
indicated that this language was not sufficiently specific to
describe the products subject to the ban, especially in light
of detailed descriptions of certain subcategories that followed
such language in those sections. These commenters suggested
that the phrase be deleted and that only specifically listed
product subtypes be subject to the ban.
EPA believes that it is appropriate to use the phrase "including
but not limited to" in describing the products subject to the
ban. Section 610 clearly gives EPA the authority to ban all
products within a certain category, such as cleaning fluids
for electronic and photographic equipment. EPA could have simply
listed the overall product categories in the rule. It is true
that the rules must clearly identify those products subject
to the ban, and that the descriptions cannot be overly vague.
However, EPA does not believe that there is anything vague about
the descriptions used in the rule. EPA believes that they are
all terms with clear meaning in the industries affected and
that any manufacturers or distributors will know if they are
handling a product that falls within the ban.
The fact that EPA specifically listed certain subcategories
of the larger product categories subject to the ban does not
in any way render the overall product category descriptions
vague or unclear. EPA concluded that it would be helpful to
manufacturers and distributors to specifically list as many
product subcategories as the Agency could identify in the rule
to aid the public in identifying products subject to the ban.
EPA attempted to be comprehensive in this listing, but could
not be sure that it had identified all product subtypes within
the overall product categories. The "including but not limited
to" language is included in the final rule to clarify that all
products within the stated product categories are subject to
the ban on sale of nonessential products.
Several commenters stated that the Agency does not have the
authority under the Act to ban the use of CFCs in aerosols.
However, it is clear from the language of section 610 that EPA
is authorized to examine all products which result in the release
of Class I substances into the atmosphere for the purpose of
determining whether they are nonessential. Under section 610(b)(3),
the Administrator has the authority to restrict the use of Class
I substances in products that Congress did not specifically
cite. Congress provided the Agency with criteria to determine
whether a Class I product should be banned (discussed at length
in section III.A.5.), and EPA has acted within these parameters
in considering products for their eligibility for the nonessential
products ban. The fact that CFC use in aerosols is regulated
by the 1978 ban does not affect EPA's authority to regulate
any aerosol uses exempted or excluded from that ban under section
610.
One commenter felt that the broadening of section 610 was
not justified in light of the President's plan to accelerate
the phaseout of ozone-depleting chemicals. The commenter observed
that the accelerated phaseout would eliminate the production
of CFCs by the end of 1995, only a short time after the
nonessential
products ban takes effect. The commenter questioned whether
the environmental benefits of the ban during the period would
justify the burden associated with expanding its scope. As stated
in section I.G. of this preamble, EPA agrees with the commenter
for the most part. Consequently, EPA has limited the scope of
today's rule to the product categories affected by the Class
II ban and those CFC-containing products specifically listed
in the statute. While EPA believes that accelerated phaseout
dates will do much to protect the stratospheric ozone layer,
the Agency is still required to promulgate regulations to ban
those uses of ozone-depleting chemicals it determines are
nonessential.
EPA believes that there is still a compelling argument for banning
the use of CFCs in aerosol products and plastic flexible and
packaging foams (see section I.G. of today's preamble). The
primary reason for prohibiting the use of CFCs in these sectors
is to force them to move to alternatives other than CFCs and
HCFCs prior to January 1, 1994, when the Class II nonessential
products ban takes effect.
One commenter suggested that the scope of the proposed rule
was too narrow, and that other use sectors, such as solvents
and methyl chloroform, should be included. This commenter cited
examples in which manufacturers had phased out the Class I
substances
in various use sectors to justify expanding the scope of the
rule. EPA is aware that substitutes exist for certain solvent
applications of CFCs and particular uses of methyl chloroform.
However, EPA could not properly evaluate the tremendous number
of products manufactured with methyl chloroform within the short
statutory time-frame of this rulemaking. The Agency also felt
that it could not address CFC solvent uses adequately in this
section 610 rulemaking, since they also find use in large numbers
of applications. The Agency believes that the Class I substances
and use sectors not addressed in this rulemaking can be addressed
more effectively under sections 608 or 612. Finally, given the
number of applications to be considered, and given EPA's preferred
approach of addressing products and applications by use category
rather than individually, the Agency feels it would be impractical
and inconsistent to ban products based exclusively on the example
of individual users.
One commenter was concerned that there may be some confusion
over the use of nonessential products and the sales prohibition.
The commenter suggested that EPA confirm that nonessential products
purchased before the effective date may still be used, and that
the Agency is not regulating the use of nonessential products,
merely their sale and distribution. The Agency agrees with the
commenter that section 610 of the Act does not address the use
of products which are determined to be nonessential. The use
of nonessential products purchased prior to the effective dates
for the nonessential products ban is not subject to any restriction
in this regulation, although other laws and regulations regarding
the release of ozone-depleting substances may apply to such
use.
3. President's Moratorium on Regulation
Two commenters questioned whether the nonessential products
rule would be subject to President Bush's rulemaking moratorium.
The President's directive does not allow for certain categories
of regulations to be promulgated without delay. Specifically,
government agencies have been directed not to postpone any
regulation
that is subject to a statutory or judicial deadline which falls
during the period of the moratorium. Since section 610 contains
a statutory deadline for the publication of the final rule,
as well as an effective date of November 15, 1992, the nonessential
rule is exempt from the regulatory moratorium.
4. Section 608 and EPA Authority
One commenter objected to the citation of the Lowest Achievable
Emission Level (LAEL) standards in section 608 as a basis for
restricting the emissions of ozone depleting substances. According
to the commenter, Congress clearly intended to confine product
restrictions to section 610. In particular, the commenter suggested
that the LAEL standards were exclusively intended to cover
emissions
from the appliance and industrial process refrigeration market.
The commenter cited the legislative history behind the creation
of section 608 to support its interpretation of section 608.
The EPA disagrees with the commenter's suggestion that reliance
on section 608 as additional authority for its actions is
unwarranted.
EPA considers section 608 to be a multiple phase emission control
program. The Agency believes that the authority granted under
section 608 (National Emission Reduction Program) may be applied
to today's rulemaking, and that LAEL standards may, in certain
circumstances, have the same practical effect as the nonessential
products ban authorized in section 610.
It is clear from the statute that section 608(a)(1) of the
National Recycling and Emission Reduction Program initially
affects only appliances and industrial process refrigeration,
and the Agency is addressing the recycling of refrigerant in
the appliance and industrial process refrigeration sector in
the section 608 proposal published in the Federal Register on
December 10, 1992 (57 FR 58644). EPA believes, however, that
the commenter is incorrect in suggesting that the section 608
LAEL standards apply only to appliances and industrial process
refrigeration. Section 608(a)(2) requires EPA to promulgate
regulations establishing standards and requirements regarding
use and disposal of Class I and II substances not covered by
paragraph (1) and section 608(a)(3) requires the reduction of
the use and emission of such substances to the lowest achievable
level. EPA believes that this statutory language gives the Agency
the authority to apply the LAEL standards to all sectors using
Class I and Class II substances.
Where adequate substitutes for Class I or Class II substances
are available, EPA may make a determination that the lowest
achievable level is zero. To implement the LAEL standards, the
Agency may issue regulations requiring emission controls, work
practices, the use of alternative substances, or simply setting
a performance standard. A zero level performance standard under
section 608 would amount to an effective ban on the use of Class
I or Class II substances in that product category. EPA similarly
believes that it has authority under section 608 to require
the use of alternatives to certain ozone-depleting substances
in specific uses. Consequently, the Agency believes that the
requirements of sections 608 and 610 may overlap in some instances,
and that reference to the section 608 LAEL standards in this
rulemaking is appropriate.
5. Criteria for Determining Nonessentiality
Several commenters felt that Congress only banned frivolous
products or products which "when used by nonprofessionals would
result in large unwarranted releases of CFCs when measured against
the expected beneficial results of the product's use," and that
EPA in the proposed rule had overstepped its authority by
attempting
to ban products that are considered extremely important. EPA
believes that the specific products selected by Congress reflect
broader criteria for determining a product's status under section
610 than utility alone. Congress specifically cited noise horns
as products in which the use of Class I substances is nonessential.
Noise horns are primarily used in the area of marine safety;
noise horns provide warning and maneuvering signals in case
of an emergency. In addition, the noncommercial use of cleaning
fluids for photographic and electronic equipment is generally
not reviewed as a frivolous end use. Nevertheless, these products
were specifically cited in the statute as examples of nonessential
uses. Finally, Congress also prohibited the sale or distribution
of aerosols and certain foam products containing Class II
substances
after January 1, 1994 in the nonessential products ban. The
products banned in section 610(d) are clearly not all frivolous,
and yet Congress banned them as nonessential products. These
examples indicate that Congress relied on broader criteria than
the utility of the product alone in determining a product's
status under section 610, and section 610(b) specifically
identified
criteria other than the utility of the product for EPA to consider
in determining nonessentiality for the purposes of the Class
I nonessential products ban. Consequently, EPA disagrees with
the commenter's contention.
One commenter who questioned the application of the ban to
any product other than frivolous products cited the legal doctrine
of ejusdem generis. Under this doctrine of statutory
interpretation,
where general words follow specific words in a statutory
enumeration,
the general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific
words. The commenter concluded that under this doctrine EPA's
authority to ban other products is limited to frivolous products
because the specifically enumerated products identified in sections
610(b) (1) and (2) are all frivolous products.
EPA believes that the doctrine of ejusdem generis is
inapplicable
here because the premise underlying the commenter's conclusion
is false. The products specifically listed in sections 610(b)
(1) and (2) are not all frivolous products. Only the first product
listed in 610(b)(1), plastic party streamers, can be considered
frivolous. For the reasons given above, EPA believes that the
other product categories listed in 610(b) (1) and (2) clearly
include products which are not frivolous. As a result, EPA believes
that the specific enumerations in 610(1) and (2) do not limit
the Agency's authority to identify nonessential products under
610(b)(3) that are frivolous. Rather, EPA is required by 610(b)
to consider a number of factors in determining whether a product
is nonessential, including the purpose or intended use of a
product, the technological availability of substitutes, safety,
health, and other relevant factors.
One commenter suggested that even if substitutes for Class
I substances were available, EPA had no authority to ban the
sale or distribution of "extremely important" products under
section 610 unless substitutes were available for both the product
and the Class I substance used in its manufacture. As discussed
above and in the proposed rule, EPA believes that the section
610 statutory ban on noise horns, CFC-containing cleaning fluids
for noncommercial electronic and photographic equipment, as
well as aerosols, pressurized dispensers, and plastic foam products
containing Class II substances, clearly indicates congressional
intent to include important "nonfrivolous" uses of ozone-depleting
substances and products produced with ozone-depleting substances
in the nonessential products ban. Moreover, the statute directed
EPA to consider the "technological availability of substitutes
for such product and for such Class I substance," as well as
the purpose or intended use of the product, in determining whether
a product was nonessential. However, the statute does not
specifically
require EPA to determine that substitutes are available for
both the product and the Class I substance used in its production.
Consequently, EPA believes that the statute authorizes the Agency
to ban a product containing or manufactured with Class I substances
if, when EPA evaluates such a product against the five criteria
mentioned in section 610(b)(3), it determines that adequate
substitutes are available for either the product or the use
of Class I substances in its manufacture. EPA believes that
in cases where such substitutes exist, the Administrator has
the authority to determine that products manufactured with Class
I substances are nonessential, regardless of the importance
of these products. In each case, however, EPA must consider
all five of the criteria in making its determination.
6. Definition of the Term "Product"
The January 16, 1992 proposed rule discussed EPA's definition
of the term "product" at great length. EPA reiterates its belief
that the use of the term "product" in section 610 of the statute
indicates that Congress intended to apply this term to any type
or category of merchandise or commodity offered for sale, as
well as any use of a Class I substance in the manufacture or
packaging of any such merchandise or commodity.
A number of commenters disputed EPA's definition of the term
"product". Several commenters criticized EPA for banning entire
categories of products rather than individual products. EPA
believes that such an approach is appropriate, and that it is
justified by the criteria listed in section 610(b), the statutory
treatment of certain groups of products manufactured with or
containing Class II substances in section 610(d), and by the
tight statutory deadline for promulgation of this regulation.
In determining whether a product is nonessential, section
610(b) of the statute directs the Administrator to "consider
the purpose or intended use of the product, the technological
availability of substitutes for such product and for such Class
I substance, safety, health, and other relevant factors". EPA
reiterates its belief articulated in the proposed rule that
the statutory mandate to consider the technological availability
of substitutes "for such product and for such Class I substance"
clearly indicates Congressional intent to focus on the use of
Class I substances in broad categories of products as well as
in individual products (see NPRM for greater discussion of this
issue).
