Vol. 58 No. 249 Thursday, December 30, 1993 p 69638 (Rule)
1/4095
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4819-8]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule establishes regulations that implement
the statutory ban on nonessential products containing or
manufactured
with class II ozone-depleting substances under section 610(d)
of the Clean Air Act, as amended. This final rule was developed
by EPA in order to clarify definitions and provide exemptions,
as authorized under section 610(d). The substances affected
by this rulemaking are certain products made with
hydrochlorofluorocarbons
(HCFCs). This action will facilitate implementation of the ban,
with a statutory effective date of January 1, 1994, and provide
guidance and exceptions to the ban that are authorized by the
statute.
EFFECTIVE DATE: This final rule is effective January 1, 1994.
For additional information concerning the effective date see
section VI in Supplementary Information.
ADDRESSES: Comments and materials supporting this rulemaking
are contained in Public Docket No. A-93-20, in room M-1500,
Waterside Mall (Ground Floor), Environmental Protection Agency,
401 M Street, SW., Washington, DC 20460. Dockets may be inspected
from 8:30 a.m. until 12 noon, and from 1:30 p.m. until 3 p.m.,
Monday through Friday. A reasonable fee may be charged for copying
docket materials.
FOR FURTHER INFORMATION CONTACT: Cynthia Newberg, Program
Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street,
SW., Washington, DC 20460. (202) 233-9729. The Stratospheric
Ozone Information Hotline at 1-800-296-1996 can also be contacted
for further information.
SUPPLEMENTARY INFORMATION: The contents of today's preamble
are listed in the following outline:
I. Background
II. Notice of Proposed Rulemaking
A. Medical Products
B. Aerosol Products and Pressurized Dispensers Containing
Class II Substances
1. Definition of Aerosol Products and Pressurized Dispensers
2. Proposed Exemptions
C. Foam Products Containing or Manufactured with Class II
Substances
1. Insulating Foam Products
2. Foam Used to Meet Federal Motor Vehicle Safety Standards
D. Temporary Exemptions
E. Ban On Sale and Distribution in Interstate Commerce
F. Scope of Interstate Commerce
G. Resale of Used Products
H. Imports and Exports
I. The Use of Affected Products Purchased Before the Effective
Date of the Ban
J. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
III. Summary of Major Public Comments
IV. Response to Comments
A. Aerosol Products and Pressurized Dispensers
1. Products Using Class II Substances As Replacements For
Class I Substances That Include Methyl Chloroform, Carbon
Tetrachloride or Halons
a. Wasp and Hornet Sprays
b. Hydraulic Brake Cleaners
c. Portable Fire Extinguishers
2. Products Requiring Both Class I and Class II Exemptions
a. Aircraft Pesticides
b. Dusters
c. Tire Inflators/tire sealer
3. Aerosol Products and Pressurized Dispensers Exempted By
The Class I Ban
a. Lubricants for pharmaceutical and tablet manufacture
b. Solvent uses in lubricants, coatings and cleaning fluids
for electrical or electronic equipment
c. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
d. Solvent uses in mold release agents
e. Solvent uses in spinnerette lubricant/cleaning sprays
f. Document Preservation Sprays
B. Foams
1. Definition of ``Plastic Foam Product''
2. Definition of ``insulating products''
a. Closed Cell Rigid Polyurethane Foam
i. Foam Used As Flotation Foam
ii. Taxidermy
iii. Aerosol Polyurethane Foam
b. Closed Cell Rigid Polystyrene Boardstock Foam
c. Closed Cell Rigid Polystyrene Sheet Foam
d. Closed Cell Polyethylene Foam
i. Backer Rods
ii. Pipe Wrap
iii. Aerosol Polyurethane Foam
e. Inomer Foam
f. Polyvinyl Chloride
3. Foam Needed To Meet Motor Vehicle Safety Standards
4. Use Of a Class II Substance As A Startup Gas in Foam
Production
C. Temporary Exemptions
1. Existing Inventories
2. Products Requiring Federal Approvals
D. Interstate Commerce
E. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
V. Summary of Changes From Proposal
VI. Effective Dates
VII. Summary of Supporting Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VIII. Judicial Review
IX. References
I. Background
The Class II Nonessential Products Ban proposal, published
on September 27, 1993 (58 FR 50464), contains a detailed background
of the issues relating to the proposed ban. That background
section includes information on the ozone depletion problem,
the 1978 aerosol ban, the Montreal Protocol, the excise tax
on certain ozone-depleting substances, the Clean Air Act as
amended in 1990 (the Act), the proposed accelerated phaseout
of ozone-depleting substances, and the labeling rule. Rather
than repeat this background discussion, EPA refers readers of
this final rule to 58 FR 50464 for such background.
II. Notice of Proposed Rulemaking
On September 27, 1993, EPA published a notice of proposed
rulemaking (NPRM) (58 FR 50463) addressing issues related to
the statutory prohibition against the sale or distribution,
or offer for sale or distribution in interstate commerce of
nonessential products containing or manufactured with a class
II substance, imposed by section 610(d) of the Act.
During the development of that NPRM, EPA met with
representatives
from various industries and environmental organizations. The
Agency also conducted two advisory meetings held in the EPA
auditorium, on February 19, 1993, and March 29, 1993, in order
to allow the public to review draft background documents on
products containing or manufactured with class II substances
and to offer comments and technical expertise on the development
of the NPRM. Minutes of these meetings and copies of the background
documents are contained in Docket A-93-20. The Agency used these
forums as appropriate venues for hearing the concerns of various
stakeholders potentially affected by the class II ban.