In addition, Congress banned entire categories of products
in section 610(d)(2) when it banned aerosols, pressurized
dispensers,
and plastic foam products containing Class II substances. EPA
believes that the statutory language of section 610(d)(2) indicates
Congressional intent to address products and the use of ozone-
depleting substances by broad use categories, provided that
some mechanism exists for addressing particular applications
within those categories for which no suitable substitutes exist,
or for which other important concerns might justify an exemption.
EPA employed such a mechanism in its section 610 rulemaking
for the Class I nonessential products ban. In its NPRM, EPA
proposed banning the use of CFCs in two product categories,
aerosol products and flexible and packaging foams, but it also
exempted products for which it had reason to believe that no
satisfactory substitutes were currently available. EPA then
carefully considered requests for exemptions received during
the public comment period in order to address additional products
within these sectors for which no suitable substitutes exist,
or for which other concerns might justify an exemption. As a
result of this procedure, the final rule includes exemptions
from the nonessential ban for several additional products (see
sections III.B and IV.E. of today's preamble).
Finally, there are hundreds of thousands of diverse end uses
for Class I substances, and EPA clearly could not address the
multitude of products and end uses for these substances
individually
given the tight statutory time-frame for promulgating this
regulation.
Consequently, EPA adopted the approach taken by Congress in
section 610(d)(2) and proposed banning broad categories of products
and end uses in the NPRM. EPA then considered any comments
requesting
exemptions for particular applications within these broad
categories
and carefully evaluated the information provided by the commenters
as to why these particular applications should not be covered
by the Class I nonessential products ban. EPA believes that
this approach is equitable, comprehensive, and that it represents
the most effective use of the Agency's resources.
7. Definition of Interstate Commerce and Grandfathering of Existing
Product Inventories
Many commenters addressed the impact of the ban on existing
inventories. The primary concern of all these commenters was
the treatment of existing inventories of nonessential products
after the effective date of the regulation. One commenter, one
of the largest producers of CFCs, stated that the November 15th
compliance date could affect a large number of products containing
up to 50,000 pounds of CFCs.
The commenters expressed concern that banning the sale of
these existing inventories would impose significant economic
burdens on the affected businesses. Moreover, several commenters
observed that recovery and recycling of CFCs from small aerosol
containers is difficult and expensive, and that much of the
ozone depleting chemical used to produce flexible and packaging
foams is released in the foam-blowing process. Consequently,
the recall of such products would result in little environmental
benefit.
Commenters suggested changing the treatment of existing
inventories
in the final rule. One commenter, a major manufacturing
association,
felt that the November 15th compliance date should not apply
to the sale of products to the ultimate consumer. Many other
commenters proposed grandfathering existing inventories of products
that had not been sold by November 15, 1992.
EPA agrees with these commenters that banning the sale of
existing inventories after November 15, 1992, would adversely
affect a number of businesses without providing any appreciable
environmental benefit. The Agency is well aware that redesigning
and modifying production facilities cannot be accomplished
overnight.
EPA is also aware that some of the affected products, such as
spare parts for automobiles, which are packaged with foam, have
unusually long shelf lives. Moreover, EPA recognizes that the
statute contemplated that businesses would have one year to
liquidate existing stocks of nonessential products, and that
the late publication of the final rule allows manufacturers,
distributors, and retailers insufficient time to liquidate existing
inventories and revise manufacturing processes. Congress clearly
intended to give these individuals a year's notice prior to
banning these products. Given the late publication date of the
rule, adhering to the November 15, 1992 date for all nonessential
products would actually contradict Congressional intent in this
regard. However, as of November 15, 1992, the statute clearly
prohibits the sale, distribution, or offer of sale or distribution,
in interstate commerce of nonessential products identified in
EPA regulations (after the effective date of such regulations)
one year after promulgation of the Class I nonessential products
ban rule.
The affected industries could not have known for certain
whether such products would be banned until final promulgation.
Consequently, to provide some measure of relief for certain
industries, with respect to any such products which Congress
anticipated would be banned, EPA has decided to make January
17, 1994 the effective date for the ban on products determined
to be nonessential under section 610(b)(3). This action will
allow manufacturers, distributors, and retail establishments
additional time to liquidate existing inventories of Class I
nonessential products, and to phase out of CFC use in these
applications in an efficient manner.
EPA believes, however, that the manufacturers, distributors,
and retailers of products specifically mentioned in sections
610(b)(1) and 610(b)(2) of the Act have received sufficient
prior notice of this action, having been on notice that such
products would be banned since enactment of the statute.
Consequently,
chlorofluorocarbon-propelled plastic party streamers and noise
horns may not be sold, distributed, or offered for sale or
distribution
in interstate commerce as of February 16, 1993, the effective
date of this rule. Similarly, cleaning fluids for electronic
and photographic equipment which contain chlorofluorocarbons
may only be sold, distributed, or offered for sale or distribution,
in interstate commerce to commercial purchasers effective on
February 16, 1993.
EPA believes that sufficient precedent exists for this decision.
The United States District Court for the District of Columbia
Circuit has established a four-part test to judge the
appropriateness
of Agency grandfathering (see Sierra Club v. EPA, 719 F.2d 436
(D.C. Cir. 1983)). This test involves balancing the results
of four analyses, including whether the new rule represents
an abrupt departure from previously established practice, the
extent to which a party relied on the previous rule, the degree
of burden that application of the new rule would impose on the
party, and the statutory interest in applying the new rule
immediately.
For the reasons stated above, EPA believes that banning the
sale, distribution, or offer of sale or distribution in interstate
commerce of existing inventories of products first designated
as nonessential products in this rulemaking after November 15,
1992 would constitute an abrupt departure from previously
established
practice and would impose an unreasonable burden on a number
of affected parties without providing any significant environmental
benefits that might justify an immediate ban. Prior to the
publication
of today's rulemaking, individuals selling or distributing these
products faced no restrictions on their sale or distribution;
moreover, until today, these individuals could not know for
certain that the products affected under the discretionary
authority
of section 610(b)(3) of the Act would be identified and banned
as nonessential products.
Today's rulemaking does not provide manufacturers, distributors,
or retailers of products specifically mentioned in section
610(b)(1)
addition time to phase out these nonessential products; however,
because EPA believes that their listing in the statute provided
sufficient advance notice, publication of the final rule does
not in their case constitute an abrupt departure from previously
established practice.
In addition, today's rule maintains the proposed rule's ban
on the sale of chlorofluorocarbon-containing cleaning fluids
for electronic and photographic equipment to noncommercial
purchasers
effective on February 16, 1993. Since existing inventories of
CFC-containing cleaning fluid products not otherwise affected
by this rulemaking may still be sold to commercial purchasers,
on February 16, 1993 effective date will not impose any significant
economic burden on the affected businesses. Manufacturers,
distributors
and retailers of aerosol chlorofluorocarbon-containing cleaning
fluids banned under section 610(b)(3) will not be able to sell,
distribute, or offer to sell or distribute, these products in
interstate commerce to any user, commercial or noncommercial,
after January 17, 1994, the effective date of the ban on products
identified under section 610(b)(3). As described above, as with
the other nonessential products banned under section 610(b)(3),
the affected businesses will thus have an additional year to
liquidate their existing inventories of these products after
promulgation of these regulations.
One commenter requested that EPA clarify its interpretation
of interstate commerce with regard to sale, distribution, or
offer of sale or distribution, of nonessential products within
the boundaries of a single state. EPA agrees with the commenter
that the Act does not ban the sale, distribution, or offer of
sale or distribution, of a product otherwise affected by this
rulemaking that is manufactured, distributed, and sold without
ever crossing state lines. However, the Agency wishes to clearly
state its position that to avoid coverage by this rulemaking,
an affected party must provide adequate documentation that not
only was the product manufactured, distributed, and/or sold
exclusively within a particular state, but that all of the
components,
equipment, and labor that went into manufacturing, distributing,
selling, and/or offering to sell or distribute such a product
originated within that state as well.
Finally, EPA wishes to clarify its interpretation of sale,
distribution, or offer of sale or distribution, in interstate
commerce with regard to the resale of used products. The Agency
recognizes that more than one consumer often derives utility
from owning and using certain durable goods affected by this
rulemaking, such as automobiles, boats, or furniture. Many of
these products contain components manufactured out of flexible
and packaging foam, most notably seat cushions. Restricting
the resale of such used durable goods before the end of their
productive lifetimes would provide little, if any, environmental
benefit because the CFCs used to blow foam for these products
were, for the most part, released during their manufacture.
Because restricting the resale of such used durable goods would
impose significant economic hardship on a great many consumers
without providing any associated environmental benefits, EPA
does not feel that Congress intended to ban their resale.
Consequently,
while EPA's interpretation of "interstate commerce" is such
that interstate commerce includes the entire chain of sale and
distribution from the manufacturer of a new product to its ultimate
consumer, the Agency recognizes that in the case of durable
consumer goods such as boats, cars, and furniture, resale of
the product to additional consumers may occur after the sale
of the new product to the ultimate consumer. In such cases,
EPA does not consider the resale of these nonessential products
to constitute sale, distribution, or offer of sale or distribution,
in interstate commerce for the purposes of this rulemaking.
8. Verification, Recordkeeping and Public Notice Requirements
Over 60 commenters considered the recordkeeping provisions
contained in the proposed rule to be burdensome and unnecessary.
The Agency considered the need for recordkeeping requirements
at great length as a result of these comments. EPA was concerned
by the suggestion that the burden imposed by these requirements
far outweighed any health and environmental benefits associated
with them.
The total volume of CFCs used in the U.S. in 1988 for both
commercial and noncommercial cleaning fluids for electronic
and photographic equipment was approximately 3000 metric tons,
or less than 0.8 percent of the total use of Class I substances
(weighted for ozone-depletion potential). EPA estimates that
noncommercial sales represented a small but not insignificant
fraction of this total 1988 use estimate and that total sales
have dropped since 1988, due to the tax and the scarcity of
CFCs caused by the phaseout regulations. EPA believes that the
excise tax on CFCs and the limits on production and imports
have already raised the price of CFCs sufficiently so that it
may no longer be economical to use them as cleaning fluids for
noncommercial equipment. As a result, the current sales of cleaning
fluids for electronic and photographic equipment to noncommercial
users are likely to be substantially lower than the 1988 level.
Nevertheless, the statute specifically requires EPA to ban the
sale of these products for noncommercial use. Consequently,
the Agency sought to devise a means to meet the statutory
requirements
without imposing an undue burden on the public.
EPA has decided to eliminate the specific recordkeeping
requirements
proposed in the NPRM. The Agency agrees with the commenters
that these requirements are too burdensome when compared to
the associated environmental benefits. Instead of requiring
distributors to maintain records of transactions involving CFC-
containing cleaning fluids, today's final rule merely requires
sellers and distributors to post signs stating that sale,
distribution,
or offer of sale or distribution, in interstate commerce of
these products to noncommercial users is prohibited and that
purchasers of these products must provide verification that
they are commercial users. In addition, sellers and distributors
are required to verify that purchasers of these products are
commercial users. In order to purchase these products, commercial
users would have to prove that they are indeed commercial entities.
EPA anticipates that purchasers could fulfill this requirement
by presenting any number of documents, including but not limited
to invoices, purchase orders, or official correspondence,
containing
a commercial identification number. Sellers and distributors
would have to have a reasonable basis for believing that the
information presented by the purchaser is accurate and thus
that the purchaser is in fact a commercial user.
EPA believes that this approach minimizes the burden of
implementing
the Congressionally-mandated ban on the sale of CFC-containing
cleaning fluids for noncommercial electronic and photographic
equipment. The Agency feels that some form of verification is
necessary to ensure that these products are not sold to
noncommercial
users. Requiring purchasers to present, and sellers and
distributors
to verify, some proof of their commercial status is certainly
less burdensome than the recordkeeping requirements discussed
in the proposed rule. EPA could not conceive of requirements
less burdensome than these that would nonetheless meet the
statutory
requirement to prevent noncommercial users from purchasing CFC-
containing cleaning fluids.
One commenter recommended that EPA include government contract
numbers as an acceptable identification option in the sale of
cleaning fluids for electronic and photographic uses to government
clients who would not have a commercial identification number.
The Agency believes the use of a government contract number
in verification of commercial status to be a sound option which
would not compromise the sales restriction to noncommercial
sources.
One commenter suggested that the definition of distributor
should be revised to reflect resale of CFC-containing cleaning
fluids to other distributors rather than sale to the ultimate
consumer. EPA believes that the commenter has raised a valid
point. A number of companies that sell these products to consumers
also use the products themselves (for example, many computer
retailers also perform service on customers' computer equipment
which requires the use of cleaning fluids). Given the nature
of this industry, it may be difficult for any person who sells
or distributes these products to determine whether the purchaser
intends to use them or resell them; the purchaser himself may
not be certain at the time of purchase whether he intends to
use or resell these products. Consequently, EPA has revised
the definition of distributor to include resale of CFC-containing
cleaning fluids to other distributors. The Agency would like
to point out, however, that due to its decision to eliminate
recordkeeping requirements, this change will not require any
additional recordkeeping. The Agency believes that the burden
involved in verifying that a distributor who purchases these
products is a commercial entity will be minimal.
9. Imports and Exports
Two commenters requested clarification on whether the import
of products made with CFCs would be prohibited under the ban.
EPA believes that both the import of any product for sale or
distribution within the United States, or the initial sale or
distribution of any product intended for ultimate export from
the point of manufacture to the point of export, are acts of
interstate commerce for the purposes of section 610 and would,
accordingly, be affected by this regulation. The import or export
of products affected by today's rulemaking will be subject to
the same restrictions as the sale, distribution, or offer of
sale or distribution, in the United States (for a discussion
of EPA's interpretation of "interstate commerce," see section
III.A.7. of today's preamble). EPA will work in close cooperation
with the U.S. Customs Service to enforce this restriction. Because
today's rulemaking prohibits the sale, distribution, or offer
of sale or distribution, in interstate commerce of products
banned pursuant to section 610(b)(3) effective on January 17,
1994, these products may continue to be imported, or sold or
distributed for export, until January 17, 1994.
10. Future Regulation
Several commenters criticized EPA for limiting the scope
of today's rulemaking primarily to plastic flexible and packaging
foams and aerosols and pressurized dispensers that release CFCs.
In addition, several commenters discussed a number of products
not covered by the proposed rule. Several of these products
or processes, such as tobacco expansion, aerosol insulating
foam, and the use of closed-cell polyurethane foam as a flotation
foam, may meet the criteria for nonessentiality; nevertheless,
as discussed elsewhere in today's rulemaking, EPA believes that
it would be inappropriate to ban them in today's final rule
because the Agency did not propose banning these products in
the NPRM.
The status of methyl chloroform under the nonessential products
regulation was raised by four commenters, and at the public
hearing, one commenter criticized EPA for not covering methyl
chloroform in the Class I nonessential rule. This commenter
cited a major corporation's policy of phasing out the use of
methyl chloroform by the end of 1992 to support the inclusion
of methyl chloroform in the Class I nonessential products ban.
The Agency encourages and applauds companies that have phased
out the use of ozone depleting chemicals as quickly as possible,
and it reiterates its belief that substitutes are available
for many of the current uses of methyl chloroform. Methyl
chloroform
is a chemical with many extremely diverse end uses, however,
and insufficient time was available for the Agency to analyze
the uses of methyl chloroform systematically given the short
statutory time-frame mandated for this rulemaking. The Agency
will continue to collect information on the uses of methyl
chloroform.
The Agency is aware that the potential exists for eliminating
other nonessential uses of ozone-depleting substances. In that
regard, EPA wishes to emphasize that, in general, other sections
of the Act provide sufficient controls for reducing emissions
of ozone-depleting substances. The use sectors and product
categories
addressed by the commenters have already been affected by the
section 604 phaseout of the production of ozone-depleting
substances
and the excise tax on ozone-depleting substances. In addition,
it is possible that they may also be specifically addressed
in a number of other provisions of title VI. For example, the
Agency is currently developing regulations to implement section
608, concerning emission limitations, and section 612, concerning
safe substitutes, as well as the accelerated phaseout required
by the recent modifications to the Montreal Protocol. The products
and use sectors discussed in the Class I nonessential products
ban will be affected by these regulations as well.
EPA will continue to collect information on the use of CFCs
and acceptable substitutes. EPA has the authority to revise
the list of products banned under sections 610(a) and 610(b),
and, although the Agency does not at this time anticipate the
need to add other products to the list of banned Class I products,
it reserves the right to undertake additional rulemaking in
the future regarding products that release Class I substances
into the environment as necessary and appropriate.
11. Regulatory Impact Analysis
One commenter suggested that banning the use of CFCs in plasma
etching would increase the costs associated with this regulation
to over $100 million. Executive Order 12291 requires agencies
to conduct a Regulatory Impact Analysis for regulations with
economic impacts which exceed this level. Consequently, the
commenter requested that EPA conduct a regulatory impact analysis
(RIA) for the Class I nonessential products rulemaking if the
use of CFCs in plasma etching was banned. EPA believes that
the commenter is correct in observing that prohibiting the use
of Class I substances in plasma etching would significantly
increase the economic costs associated with the Class I
nonessential
products ban. However, as discussed elsewhere in today's
rulemaking,
EPA does not intend to ban the use of Class I substances in
plasma etching. Consequently, the Agency believes that the cost
and benefits chapter of the background document adequately
addresses
the regulatory impact of section 610, since it is considered
to be only a minor rulemaking (see Background Document). EPA
believes that preparing an RIA is not required by the Executive
Order for the Class I nonessential products ban rulemaking,
and that consequently, preparing such a document would be redundant
and inappropriate.
B. Specific End Uses
1. Statutorily Mandated Products
Section 610 listed three specific products to which the Class
I nonessential products ban applies: Chlorofluorocarbon-propelled
plastic party streamers, chlorofluorocarbon-propelled noise
horns, and chlorofluorocarbon-containing cleaning fluids for
noncommercial electronic and photographic equipment.
The statute left EPA little discretion with regard to the
treatment of these products under the nonessential products
ban, and no significant comments were received regarding them,
with the exception of comments on the treatment of existing
inventories. As mentioned in section II.A.6. of today's preamble,
the final rule bans the sale, distribution, or offer of sale
or distribution, in interstate commerce of these products effective
on February 16, 1993.
2. Foams
a. Distinciton between insulation foams and flexible and
packaging foams. One commenter suggested that the distinction
between thermal insulation foams (which are excluded from the
Class I nonessential products ban) and flexible and packaging
foams (which are covered by the Class I ban) should not be
reapplied
for the Class II ban. According to the commenter, the legislative
history indicates that the definition of insulation foams to
be exempted from the Class II ban should be expanded beyond
thermal insulation and include foam cushioning for other uses
such as medical and electronic supplies. However, the commenter
did not question EPA's decision to exempt thermal insulation
foams produced with CFCs from the Class I nonessential products
ban. EPA will consider the commenter's recommendations on the
definition of "foam insulation product" in preparing the proposed
rule for the Class II ban.
b. Flexible polyurethane slabstock foam. In the January 16,
1992 NPRM, EPA proposed to ban the use of CFCs in flexible
polyurethane
slabstock foam. The Agency also requested comment on the potential
impacts of individual states' limits on the use of methylene
chloride (MeCl) as a blowing agent in flexible polyurethane
slabstock foams. EPA received two comments arguing that state
and regional restrictions on the use of MeCl are unlikely to
impose significant economic burdens on flexible foam manufacturers
because acceptable alternative technologies are currently
available.
The Agency also received a third comment arguing that a ban
on the use of CFC-11 in flexible polyurethane slabstock foam
production, in conjunction with the impending 1994 Class II
nonessential products ban on the use of HCFCs in the production
of certain foams and the possible future restriction on methyl
chloroform use as well, would cause production of super-soft
and low-density foams to cease in those states that limit the
use of MeCl. The commenter also urged EPA to allow limited
exceptions
to the ban until January 1, 1994 for those companies likely
to be adversely affected by it. EPA carefully considered these
comments in developing the provisions of the final rule that
affected the production of flexible polyurethane slabstock foam.
In making its determination, EPA examined the purpose and
intended use of flexible polyurethane slabstock foam. Flexible
polyurethane slabstock foam finds use in cushioning applications
for furniture, carpet underlay, bedding, automobile upholstery,
and packaging, among others. EPA does not consider the purposes
for which flexible slabstock is employed to be "frivolous."
EPA determined, however, that adequate substitutes for CFCs
in the production of flexible polyurethane slabstock foam were
indeed available. According to the 1991 UNEP Flexible and Rigid
Foams Technical Options Report, CFC-11 use represents only a
small fraction of total auxiliary blowing agent use in flexible
slabstock foams. Because the vast majority of flexible slabstock
producers have converted from CFC-11 to alternative blowing
agents and processes, EPA believes that substitutes for CFCs
are readily available in this area and that the use of CFCs
in flexible polyurethane foam is therefore nonessential. At
present, there are a number of alternatives to the use of CFCs
in flexible polyurethane slabstock foam. MeCl represents the
most widely used and widely available alternative. In areas
that restrict the use of MeCl, manufacturers have turned to
alternative blowing agents such as acetone, HCFCs, and methyl
chloroform. Other near-term alternatives are also available.
For example, modifications in polyol technology and the use
of softening additives can reduce or even eliminate the need
for certain auxiliary blowing agents. "AB" technology, which
uses formic acid to double the quantity of gas produced during
the isocyanate reaction, may offer a viable alternative to CFCs
in those areas where other substitutes are infeasible. Finally,
an increase in the density of foam produced can dramatically
reduce the need for auxiliary blowing agents.
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
flexible polyurethane slabstock foam; however, EPA believes
that with the proper precautions these alternatives can be used
safely. EPA has classified MeCl as a probable human carcinogen
with an Occupational Safety and Health Administration Permissible
Exposure Limit (OSHA PEL) of 25 parts per million. Flexible
foam manufacturers that use MeCl must follow appropriate worker
health and safety practices. Acetone is extremely flammable,
and manufacturers must ensure that ventilation is adequate,
and they may need to take other safety precautions as well.
Moreover, acetone is a volatile organic compound (VOC) that
can contribute to the formation of ground-level ozone (smog).
States have the primary responsibility for enforcing the National
Ambient Air Quality Standards (NAAQS) that relate to ground-
level ozone, and the use of acetone could be subject to
restrictions
in those regions classified as ozone nonattainment areas. HCFCs
and methyl chloroform, although they have much lower potential
to deplete stratospheric ozone than CFCs, have measurable ozone-
depletion potentials; consequently, other sections of title
VI place restrictions on HCFCs and methyl chloroform. Finally,
the formic acid used in the "AB" process has a low Ph and requires
special handling. In addition, the carbon monoxide produced
by the reaction between the isocyanate and the formic acid can
prove harmful without proper ventilation. While each of these
alternatives presents some degree of risk to human health and
the environment, EPA believes that with the proper precautions,
each can be considered a possible substitute for CFC-11 in the
production of super-soft and low-density flexible polyurethane
slabstock foam. Consequently, the Agency believes that substitutes
are available for this use of CFC-11, and that flexible
polyurethane
slabstock foam produced with CFC-11 is a nonessential product.
In making its determination to classify CFC use in flexible
and packaging foams as nonessential, EPA also considered several
other relevant factors. EPA believes that the excise tax on
CFC-11 will provide a continuing incentive for manufacturers
to convert to less costly alternatives. Moreover, in those areas
where MeCl use is restricted, the wide range of near-term
alternatives
for CFC-11 should provide flexible slabstock manufacturers with
sufficient opportunity to find an acceptable substitute. As
a result, EPA expects the economic impacts associated with a
ban on CFC use in flexible slabstock foams to be minimal.
Based on consideration of the above criteria, EPA believes
that the use of CFCs in flexible polyurethane slabstock foam
is nonessential. Therefore, today's final rule bans the use
of CFCs in flexible polyurethane slabstock foam. In response
to the commenter's request for a limited exemption, EPA seriously
considered allowing companies with foam production facilities
located in NAAQS nonattainment areas for ground-level ozone
in states that prohibit the use of methylene chloride to petition
the EPA for a limited exemption to the ban until January 1,
1994. For EPA to grant such an exemption, petitioners would
have had to satisfactorily document the reasons why these
particular
facilities could not modify their production processes without
undue hardship. However, the effective date in today's rulemaking
for the ban on production of flexible and packaging foams with
CFCs is January 17, 1993. Since the effective date of the ban
on CFC use in flexible slabstock foams roughly coincides with
the date requested in the comment for the termination of the
limited exemption, such an exemption appears unnecessary.
c. Integral skin foam. Two commenters addressed the use of
polyurethane integral skin foam in automobiles. Polyurethane
integral skin foam is used for flexible molded foam steering
wheels and pads. One commenter was concerned that integral skin
foam may be covered by the Class I rulemaking due to the broad
regulatory language under the plastic flexible foam and packaging
foam categories, and requested an exemption for the use of CFC-
11 in the production of integral skin foam until January 1,
1994. The other commenter asserted that it had developed a process
for producing integral skin foam using water as the blowing
agent. EPA wishes to clarify the status of integral skin foam
under the Class I nonessential products rulemaking. The Agency
does not consider integral skin foam to be a plastic flexible
or packaging foam product (see section I.I.3. of today's preamble),
and EPA has not included integral skin foam in the Class I
nonessential
products ban. Consequently, there was no need to consider the
commenter's request for an exemption for the use of CFC-11 in
the production of integral skin foam. However, the phaseout
of the production of CFCs by 1996 required under the newly-modified
Montreal Protocol will force manufacturers to adopt alternatives
to CFCs within a relatively short period of time regardless
of the nonessential products ban. In addition, the Agency must
consider the production of integral skin foam during the rulemaking
for the Class II nonessential products ban. Consequently, EPA
was pleased to learn from the public comments that the automobile
industry expects to completely phase out the use of CFCs, as
well as HCFCs, in the production of integral skin foam by January
1, 1994.
d. Closed cell polyurethane foam used as flotation form.
EPA provided several illustrative examples of "noninsulating
uses" for flexible and packaging foams in its preamble to the
proposed rule, including flotation foam. Since publication of
the proposed rule, EPA has become aware that closed cell
polyurethane
foam, which EPA does not consider a flexible or packaging foam,
is used as a flotation foam in the manufacture of certain boats.
At least one manufacturer uses a CFC-blown foam as both structural
and flotation material in the manufacture of its boats.
Consequently,
in drafting today's rulemaking, EPA considered whether it should
include this application in the Class I nonessential products
ban.
In evaluating this application of closed cell polyurethane
foam, EPA examined the purpose and intended use of flotation
foam. Flotation foam serves as an important safety feature of
many small watercraft. In addition, in at least one product
line, closed cell polyurethane foam serves as a structural element
as well. Consequently, EPA does not believe that the purpose
of closed cell polyurethane flotation foam is "frivolous."
The use of CFCs in this product, which EPA does not consider
a flexible or packaging foam, may not be nonessential at the
present time. One manufacturer of closed cell polyurethane
flotation
foam has indicated its intention to convert from CFCs to HCFCs
in the near future. However, EPA has not verified that all uses
of closed cell polyurethane flotation foam have available non-
CFC alternatives at this time.
Flotation foam serves an important safety function in the
design and operation of boats, and EPA does not want to take
action that would jeopardize the continued manufacture of this
type of foam. However, EPA is concerned about the risks to human
health and the environment posed by continued use of Class I
substances in the manufacture of closed cell polyurethane flotation
foam as well. As a result, the Agency intends to continue examining
the need to prohibit such use.
EPA also considered several other relevant factors. EPA believes
that the excise tax on CFCs will provide a continuing incentive
for manufacturers to move away from the use of CFC-11 where
possible. In addition, the accelerated phaseout will force
manufacturers
to adopt alternatives within a relatively short period of time
regardless of the nonessential products ban.
Finally, EPA believes that it would be inappropriate to include
new product categories in the ban that were not considered by
the proposed rule. EPA believes that the Administrative Procedure
Act and section 307(d) of the Clean Air Act require EPA to propose
rulemaking and take comment before proceeding to final rulemaking.
In preparing the proposed rule, EPA relied heavily upon the
research conducted for the 1991 UNEP Flexible and Rigid Foams
Technical Options Report. EPA participated in the development
of the definitions of product categories utilized in the UNEP
technical options reports, and the Agency routinely employs
these categories in its own reports, internal documents, and
rulemakings. The UNEP report categorizes closed cell polyurethane
foam as an insulating foam rather than a flexible or packaging
foam. EPA, too, categorizes closed cell polyurethane foam as
an insulating foam, not a flexible and packaging foam. Because
EPA was unaware that closed cell polyurethane foam was used
as a flotation foam at the time the NPRM was published, it did
not include the use of closed cell polyurethane foam as a flotation
foam in the proposed Class I nonessential products ban.
Today's rulemaking covers only products proposed in the January
16, 1992 proposed rule. Consequently, closed cell polyurethane
flotation foam is not included in the nonessential products
ban implemented by today's rulemaking. However, EPA research
indicates that the use of CFC-blown closed cell polyurethane
foam as flotation foam may indeed meet the criteria for
nonessentiality.
The Agency is also aware that the self-effectuating 1994 ban
on HCFC use in noninsulating foams could encourage movement
away from HCFCs and back to CFCs. Because the Agency intends
to avoid promoting such environmentally harmful activity, it
will continue to examine the need to prohibit CFC use in closed
cell polyurethane flotation foams. EPA has the authority to
consider designating as nonessential other products which release
ozone-depleting substances in future rulemakings, and the Agency
may consider such action if at a later date EPA determines that
these products satisfy the criteria for nonessentiality.
e. Coaxial cable. EPA did not address the issue of coaxial
cable in the preamble to the proposed rule. At the time that
EPA promulgated the proposed rule, the Agency was unaware that
CFCs are used in the production coaxial cable. Moreover, the
Agency received no formal comments regarding CFC use in coaxial
cable. However, since promulgation of the proposed rule,
manufacturers
of coaxial cable have informed EPA that such use exists.
Coaxial cable is widely used as a transmitter of telephone
and television signals. It consists of two conductors (e.g.,
steel and aluminum) separated by a dielectric (nonconducting)
material. Manufacturers claim that acceptable dielectric material
must generate a specific wave pattern to ensure against problems
such as "signal dropout." As a result, the foam within coaxial
cable must confirm to stringent performance standards.
At least one cable manufacturer currently employs an extruded
polyethylene foam blown with CFC-12 as the dielectric material
in its coaxial cable. The same manufacturer is in the process
of converting to a non-ODP blowing agent to replace its use
of CFC-12; however, it is unclear whether other manufacturers
of coaxial cable could take advantage of this process.
In evaluating this product, EPA examined the purpose and
intended use of coaxial cable. EPA recognizes that the purposes
served by coaxial cable are not "frivolous."
EPA has not been able to determine that adequate substitutes
for CFCs in the production of coaxial cable are available.
Therefore,
the use of CFCs in this area may not be nonessential at the
present time. It appears that the largest manufacturer of coaxial
cable does not use CFCs in the manufacture of its product. In
addition, another manufacturer of coaxial cable has indicated
its intention to convert to a non-ODP blowing agent in the
manufacture
of its product. However, EPA knows very little about these
substitutes
at this time, and the Agency has been unable to confirm that
substitutes for CFCs are currently available for most coaxial
cable manufacturers.
EPA is also concerned about the tradeoff between the risks
to human health and the environment posed by continued use of
Class I substances in the manufacture of coaxial cable and the
risks to human health and the environment posed by the use of
particular substitutes. As a result, EPA intends to continue
collecting information on possible CFC substitutes for this
application.
EPA also considered several other relevant factors. A ban
on CFC use in the manufacture of coaxial cable could prove harmful
to some coaxial cable manufacturers. Moreover, EPA believes
that the excise tax on CFCs will provide a continuing incentive
for coaxial cable manufacturers to move away from the use of
CFC-12 where possible. In addition, the accelerated phaseout
will force manufacturers to adopt alternatives within a relatively
short period of time regardless of the nonessential products
ban.
Consequently, EPA does not intend to ban the use of CFCs
in coaxial cable at this time. However, the Agency will continue
to examine the need to take action in the future to prohibit
the use of CFCs in the manufacture of coaxial cable.
f. Aerosol polyurethane foam. Aerosol polyurethane foam,
also known as one component foam, is used by both the building
industry and by do-it-yourselfers in a variety of applications.
These include draft-proofing around pipes, cable runs, doors
and windows; sealing doors and window frames; and joining together
insulating panels, roofing boards, and pipe insulation.
CFC-12 has traditionally been the blowing agent of choice
for aerosol foams because of its relatively low boiling point.
CFC-12 acts both as a propellant and as a blowing agent yielding
"frothed foam" that does not flow away from the site of its
application. In recent years, there has been widespread conversion
away from CFC-12 and toward alternatives such as HCFC-22 and
hydrocarbons.
EPA did not address aerosol foams directly in the preamble
to the proposed rule. However, the Agency wishes to clarify
that, for the purposes of this rulemaking, aerosol foams will
be treated as foams and not as aerosols. EPA believes that this
approach is consistent with regulations published by the Internal
Revenue Service (52 FR 56303) that treat spray foam as an
insulating
foam product for tax purposes. Despite this determination, EPA
did evaluate this product against the criteria in section
610(b)(3).
EPA does not believe that either the purpose or intended
use of aerosol polyurethane foam is "frivolous." Moreover, because
substitutes for CFCs in aerosol polyurethane foam may not be
available for all applications, EPA did not determine that the
use of CFCs in this product is nonessential at this time.
While many manufacturers have converted from CFCs to
alternatives
such as HCFCs and hydrocarbons, it is not clear that non-CFC
substitutes are adequate for all applications at the present
time. Hydrocarbons may pose flammability risks both at the point
of manufacture and at the point of use. In addition, both
hydrocarbons
and HCFCs lack the thermal insulating capabilities of CFC-12.
Hydrocarbons, because of their flammability, may pose
significant
risks to safety and health when used as propellants and blowing
agents in aerosol foams. However, EPA is also concerned about
the risks to human health and the environment posed by continued
use of Class I substances in aerosol foams. As a result, the
Agency intends to continue examining the need to prohibit such
use.
In evaluating aerosol polyurethane foam, EPA also considered
several other relevant factors. Certain manufacturers may be
unable to convert to non-CFC alternatives at this time due to
considerations of safety, energy efficiency, or technological
viability. As a result, a ban on the use of CFCs in aerosol
foams may be undesirable. Moreover, EPA believes that the excise
tax on CFCs will provide a continuing incentive for manufacturers
to move away from the use of CFC-12 where possible. In addition,
the accelerated phaseout will force manufacturers to adopt
alternatives
within a relatively short period of time regardless of the
nonessential
products ban.
Finally, EPA believes that it would be inappropriate to include
new product categories in the ban that were not considered by
the proposed rule. EPA considers aerosol polyurethane foam to
be an insulating foam, not a flexible and packaging foam.
Consequently,
this product was not included in the proposed Class I nonessential
products ban. Today's rulemaking covers only products proposed
in the January 16, 1992 proposed rule; consequently, aerosol
polyurethane foam is not included in the nonessential products
ban implemented by today's rulemaking. However, preliminary
EPA research indicates that the use of CFCs in aerosol polyurethane
foam may indeed meet the criteria for nonessentiality. EPA has
the authority to consider designating as nonessential other
products that release ozone-depleting substances in future
rulemakings,
and the Agency may consider such action if at a later date EPA
determines that these products satisfy the criteria for
nonessentiality.
3. Aerosols
a. Impact of 1994 Class II nonessential products ban. Several
commenters argued that the proposed rulemaking's inclusion of
aerosol products was unwarranted. They felt that EPA's concern
that some manufacturers would switch from the use of Class II
substances to Class I substances in certain products after January
1, 1994, was unjustified. The commenters stated that market
forces would prevent Class I substances from being used in place
of Class II substances after 1994. In response, the Agency wishes
to emphasize that it is encouraged by steady movement of the
aerosol market into non-ozone depleting compounds. EPA believes
that the use of Class I substances in place of Class II substances
in most aerosol products after January 1, 1994 is unlikely.
However, without a regulatory restriction on the use of CFCs
in aerosols, there are possible scenarios under which the use
of CFCs may be attractive in 1994, when the ban on the use of
HCFCs in aerosols takes effect. Consequently, EPA reiterates
the view expressed in the proposed rule that the Class I ban
on aerosols is necessary to prevent federal policy from actually
encouraging additional destruction of the stratospheric ozone
layer.
One commenter was concerned that by banning the use of CFCs
in aerosol products, EPA was closing the provisions made in
the Act for granting exceptions for the use of Class II substances.
EPA notes that the commenter is correct in observing that today's
rulemaking may impact the Class II ban on aerosol products.
However, this does not render the exceptions in the statute
irrelevant. The Act permits the continued use of Class II compounds
only if the Administrator determines that the aerosol product
or pressurized dispenser is essential as a result of flammability
or worker safety concerns and that the only available substitute
is a legally available Class I substance. While today's rulemaking
does restrict the use of Class I substances in aerosol products,
this is not contrary to Congressional intent. EPA is not banning
all uses of Class I substances in aerosols; consequently, while
today's action reduces the number of possible candidates for
exceptions to the Class II ban on aerosol products, it does
not preclude future action to except uses of Class II substances
in aerosols or pressurized dispensers.
The restrictions on the use of Class I substances in aerosols
and other pressurized dispensers under today's regulations are
rooted in the fact that for many aerosol uses, which were exempted
under the 1978 aerosol ban, substitutes have since been developed.
EPA has shown considerable flexibility in granting exceptions
for Class I compounds where a substitute is unavailable (MDIs
and mold release agents, for example). In addition, the exception
for the use of Class II compounds due to flammability and worker
safety concerns presents another opportunity for the Agency
to grant limited exceptions for the use of Class II substances.
b. Clarification of "aerosols and other pressurized dispensers".
One commenter requested that EPA examine the use of the phrase
"other pressurized dispensers" in the language for the aerosol
restrictions. According to the commenter, "other pressurized
dispensers" could be interpreted as applying to pressurized
containers ("bulk containers") used to distribute materials
for use in other products because these materials generally
are self-pressurized when so contained. The commenter proposed
that EPA exclude any pressurized vessel being used as the
containment
vessel for distribution purposes when the material therein
contained
is self-pressurized. EPA agrees with the commenter that further
clarification of the definition of pressurized containers is
necessary. The use of the phrase "other pressurized dispensers"
was meant to include non-aerosol products such as CFC-12 dusters
and freeze sprays. EPA does not believe that the term "other
pressurized dispensers" applies to pressurized containment vessels
such as small containers of motor vehicle refrigerant or
containment
vessels for recycled, recovered or reclaimed refrigerant. Such
an interpretation would have a devastating and unintended impact
on the air conditioning and refrigeration industry.
As a result of this comment, EPA wishes to clarify that the
phrase "aerosol product or other pressurized dispenser" does
not include containers which are used for the transportation
or storage of Class I substances or mixtures (bulk containers
are described in 40 CFR 82.3(i) and the July 30, 1992 final
rule implementing section 604 and related provisions of sections
603, 607, and 616 of the Act (57 FR 33754)). Such a bulk container
is not part of a use system; rather, as specified in 40 CFR
82.3(i), the "substance or mixture must first be transferred
from a bulk container to another container, vessel, or piece
of equipment in order to realize its intended use." An example
of an ambiguous situation affected by this clarification is
the use of a 12-ounce container of CFC-12 used to recharge a
motor vehicle air-conditioner. The CFC-12, while it is in the
container, is not acting and will not act as a refrigerant.
The CFC must be charged into the motor vehicle air conditioning
system before it can serve as a refrigerant. Once the refrigerant
is charged into the air-conditioner, the container is discarded
and serves no purpose in the operation of the air-conditioner.
Since the container only serves to transport and store the
chemical,
EPA considers it to be a bulk container, and not subject to
the Class I nonessential products ban.
c. Dusters and freeze sprays. One commenter requested an
exemption for the use of CFC-12 in freeze sprays used on electronic
equipment. Another commenter expressed its belief that the Act
specifically prohibited the sale or distribution of Class II
substances such as HCFC-22 in aerosols after January 1, 1994,
but allowed the continued sale or distribution of CFC-12 dusters.
The commenter felt that the use of CFC-12 in aerosol dusters
was an unacceptable loophole. EPA wishes to clarify that while
the Act does not specifically ban the use of Class I substances
in aerosol dusters, it requires EPA to identify and ban
nonessential
products containing Class I substances. Consequently, the final
rule addresses a number of Class I use sectors not specifically
identified in the statute, including aerosols and plastic flexible
and packaging foams.
Dusters and freeze sprays (also referred to as freezants)
typically contain a pressurized fluid, such as CFC-12, which
is released as a gas (duster) or as a liquid (freezant). Dusters
and freeze sprays contain only one ingredient and are used for
both commercial and noncommercial applications. The noncommercial
use of dusters was addressed earlier in the preamble (see section
I.I.1.c.). EPA considers gas sprays containing CFCs to be among
the products described as CFC-containing cleaning fluids for
noncommercial electronic and photographic equipment in section
610(b)(2). Consequently, the sale of gas sprays to noncommercial
purchasers is banned by today's rulemaking, as required by the
statue.
Dusters are primarily used in the electronic and photographic
industries to blow fine dirt materials and dust away from products
which need to be kept dust-free and which cannot be wiped clean.
Freeze sprays can be used for a variety of purposes including
shrink fitting small metal products, testing for faults in
electronic
equipment, some medical applications, and the removal of chewing
gum and other waxy or gummed substances from various surfaces.
Based on information in a recent report to EPA's Office of
Research and Development and information provided by commenters,
EPA evaluated dusters and freeze sprays against the criteria
for nonessentiality and determined that the use of CFCs in these
aerosol products, i.e. as propellant or sole ingredient, does
not warrant an exemption and, therefore, should be banned as
nonessential.
Dusters and freeze sprays serve an important and nonfrivolous
purpose for the electronics industry as well as other users.
EPA has not determined that the purpose and intended use of
these products is nonessential. However, because there are
commercially
available substitutes, EPA believes that the use of CFC-12 in
dusters and freeze sprays is nonessential.
Several substitute formulations for the use of CFC-12 in
dusters and freeze sprays have been identified, including HCFCs,
hydrocarbons, and inert gases (e.g., carbon dioxide and nitrogen
oxide). Non-aerosol alternatives are also available. EPA believes,
therefore, that adequate substitutes are readily available for
CFC-12 as the sole ingredient in dusters and freeze sprays.
EPA is aware that, to ensure the safety of workers in the
electronics industry, alternative formulations for aerosol products
used on electronic or electrical equipment must be nontoxic
and, in most applications, nonflammable. EPA believes, however,
that effective and safe non-CFC propellants are readily available.
In making its determination regarding these products, EPA
also considered the economic impact of banning these products.
EPA acknowledges that any manufacturers still producing CFC
dusters or freeze sprays would suffer some economic impact as
a result of this rule. EPA believes, however, that given a 12-
month period before the ban on these products takes effect,
these manufacturers will have sufficient opportunity to liquidate
existing inventories and reformulate their products with a
substitute
for CFC-12. In any case, manufacturers will have to convert
to a non-CFC substitute soon, given the phaseout of CFC production
by January 1, 1996 under the modified Montreal Protocol.
In conclusion, EPA has determined that the use of Class I
substances such as CFC-12 as the sole ingredients in dusters
or freeze sprays is nonessential and, therefore, dusters and
freeze sprays are included in the ban on nonessential products
promulgated in today's rulemaking. Consequently, the loophole
which concerned the second commenter will not exist.
d. Lubricants, coatings, and cleaning fluids for electrical
or electronic equipment. In the proposed rule, EPA proposed
to ban the use of CFCs in all aerosol products and pressurized
dispensers with a number of exemptions, including the use of
CFC-11 or CFC-113 in lubricants, coatings, and cleaners for
commercial electrical and electronic uses. EPA received one
comment requesting that the exemption for commercial electrical
and electronic uses be expanded to include CFC-12.
Lubricants and coatings typically contain an active ingredient
(the lubricating or coating material), a solvent or diluent,
and a propellant. Cleaning fluids can include solvent sprays
and gas sprays (gas sprays are discussed in the preceding section
on dusters and freeze sprays). The solvent sprays typically
contain a solvent and a propellant and are dispensed as a liquid.
Lubricants, coatings and cleaning fluids can contain CFCs as
either solvents or as propellants. CFC-11 and CFC-113 are the
most common CFCs used as solvents, although a commenter claimed
that CFC-12 is also used as a solvent in certain applications.
CFC-12, however, is most commonly used as a propellant. EPA
believes that the use of CFC-12 as a solvent rather than a
propellant
is very small.
Based on information in a recent report by EPA's Office of
Research and Development and information provided by commenters,
EPA evaluated lubricants, coatings, and cleaning fluids for
electrical and electronic equipment against the criteria for
nonessentiality and determined that: (1) Use of CFCs as solvents
or diluents in these aerosol products should not be banned,
but that (2) use of CFCs as propellants in these aerosol products
does not warrant an exemption and, therefore, should be banned.
Lubricants, coatings and cleaners for electronic and electrical
equipment serve an important and nonfrivolous purpose for the
electronics industry. EPA has not determined that the purpose
and intended use of these products is nonessential.
EPA research indicates that adequate substitutes for the
use of CFCs as solvents or diluents in these applications may
not yet be available. In November 1989, EPA's Office of Research
and Development (ORD) published an evaluation of the need for
continued use of CFCs in both exempted and excluded uses of
CFCs in aerosols (see Alternative Formulations). The ORD report
concluded that adequate substitutes did not yet exist for
lubricants,
coatings and cleaners using CFC-11 or CFC-113 for commercial
electrical and electronic equipment. EPA believes that adequate
substitutes have still not been found for CFCs used as solvents
or diluents in these aerosol products. In addition, according
to a commenter, CFC-12 is occasionally used as a solvent in
these products. EPA believes that the use of CFC-12 as a solvent
is similar to that of CFC-11 and CFC-113 and that substitutes
may not be available for this application either.
However, several substitute formulations for the use of CFC-
12 as a propellant have been identified, including HCFCs,
hydrocarbons,
and inert gases (e.g., carbon dioxide and nitrogen oxide). These
substitute propellants are suitable for use as propellants in
products that contain other ingredients, such as solvent sprays,
lubricants, and coatings. Non-aerosol alternatives are also
available. EPA believes, therefore, that adequate substitutes
are available for CFC-12 as a propellant in lubricants, coatings,
and cleaners for commercial electrical and electronic equipment.
EPA is aware that, to ensure the safety of workers in the
electronics industry, alternative formulations for aerosol products
used on electronic or electrical equipment must be nontoxic
and, in most applications, nonflammable. EPA believes that,
while effective and safe non-CFC propellants are readily available,
non-CFC solvents may not be available.
In making its determination regarding these products, EPA
also considered the economic impact of banning these products.
Since substitutes for CFC solvents in aerosol lubricants, coatings,
and cleaners for electronic equipment are not readily available,
banning these products could have a significant economic impact
on the electronics industry.
In conclusion, EPA will permit the continued use of CFC-11,
CFC-12, and CFC-113 in aerosol lubricants, coatings and cleaners
for electronic and electrical equipment if the CFCs are used
as solvents or diluents. EPA has, however, determined that the
use of CFC-12 as a propellant is nonessential and, therefore,
its use is banned. As noted above, EPA believes that the use
of CFC-12 as a solvent rather than as a propellant is very limited.
EPA, therefore, expects that CFC-12 will be used in very few
aerosol products and only in situations where the manufacturer
can clearly demonstrate that CFC-12 is not used as a propellant.
EPA will continue to examine the need to take action in the
future regarding the remaining uses of CFCs in lubricants,
coatings,
and cleaning fluids.
In addition, one commenter suggested that the treatment of
lubricants, coatings and cleaning fluids for electrical or
electronic
equipment in the proposed rule was ambiguous. The commenter
requested clarification about the effect that the phrase "other
than those specified above" in .82.66(d) had on the treatment
of these products.
In drafting the proposed rule, EPA intended to prohibit all
aerosol uses of CFCs in lubricants, coatings, and cleaning fluids
for electrical or electronic equipment except for the use of
CFC-11 and CFC-113 for nonpropellant purposes in such products.
The preamble to the January 16, 1992 NPRM clearly expressed
this intent (as mentioned above, EPA has subsequently decided
to include the use of CFC-12 for nonpropellant purposes in this
exception). EPA acknowledges, however, that the use of the phrase
"other than those specified above" in .82.66(d) of the proposed
rule did not clearly express this intent, because it could have
been interpreted as excluding additional commercial uses of
such cleaning fluids in certain electronic applications from
coverage under the Class I ban. This was not EPA's intent.
Consequently,
in response to the commenter's request for clarification, the
phrase "other than those specified above" has been changed to
"other than those banned in .82.64(a) or .82.64(b)" in today's
rulemaking.
e. Spinnerette lubricant/cleaning spray. In the proposed
rule, EPA exempted several solvent applications of CFCs in certain
aerosol products due to a lack of available substitutes. One
exempted product category consisted of release agents for molds
using CFC-11 or CFC-113 in the production of plastic and
elastomeric
materials. EPA received one comment requesting that a class
of somewhat similar products, spinnerette lubricant/cleaning
sprays used for synthetic fiber production, be exempted from
the ban on aerosols and pressurized dispensers containing CFCs.
During the production of certain synthetic fibers such as
acrylic, a silicone product is sprayed onto spinning blocks
called spinnerettes. In certain applications, this aerosol product,
containing CFC-114 as the solvent and silicone as the active
ingredient, is used to both clean and lubricate the spinnerettes
in order to remove unwanted residue which otherwise builds up
on them. The formulation acts both as a lubricant and as a cleaning
agent. Spinnerette lubricant/cleaning sprays currently contain
CFCs, both as solvents and as propellants. CFC-114 is preferred
as a solvent because it is nonflammable, nontoxic, and provides
adequate dispersion of the active ingredient. CFC-12 is used
as the propellant. The commenter estimates that its annual usage
of CFC-114 is roughly 9,000 pounds per year.
Based on the information provided by the commenter, EPA
evaluated
spinnerette cleaning lubricant sprays against the criteria for
nonessentiality and determined that: (1) Use of CFCs as solvents
in these aerosol products should not be banned as nonessential
products at this time, but that (2) use of CFCs as propellants
do not warrant an exemption and, therefore, should be banned
as nonessential products.
In making its determination, EPA examined the purpose and
intended use of spinnerette lubricant/cleaning sprays. EPA
acknowledges
the importance of this product for the production of certain
synthetic fibers and does not consider the use of spinnerette
lubricant/cleaning sprays to be nonessential.
The commenter indicated that although research on alternatives
is currently underway, no solvent substitute which is as safe
and effective as the CFC-114 formulation for spinnerette
lubricant/cleaning
sprays is available at this time. However, several substitute
formulations for the use of CFC-12 as a propellant have been
identified including HCFCs and inert gases (e.g., carbon dioxide
and nitrogen oxide). EPA believes, therefore, that adequate
substitutes are available for CFC-12 as a propellant in spinnerette
cleaning lubricants used for fiber production.
To ensure worker safety, spinnerette cleaning lubricants
should be nonflammable and nontoxic. EPA believes that, while
safe and effective non-CFC propellants are readily available,
non-CFC solvent alternatives for CFC-114 may not be available
for all applications at this time.
In making its determination, EPA also considered the economic
impact of banning the use of CFC-114 in spinnerette
lubricant/cleaning
sprays. Since substitutes for the CFC-114 solvent in aerosol
spinnerette lubricant/cleaning sprays are not readily available,
banning these products could have a significant economic impact
on the fiber-producing industries using this production method.
The excise tax on ozone-depleting compounds and the accelerated
phaseout will force manufacturers to adopt alternatives within
a relatively short period of time regardless of the nonessential
products ban. The industry is currently conducting research
on such substitutes.
EPA has, therefore, decided to exempt the use of CFC-114
as a solvent in spinnerette lubricant/cleaning sprays from the
ban on aerosol products and pressurized dispensers containing
CFCs at this time. However, the use of CFC-12 as a propellant
in this product is nonessential and, therefore, such use is
banned.
f. Plasma etching. EPA received several comments requesting
that EPA exempt the use of CFCs for plasma etching from the
ban on aerosol products and pressurized dispensers containing
CFCs.
One step in the manufacturing process of semiconductors and
other microcomputer components requires the sub-micron etching
of circuit lines on thin sheets of silicon crystal. This technology
process, referred to as plasma or dry etching, uses various
chlorine- and fluorine-containing chemicals as halide sources
to create a plasma which is used to etch the silicon wafers
within a sealed chamber. The chemicals used vary depending on
the process and include CFCs, halons, carbon tetrachloride,
and methyl chloroform. These ozone depleting substances are
transformed into chemicals with no ozone depleting potential
in the plasma etching process.
The chemicals used for this process are usually contained
in stainless steel cylinders. Containers of low pressure
substances,
such as CFC-11 and methyl chloroform, are pressurized with nitrogen
or carbon dioxide; containers of high pressure substances are
self pressurized. Typically, hoses and other dispensing mechanisms
are attached to the containers or cylinders prior to their use
for plasma etching to allow the chemical to flow into the sealed
chambers at carefully regulated rates.
Based on information provided by the commenters and after
conducting further research into this process, EPA evaluated
pressurized dispensers for plasma etching against the criteria
for nonessentiality and determined that they should not be banned
as nonessential products.
In making its determination, EPA examined the purpose and
intended use of plasma etching. Pressurized dispensers containing
CFCs for plasma etching provide an important function for the
computer industry in the manufacture of semiconductors and are
not nonessential.
EPA also evaluated the availability of substitutes for the
CFCs used in plasma etching. The Agency is aware that manufacturers
are in the process of developing substitutes for the Class I
substances currently used for plasma etching. The excise tax
on ozone-depleting compounds and the accelerated phaseout will
force manufacturers to adopt alternatives within a relatively
short period of time regardless of the nonessential products
ban. However, no such substitutes are currently available for
immediate use at economical prices. The cost of converting away
from CFCs over a one-year period, as would be required if such
uses were included in the ban on nonessential products-even
if that conversion is technologically feasible-is economically
prohibitive. Industry estimates suggest that costs would approach
several million dollars per facility. Therefore, EPA does not
consider that substitutes are available within the time frame
of the nonessential products rule.
EPA is not aware of any safety or health considerations
associated
with the alternatives for CFCs in plasma etching. However, EPA
is also aware that, since virtually all of the CFCs used for
plasma etching are transformed, the ozone depleting potential
of the CFCs used in making these products is destroyed in the
plasma etching process. Consequently banning the use of CFCs
in the plasma etching process would have an immeasurably small
environmental benefit.
Due to the lack of available substitutes at this time, EPA
has decided to include the use of CFCs for plasma etching in
the list of products exempted from the ban on aerosol products
and pressurized dispensers. The accelerated phaseout will force
manufacturers to adopt alternatives within a relatively short
period of time regardless of the nonessential products ban.
EPA encourages the industry to make a swift and efficient
transition
to these alternatives.
g. Red pepper bear repellent spray. EPA received one comment
requesting that red pepper defensive spray used as a bear repellent
be exempted from the ban on nonessential aerosol products
containing
CFCs. The commenter argued that its product did not meet EPA's
criteria for nonessentiality and, thus, should not be banned.
Red pepper sprays are aerosol products used to temporarily
disable an attacker. They contain an active ingredient (the
essence of red pepper) that causes temporary blindness, breathing
difficulties, and severe skin discomfort to animals or humans
that come into contact with it. Red pepper sprays are used by
individuals and law enforcement agencies for a variety of purposes
ranging from personal protection to crowd control. In addition,
bear repellent spray containing red pepper is used by campers,
hikers, and park and forest service officials, most typically
against charging grizzly bears. EPA is aware that CFC-113 is
used as a solvent in at least one defensive spray. EPA is not
aware of any other safety sprays containing CFCs as propellants.
CFC-113 is used as a solvent in at least one defensive spray.
This product, developed as a bear repellent spray, uses CFC-
113 to propel the active ingredient some distance and produce
a large cloud of repellent fog that remains in the air long
enough to affect a charging bear. The commenter argued that
no available substitute could produce the necessary cloud of
repellent at sufficient distance. The commenter also uses CFC-
113 because it is nonflammable, nontoxic, and compatible with
the active ingredient.
Based on information provided by the commenter and after
conducting further research into this product, EPA evaluated
red pepper sprays against the criteria for nonessentiality and
determined that: (1) Use of CFCs as solvents in red pepper sprays
used as bear repellent should not be banned; but that (2) use
of CFCs as solvents in other safety sprays, including red pepper
sprays, is nonessential; and (3) use of CFCs as propellants
in all safety sprays is nonessential and, therefore, should
be banned under this rule. An exemption to the ban is warranted
only for the use of CFC-113 as a solvent in bear repellent sprays.
In making its determination, EPA examined the purpose and
intended use of red pepper spray. EPA acknowledges that red
pepper sprays serve an important nonfrivolous use and has not
concluded that the use of red pepper sprays is nonessential.
However, EPA has determined that the use of CFCs in red pepper
sprays is, in most cases, unnecessary and is, therefore,
nonessential.
EPA determined that adequate substitutes for CFCs in the
production of red pepper spray were indeed available for all
applications, with the possible exception of bear repellents.
Several manufacturers produce non-CFC aerosol formulations of
red pepper and other personal safety sprays for protection against
humans. Solvents in these formulations include methyl chloroform,
HCFC-141b, dimethyl ether, and water-based compounds. As a result,
EPA has concluded that effective substitutes are available for
the CFC solvent in red pepper and other safety sprays used against
humans, and that use of CFCs in these red pepper sprays is
nonessential.
However, no manufacturer has formulated a non-CFC bear repellent
spray that has been proven to be effective. The solvent use
of CFCs in these products is necessary to allow the spray to
travel long distances and produce adequate dispersion to stop
a charging bear. Therefore, the Agency believes that substitutes
may not be available for application against bears.
There are a number of safety and health issues associated
with the possible substitutes for CFCs in the production of
red pepper spray. EPA understands that, because of potential
dangers posed to both the user and the intended target,
formulations
(including solvents) should be nontoxic and nonflammable. EPA
believes that non-CFC formulations currently exist for most
defensive sprays that are both effective and safe to use. However,
since proven substitutes for CFC-113 in bear repellent have
not been tested yet, EPA concluded that a safe and effective
non-CFC formulation for bear repellent may not be available.
EPA acknowledges that the manufacturer producing the CFC
formulation would suffer some economic impact as a result of
this rulemaking (the company markets this product for use against
humans as well). EPA believes, however, that given a 12-month
period before the ban takes effect, the manufacturer will have
sufficient opportunity to reformulate its product for use against
humans with a substitute for the CFC solvent. However, since
substitutes for CFC solvents in red pepper sprays used as bear
repellent are not readily available at this time, banning these
products could cause more significant economic injury for the
manufacturer of this product. In any case, the manufacturer
will have to convert to a non-CFC substitute soon, given the
phaseout of CFC production by January 1, 1996 under the modified
Montreal Protocol.
In conclusion, EPA will permit the continued use of CFC-113
as a solvent in red pepper sprays used as bear repellent. EPA
believes, however, that it is not necessary to exempt other
safety sprays, including red pepper sprays, for use against
humans from the ban on nonessential products. Therefore, aerosol
or pressurized dispensers of red pepper sprays containing CFCs
which are not sold as bear repellent will be included in the
ban. EPA has also determined that the use of CFC-12 as a propellant
in safety sprays is nonessential and, therefore, such use is
banned. EPA will continue to examine the need to take action
in the future to prohibit the remaining uses of CFCs in red
pepper safety sprays as appropriate.
h. Document preservation. EPA received one comment requesting
that processes and products used for the preservation of books
and archival documents be exempted from the ban on aerosols
and pressurized dispensers containing CFCs. Further research
conducted by EPA determined that at least two manufacturers
in the U.S. produce aerosol products which are used for document
preservation.
Books, documents, and works of art on paper can be preserved
through the application of a nonaqueous deacidification treatment
which neutralizes existing acids in paper and increases its
expected life for several hundred years. There are several
application
methods for this technology, including a dipping method, a
liquified
gas process conducted in an enclosed chamber, and an aerosol
spray method. Most of the existing methods that have proven
to be both safe and effective use CFC solvents (primarily CFC-
113) to dissolve the preserving and alkalizing chemicals and/or
act as carriers to transport them to the paper. CFC-113 is
preferred
because it is nonflammable, nontoxic, evaporates quickly, is
nonreactive with the document material, and displays little
or no tendency to dissolve inks, dyes, or bindings. EPA estimates
that the production of aerosol document preservation sprays
uses less than 10,000 pounds of CFCs per year.
Most documents at large institutions are preserved through
a non-aerosol mass deacidification process. This method does
not necessarily require the use of CFCs but is not generally
available to outside users. However, the aerosol method, which
involves spraying the preserving chemicals directly onto documents
through an aerosol can or pressurized dispenser, is the only
method that is appropriate and affordable for extremely delicate
or valuable documents or for occasional and small volume users
such as librarians, conservators, and archivists. Due to the
risk of loss or irreparable damage, transportation of documents
to centralized deacidification facilities may often not be
possible.
Based on the information provided by the commenter and by
other manufacturers of this product, EPA evaluated document
preservation sprays against the criteria for nonessentiality
and determined that the products should not be banned as
nonessential
products at this time.
In making its determination, EPA examined the purpose and
intended use of document preservation sprays. EPA acknowledges
the importance of this product for preserving valuable and historic
documents and does not consider the use of document preservation
sprays to be nonessential.
Manufacturers have indicated that no substitute which is
as safe and effective as the CFC formulation for aerosol document
preservation sprays is available at this time. The excise tax
on ozone-depleting compounds and the accelerated phaseout will
force manufacturers to adopt alternatives within a relatively
short period of time regardless of the nonessential products
ban. EPA is aware that at least one manufacturer is currently
in the process of developing a non-CFC formulation for its aerosol
deacidification product. Development of this formulation is,
however, in the early stages, and the technology has not yet
been demonstrated to be effective in the field. EPA believes,
therefore, that safe and effective solvent substitutes have
not yet been found.
To protect the safety of both the user and the document to
be preserved, document preservation sprays should be nonflammable
and nontoxic. EPA believes that safe and effective alternatives
for CFC-113 in document preservation sprays are not available
at this time.
In making its determination, EPA also considered the impact
on society of banning this product. Since non-CFC substitutes
for CFC-113 in document preservation sprays are not readily
available, banning this use of CFC-113 would eliminate a product
which may be the only preservation technology available to
occasional
and small volume users. EPA acknowledges that, if these
preservation
sprays were banned, many valuable documents might not be preserved.
The deterioration of many of these documents would result in
a loss to society that, although difficult to measure, would
be significant.
EPA has, therefore, decided to exempt the use of CFC-113
in document preservation sprays from the ban on aerosol products
and pressurized dispensers containing CFCs. EPA does not believe
that this product is a nonessential product under the criteria
specified in Section 610. EPA will, however, continue to examine
the need to take action in the future to prohibit the use of
CFCs in document preservation sprays should substitutes be
developed.
4. Medical Products
The proposed rule exempted certain medical products from
the ban, but it requested comments on the need for continued
CFC use in medical products.
The Agency received many comments regarding the omission
from the regulatory language of certain products that have been
declared essential uses of CFCs by the Food and Drug Administration
(FDA). One commenter recommended that all products listed as
essential by the FDA should be exempted from the ban. The EPA
wants to clarify that it is indeed the Agency's intent to exempt
all products listed as essential by the FDA in 21 CFR 2.125.
With that end in mind, the final rule was re-written to reference
21 CFR 2.125 rather than to list specific uses. Today's final
rule exempts the sale or distribution of CFCs in the medical
products listed in 21 CFR 2.125. EPA will continue to work in
close cooperation with the FDA to monitor the relevant developments
in technology and to evaluate the need for CFCs in various medical
applications. If, at some point in the future, the FDA removes
a category of medical device from its list of essential uses
of chlorofluorocarbons, that product will meet the criteria
for nonessentially and be subject to the Class I ban. Other
comments addressed the specific products described below.
Prior to the public comment period, EPA believed that the
industry had phased out the use of CFCs for administering
intrarectal
hydrocortisone acetate and in anesthetic drugs for topical use
on accessible mucous membranes of humans where a cannula is
used for the application. As a result, it did not list these
uses as exempt from the ban. The extensive information provided
by two commenters sufficiently demonstrated the continued use
of CFCs in these applications. These applications are still
considered essential uses of CFCs by the FDA, and are so listed
in 21 CFR 2.125. The final rule specifically excludes products
listed in 21 CFR 2.125 from the nonessential products ban on
Class I substances; consequently, these products are exempt
from the nonessential products ban at this time.
Another commenter filed extensive comments regarding CFC
use in metered dose inhalers (MDIs). EPA appreciates the detailed
nature of the information presented on MDIs and is encouraged
by research on alternative chemicals for use in MDIs. However,
at this time, no alternative propellant has been approved by
the FDA, and MDIs are still listed in 21 CFR 2.125 as essential
uses of CFCs. Consequently, under the final rule, metered dose
inhalers are exempt from the nonessential products ban at this
time.
One commenter applied for an exemption from the nonessential
products ban for its topical anesthetic and vapocoolant products.
Since the 1978 aerosol ban restricted only CFCs used as
propellants,
the use of CFCs as active ingredients in topical anesthetic
and vapocoolants was not subject to the 1978 ban; however, in
explaining the status of such products, the preamble to the
1978 ban expressed the FDA's intent to address topical anesthetic
and vapocoolant products at a future date.
According to the commenter, its topical anesthetic and
vapocoolant
products fit the definition of medical devices under the Federal
Food, Drug and Cosmetic Act (21 U.S.C. .321). The commenter
alleged that when its topical anesthetic product is applied
to human skin, it acts as a counter-irritant to block pain
associated
with muscle spasms.
The commenter also disputed the findings of the 1989 EPA
report on alternative formulations for products which were exempted
or excluded from the 1978 ban on the use of CFCs in aerosols
products (see Alternative Formulations). The commenter claimed
that the proposed replacement formula (HCFC-142b, HCFC-22 and
ethanol), when applied to human skin, would produce temperatures
in the range of -26 øC to -30 øC, resulting in frostbite.
The
commenter noted that the temperature of the proposed reformulation
could be raised by increasing the proportion of HCFC-142b in
the formulation, but that this change would increase the
flammability
risk significantly.
Finally, the commenter noted that FDA approval is necessary
for the use of any alternative reformulation in medical devices,
and that the FDA has not yet approved an alternative.
The EPA believes that the definition of medical device in
section 601(8) of the Act applies to topical anesthetic and
vapocoolant products. Consequently, the continued use of CFCs
in this application is permitted by EPA until FDA takes further
action with regard to such products. If and when FDA approves
a safe and effective alternative formula for topical anesthetics,
this product will no longer meet the statutory definition of
medical device in section 601(8); at that time, EPA will consult
the FDA and consider promulgating regulations to prohibit the
sale, distribution, or offer of sale or distribution, in interstate
commerce of topical anesthetic and vapocoolant products containing
any ozone-depleting substance. EPA is encouraged to learn that
the commenter is in the process of applying for FDA approval
of a reformulation which does not require the use of either
CFCs or HCFCs. EPA will continue to monitor these developments,
and it may consider regulation of these products at a later
date.
5. Residential Halon Fire Extinguishers
The Agency's request for comments on banning halon fire
extinguishers
for residential use produced a number of responses. Many commenters
supported a ban on the sale and distribution of residential
halon fire extinguishers, and a number of commenters encouraged
EPA to take immediate action to remove halon fire extinguishers
from store shelves; some commenters even urged EPA to ban the
use of all fire extinguishers containing halons. Despite their
differences, all of these commenters argued that substitutes
were currently available for residential halon fire extinguishers,
and that the need to reduce emissions of ozone-depleting chemicals
was sufficient to justify banning these products.
Several other commenters opposed a ban on residential halon
fire extinguishers, arguing that currently available alternatives
were inadequate and that the threat posed to the environment
by residential fire extinguishers was minimal. In addition,
these commenters argued that including these products in the
ban would have a significant adverse impact on manufacturers
of halon fire extinguishers.
Based on the available information (see Background Document
and various comments in Docket), EPA evaluated residential halon
fire extinguishers against the criteria for nonessentiality
and determined that they should not be currently considered
nonessential products. Consequently, EPA has decided not to
ban residential halon fire extinguishers at this time.
In making its determination, EPA examined the purpose and
intended use of residential halon fire extinguishers. Fire
extinguishers
for residential use are critical home safety products. These
products are clearly not frivolous.
Although there are alternatives to halon fire extinguishers
commercially available for residential use, the commenters raised
legitimate concerns about the suitability of these substitutes
for all situations. EPA felt that the important safety function
served by handheld residential fire extinguishers obligated
the Agency to carefully evaluate the safety concerns associated
with a ban on the sale and distribution of halon fire extinguishers
for residential use. As a result of its research, however, EPA
determined that adequate substitutes for halon fire extinguishers
in most situations were indeed available. In fact, some of these
substitutes are more effective than halons for certain types
of fires, such as deep-seated fires (see Background Document).
The Agency recognizes, however, that the continued use of these
products suggests that in certain noncommercial applications,
halon fire extinguishers do not meet the criteria for
nonessentiality.
The health and safety issues associated with the possible
substitutes for halon in residential fire extinguishers include
the toxicity of the various chemicals and the health effects
associated with the product's impact on stratospheric ozone
depletion. EPA believes that excluding the effects of stratospheric
ozone depletion, currently available substitutes provide an
equivalent level of fire safety protection without posing any
offsetting threat to safety or human health. When the health
and environmental effects of stratospheric ozone depletion are
considered as well, EPA believes that there is a compelling
case to be made for phasing out halon fire extinguishers for
residential use.
However, in making its determination to exclude halon fire
extinguishers from the Class I nonessential products ban, EPA
considered several other relevant factors as well. While the
EPA believes that adequate substitutes for residential halon
fire extinguishers currently exist for many uses, the Agency
also believes that given the effective date of today's rulemaking,
the scheduled increase in the excise tax on halons, and the
imminent cessation of halon production under the accelerated
phaseout, little environmental benefit would result from including
residential halon fire extinguishers in the Class I nonessential
products ban.
The dramatic increase in the tax on halons which takes effect
January 1, 1994 should act as a strong incentive for manufacturers
to expedite the phaseout of halons. EPA anticipates that the
tax alone will significantly reduce sales of halon fire
extinguishers
for residential use. Moreover, halon fire extinguishers for
residential use represent only a small fraction of total annual
ODS emissions (far less than one percent of annual global ODP-
weighted emissions).
At the time the NPRM was published, EPA believed that sufficient
time remained to promulgate its final rule well before the November
15, 1992 effective date specified in the statute. Consequently,
in developing the January 16, 1992 NPRM, the Agency believed
that the practical effect of including residential halon fire
extinguishers in the Class I nonessential products ban would
be to accelerate the phaseout of these products by 14 months.
One of the concerns expressed by EPA in the proposed rule was
whether such an action would be worthwhile, considering the
relatively short period of time during which the ban would have
any impact. Since the NPRM was published, Congress has increased
the tax on halons, and the Parties to the Montreal Protocol
have agreed to phase out the production of halon in member
countries,
except for essential uses, by January 1, 1994. Given that the
effective date of the ban for products identified under section
610(b)(3) in today's rulemaking nearly coincides with the January
1, 1994 increase in the excise tax and the ban on halon production
under the Montreal Protocol, this concern is even more pertinent.
EPA believes that the combined effect of the excise tax and
the accelerated phaseout will be to end the sale and distribution
of halon fire extinguishers for residential use. Consequently,
although EPA believes that adequate substitutes exist for halon
in residential fire extinguishers in many situations, the Agency
believes that the use of halon in these products will be addressed
more effectively through the excise tax and the accelerated
phaseout, and, thus, that regulation under section 610 is
unnecessary.
As a result, residential halon fire extinguishers are not included
in the Class I nonessential products ban.
6. Other Uses
EPA received one comment requesting that expanded tobacco
produced using CFC-11 as an expansion agent be included in the
rule as a nonessential product.
The CFC-11 tobacco expansion process is a patented, physical
process that uses CFC-11 to restore cured, aged tobacco to its
original field volume. In this process, cured tobacco is
impregnated
with CFC-11. The impregnated tobacco is then brought in contact
with hot air that causes the CFC-11 to vaporize and the tobacco
to expand. The CFC-11 is then recovered by cooling and compressing.
EPA is aware that other tobacco expansion methods used by tobacco
companies include process using carbon dioxide, steam, and
nitrogen.
Carbon dioxide appears to be the most promising of these
substitutes,
as it can achieve the same expansion levels as the CFC-11 process.
Additional information provided to EPA suggests that tobacco
processors are currently engaged in converting from the CFC-
11 process to the carbon dioxide process.
EPA investigated the possibility of banning the use of CFC-
11 for tobacco expansion as a nonessential product due to the
availability of substitutes. The Agency believes that, due to
the commercial availability of substitutes for CFC-11 in this
process, the use of CFC-11 in tobacco expansion is nonessential.
However, as stated in section III.A.5., EPA believes it is
inappropriate
to ban products through this final rule that were not included
in the proposed rule. Consequently, the use of CFCs in tobacco
expansion is not banned as a nonessential product in today's
rulemaking. Given that CFC production will end by January 1,
1996, EPA believes that there is a strong incentive for companies
to convert all production processes to non-CFC methods. However,
EPA will continue to examine the need to take action in the
future to prohibit the use of CFC's for tobacco expansion.
IV. Summary of Today's Final Rule
This section briefly describes the provisions of today's
final rule. Any changes made to the rule language as a result
of the public comments are described. Various minor changes
to the final rule that have been made for purposes of clarification
are not described herein.
A. Authority
The authority citation remains the same as in the proposed
rule.
B. Purpose (Section 82.60)
This section states that these rules implement sections 608
and 610 of the Clean Air Act Amendments of 1990 regarding emission
reductions and the Class I nonessential products ban. There
were no changes in this section based on public comment. Minor
editing changes were made to improve clarity and consistency.
C. Definitions (Section 82.62)
This section contains the definitions of the terms
"chlorofluorocarbon,"
"commercial," "consumer," "distributor," "product," and "release."
No major changes were made in this section of the rule since
proposal, although the definitions of "distributor" and
"commercial"
were revised to reflect the changes made in section 82.68 in
response to public comments regarding recordkeeping, verification
of commercial status, and commercial identification numbers.
The definition of "chlorofluorocarbon" describes the Class
I substances affected by this rule. The definition of "consumer"
is intended to distinguish the ultimate purchaser, recipient
or user of a product from a manufacturer, seller, or distributor.
The definition of "product" is intended to describe an item
or category of items affected by today's rulemaking. The definition
of "release" is intended to identify products that are affected
by today's rulemaking.
The definition of "commercial" is intended to identify
purchasers
who are not prohibited by the statute from buying cleaning fluids
for electronic and electrical equipment. The definition of
"distributor"
is intended to identify individuals who have responsibilities
in restricting the sale of CFC-containing cleaning fluids for
electronic and photographic equipment to commercial users. The
definitions of "distributor" and "commercial" were revised in
response to public comment to include the sale of a product
to another distributor. In addition, the definition of "commercial"
was changed to include a government contract number as a commercial
identification number in response to public comment. Other minor
editing changes were made to improve clarity and consistency.
D. Prohibitions (Section 82.64)
The proposed rule contained one prohibition which, effective
November 15, 1992, prohibited any person from selling,
distributing,
or offering to sell or distribute, in interstate commerce any
product identified as being nonessential in .82.66. The final
rule differs from the proposed rule in that it implements the
nonessential products ban with three prohibitions rather than
one.
The first prohibition states that effective on February 16,
1993, no person may sell, distribute, or offer for sale or
distribution,
in interstate commerce any plastic party streamer or any noise
horn which is propelled by a chlorofluorocarbon. This prohibition
bans the sale, distribution, or offer of sale or distribution,
of the products specifically mentioned in section 610(b)(1)
of the Act. The effective date has been revised to reflect the
actual publication date of today's rulemaking.
The second prohibition states that effective on February
16, 1993, no person may sell, distribute, or offer for sale
or distribution, in interstate commerce any cleaning fluid for
electronic and photographic equipment which contains a
chlorofluorocarbon
to anyone who does not provide proof that he or she is a commercial
purchaser, as defined under section 82.62. This prohibition
makes the sale, distribution, or offer of sale or distribution,
in interstate commerce of the products specifically mentioned
in section 610(b)(2) of the Act to noncommercial purchasers
unlawful, as required by the statute. The effective date has
been revised to reflect the actual publication date of today's
rulemaking.
The third prohibition states that effective on January 17,
1994, no person may sell, distribute, or offer for sale or
distribution,
in interstate commerce any product listed as nonessential in
.82.66(c) and .82.66(d). This prohibition makes it unlawful
to sell, distribute, or offer for sale or distribution, in
interstate
commerce any of the products determined by the Administrator
under section 610(b)(3) of the Act to be nonessential. The
effective
date has been revised to reflect the actual publication date
of today's rulemaking, to facilitate the liquidation of existing
inventories, and to allow manufacturers sufficient time to redesign
and modify their production facilities and manufacturing processes,
consistent with congressional intent.
E. Nonessential Products and Exceptions (Section 82.66)
The list of nonessential products in the final rule differs
from the proposed rule with regard to exclusions for one foam
product and several aerosol products or pressurized dispensers.
In its January 16, 1992 NPRM, EPA specifically excluded several
products from the proposed ban on aerosols and other pressurized
dispensers containing CFCs. These products were: contraceptive
vaginal foams; lubricants for pharmaceutical and tablet
manufacture;
metered dose inhalation devices; gauze bandage adhesives and
adhesive removers; products using CFC-11 or CFC-113 as lubricants,
coatings and cleaners for electrical or electronic equipment;
products using CFC-11 or CFC-113 as lubricants, coatings and
cleaners for aircraft maintenance uses; and products using CFC-
11 and CFC-113 as release agents for molds used in the production
of plastic and elastomeric materials (for additional information
on these products, see Alternative Formulations and Background
Document).
Today's rulemaking differs from the proposed rule in that
the exclusions for contraceptive vaginal foams and metered dose
inhalation devices, which were originally listed separately,
have been replaced by a more general exclusion for all medical
devices listed in 21 CFR 2.125(e); these products are included
on that list. Intrarectal hydrocortisone acetate, anesthetic
drugs for topical use on accessible mucous membranes of humans
where a cannula is used for the application, and polymyxin B
sulfate-bacitracin-zinc-neomycin sulfate soluble antibiotic
powder without excipients for topical use on humans are also
medical devices listed as essential uses of CFCs in 21 CFR 2.125(e)
and are therefore excluded from the nonessential products ban
at this time. In response to comments, topical anesthetic and
vapocoolant products have also been excluded from the nonessential
products ban, as have products using CFC-12 for nonpropellant
purposes in lubricants, coatings or cleaning fluids for electrical
or electronic equipment. Spinnerette lubricant/cleaning sprays
that contain CFC-114 and are used in the production of synthetic
fibers have also been excluded from the nonessential products
ban, as have products using CFC-113 in document preservation
sprays and bear repellent sprays, and the use of CFCs in plasma
etching. In addition, in response to public comment, the Agency
has excluded the use of flexible and packaging foam in the
manufacture
of coaxial cable from the Class I products ban at this time.
Other minor editing changes were made to improve clarity and
consistency.
F. Verification, Public Notice, and Recordkeeping Requirements
(Section 82.68)
The January 16, 1992 NPRM presented four options for restricting
the sale of these products to commercial users, and proposed
transaction-specific recordkeeping requirements to help ensure
compliance with the prohibition on the sale of cleaning fluids
for noncommercial electronic and photographic equipment.
The final rule differs from the proposed rule in that
recordkeeping
requirements for distributors of CFC-containing cleaning fluids
for electronic and photographic equipment have been eliminated.
Distributors need not maintain records of transactions involving
these products; instead, distributors must verify that purchasers
are commercial users, and they must post a sign stating that
the sale of these products for noncommercial use is prohibited.
V. Effective Dates
The effective date for the proposed rule was November 15,
1992. This final rule differs from the proposed rule in that
it makes it unlawful to sell, distribute, or offer to sell or
distribute, in interstate commerce the products specifically
mentioned in 40 CFR section 82.66(a) effective on February 16,
1993. This rule also restricts the sale, distribution, or offer
of sale or distribution, in interstate commerce of the products
specifically mentioned in 40 CFR section 82.66(b) effective
on February 16, 1993, and it bans the sale, distribution, or
offer of sale or distribution, in interstate commerce of the
products identified in 40 CFR 82.66(c) and 82.66(d) as nonessential
effective on January 17, 1994.
VI. Judicial Review
Under section 307(b)(1) of the Clean Air Act, EPA hereby
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
Circuit Court of Appeals for the District of Columbia Circuit
within 60 days of publication. Under section 307(b)(2) of the
Act, the requirements that are the subject of today's rule may
not be challenged later in judicial proceedings brought to enforce
these requirements.
VII. Summary of Supporting Analyses
A. Executive Order 12291
Executive Order (E.O.) 12291 requires the preparation of
a regulatory impact analysis for major rules, defined by the
order as those likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers,
individual
industries, federal, state or local government agencies, or
geographic regions; or
(3) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises
in domestic or export markets.
EPA has determined that this proposed regulation does not
meet the definition of a major rule under E.O. 12291 and has
therefore not prepared a formal regulatory impact analysis.
EPA has instead prepared a background document (see Background
Document), which includes a qualitative study of the economic
impact of this proposed regulation for each product identified
as nonessential and prohibited from sale or distribution.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, 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).
The Administrator believes that the regulation will not have
a significant impact on a substantial number of small entities
and has therefore concluded that a formal RFA is unnecessary.
A qualitative treatment of potential impacts on small entities
is included in EPA's background document accompanying this
regulation.
EPA believes that most companies in the industries affected
by this regulation have already ceased using CFCs in the affected
products. In addition, EPA believes that the rising excise tax
and the scarcity resulting from the required incremental reductions
of these substances will provide a continually increasing incentive
to switch to substitutes for those companies that have not already
done so. EPA also believes that the prohibition of sales to
noncommercial users in the case of the products identified in
section 82.66(b) of today's rulemaking (CFC-containing cleaning
fluids for electronic and photographic equipment) allows
manufacturers,
distributors, and retailers to continue to market those products
to commercial users with little or no impact. Moreover, EPA
would like to point out that the phaseout in the year 2000 of
the production and import of Class I substances provides a de
facto ban on all products using these substances. Regardless
of the nonessential products ban, the phaseout will force
manufacturers
to adopt non-CFC alternatives in the near future. Since the
publication of the proposed rule, the Parties to the Montreal
Protocol have agreed to phase out production of Class I substances
by January 1, 1996, and the President has announced plans to
accelerate the phaseout under section 606 of the Clean Air Act,
as amended (see section I.G. of today's preamble); such action
will reduce the impact of today's rulemaking even more. EPA
will consider the economic impact of the accelerated phaseout
in its rulemaking to carry out its obligations under the Montreal
Protocol. Consequently, EPA anticipates that the economic impact
of today's rulemaking will be minimal.
For the purposes of this regulation, EPA believes that
identifying
companies by Standard Industrial Classification (SIC) code is
inappropriate, because most of the affected products represent
only a small fraction of the products within each SIC code.
In addition, since most manufacturers have already ceased using
Class I substances, only a few companies within each classification
currently manufacture products containing CFCs. Due to the small
number of potentially affected companies within each industry,
the definition of companies as large or small is based for the
most part on the characterization of manufacturing process by
industry contacts, rather than on a standardized measure such
as number of employees.
C. Paperwork Reduction Act
There are no information collection requirements in this
rule. The proposed rule contained recordkeeping requirements
associated with the sale of chlorofluorcarbon-containing cleaning
fluids for electronic and photographic equipment, but these
requirements have been eliminated in the final rule in favor
of a public disclosure requirement. No Information Collection
Request (ICR) is required for a public disclosure requirement.
The Information Collection Request document prepared by EPA
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., for
the proposed rule (ICR No. 1592.01) is contained in the Docket
for this rulemaking. A copy may be obtained by writing to the
Information Policy Branch, U.S. Environmental Protection Agency,
401 M Street, SW. PM-223Y; Washington, DC 20460 or by calling
(202) 260-2740.
VIII. References
United Nations Environment Programme. Aerosols, Sterilants and
Miscellaneous Uses of CFCs: Report by the Technical Options
Committee (June 30, 1989).
United Nations Environment Programme. Environmental Effects
Panel Report (1989).
United Nations Environment Programme. Final Report of the Halons
Technical Options Committee (August 11, 1989).
United Nations Environment Programme. Flexible and Rigid Foams
Technical Options Report (June 30, 1989).
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 Identification of Nonessential Products that Release Class
I Substances (July 1, 1991).
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. 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
Administrative practice and procedure, Air pollution control,
Chemicals, Chlorofluorocarbons, Clean Air Act Amendments of
1990, Exports, Imports, Nonessential products, Recordkeeping
and reporting requirements, Stratospheric ozone layer.
Dated: December 31, 1992.
William K. Reilly,
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, 7671-7671(q).
2. A new subpart C is added to read as follows:
Subpart C-Ban on Nonessential Products Containing Class I
Substances
Sec.
82.60 Purpose.
82.62 Definitions.
82.64 Prohibitions.
82.66 Nonessential products and exceptions.
82.68 Verification and public notice requirements.
.82.60 Purpose.
The purpose of this subpart is to implement the requirements
of sections 608 and 610 of the Clean Air Act Amendments of 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 part 82, appendix A to subpart A.
(b) Commercial, when used to describe the purchaser of a
product, means a person that 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; and
(4) A government contract number and that uses the product
in the purchaser's business or sells it to another person.
(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;
(1) Means the seller of a product or another distributor;
or
(2) A person who sells or distributes that product in 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.
.82.64 Prohibitions.
(a) Effective on 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).
Effective on 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 on 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).
.82.66 Nonessential products and exceptions.
The following products which release a Class I substance
(as defined in 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, 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,
but which contain no other CFCs;
(viii) Spinnerette lubricant/cleaning sprays used in the
production of synthetic fibers, which contain CFC-114, 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, but
which contain no other CFCs; and
(xi) Red pepper bear repellent sprays which contain CFC-113,
but which contain no other CFCs.
.82.68 Verification and public notice requirements for
distributors
of certain products intended exclusively for commercial use.
(a) Effective on 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 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. The seller or distributor must have a
reasonable
basis for believing that the information presented by the purchaser
is accurate.
(b) Effective on 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 40 CFR 82.68(a)."
[FR Doc. 93-757 Filed 1-14-93; 8:45 am]
BILLING CODE 6560-50-M
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