Title VI of the Act divides ozone-depleting chemicals into
two distinct classes. Class I is comprised of chlorofluorocarbons
(CFCs), halons, carbon tetrachloride and methyl chloroform,
Methyl Bromide and hydrobromofluorocarbons. Class II is comprised
of hydrochlorofluorocarbons (HCFCs). (See listing notice January
22, 1991; 56 FR 2420.) Section 610(b) of the Act, as amended,
requires EPA to promulgate regulations banning nonessential
products releasing class I substances. EPA published its final
rule for the Class I Nonessential Products Ban on January 15,
1993 (58 FR 4768).
In the September 27 NPRM, EPA proposed regulations to implement
the statutory prohibition imposed by section 610(d) on the sale
or distribution in interstate commerce of specified class II
products. Since many aspects of the proposed regulations were
similar in structure to the section 610(b) final rule banning
class I substances published on January 15, 1993, EPA proposed
to revise the regulations promulgated under 40 CFR part 82 subpart
C to incorporate the class II ban.
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)
authorizes EPA to grant certain exceptions and section 610(d)(3)
creates exclusions from the class II ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant
exceptions
from the class II ban for aerosols and other pressurized dispensers
where ``the use of the aerosol product or pressurized dispenser
is determined by the Administrator to be essential as a result
of flammability or worker safety concerns,'' and where ``the
only available alternative to use of a class II substance is
use of a class I substance which legally could be substituted
for such class II substance.''
Section 610(d)(3) states that the ban of class II substances
in plastic foam products shall not apply to ``foam insulation
products'' or ``an integral skin, rigid, or semi-rigid foam
utilized to provide for motor vehicle safety in accordance with
Federal Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such standards.''
EPA believes that, unlike the class I ban, the class II ban
is self-executing.{1} Section 610(d) bans the sale of the specified
class II products by its own terms, without any reference to
required EPA regulations. Consequently, EPA concluded that it
was not required to promulgate regulations within one year of
enactment under section 610(a) to implement the class II ban.
EPA believes that the statutory text clearly establishes this
obligation only with respect to regulations under section 610(b)
to implement the class I ban.{2} EPA issued proposed regulations
and is today issuing final regulations implementing the class
II ban in order to better define the products banned under section
610(d) and to grant authorized exceptions under section 610(d)(2).
Section 301(a) of the Act gives EPA the authority to promulgate
such regulations as are necessary to carry out its functions
under the Act. EPA believes that it is necessary within the
meaning of section 301 to promulgate regulations more clearly
defining the products subject to the class II ban and granting
exceptions to the ban under section 610(d)(2). The following
sections discuss the NPRM in more detail.
³ {1} The Congressional Record statement by
Representative
³Ralph Hall (D-Texas) regarding the Congressional intent
³of the legislation as passed states ``any failure of
³the Administrator to promulgate regulations as required
³by this title, or any court order delaying the
effective
³date of such regulations, shall not alter the effective
³dates of the statutory requirements and prohibitions
³that are set forth in this title'' (October 26, 1990,
³136 Congressional Record H12907). Thus, EPA clearly
stated
³in the NPRM that the Agency has no authority to alter
³the effective date of the statutory ban.
³ {2} Although the legislative history of section 610
³is unclear 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. EPA believes that
this
³analysis applies similarly to the class II ban. See 136
³Congressional Record S16948, October 27, 1990.
A. 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; 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.''
EPA proposed exempting medical devices that the FDA considers
essential by exempting all devices listed under 21 CFR section
2.125(e).
B. Aerosol Products and Pressurized Dispensers Containing Class
II Substances
1. Definition of Aerosol Products and Pressurized Dispensers
Section 610(d) bans the sale of all aerosol products and
pressurized dispensers containing class II substances not
specifically
excepted by the EPA under section 610(d)(2). Consistent with
the class I ban, EPA proposed that the phrase ``aerosol product
or other pressurized dispenser'' should not be interpreted as
applying to pressurized containers (``bulk containers'') used
to distribute materials for use into other products because
these materials generally are self-pressurized when so
contained.{3}
³ {3} As explained in the class I ban, such an
interpretation
³would have had a devastating and unintended impact on
³the air-conditioning and refrigeration industry.
The final rulemaking for the Class I Nonessential Products
Ban clarified EPA's interpretation of this language (58 FR 4790).
EPA believes that the phrase ``aerosol product or other pressurized
dispenser'' was meant to include non-aerosol products such as
CFC-12 dusters and freeze sprays. However, the Agency does not
believe that the term ``other pressurized dispenser'' applies
to pressurized containment vessels such as small containers
of motor vehicle refrigerant or containment vessels for recycled,
recovered, or reclaimed refrigerant. Under EPA's interpretation,
the phrase ``aerosol products or pressurized dispenser'' does
not include bulk pressurized containers which are used solely
for the transportation or storage of controlled substances to
be later integrated into a use system. As described in 40 CFR
82.3(i) and the December 10, 1993 final rule implementing section
606 and related provisions of sections 603, 607, and 616 of
the Act (58 FR 65018), a ``controlled substance means any substance
listed in appendix A or appendix B to [subpart A] whether existing
alone or in a mixture, but excluding any such substance or mixture
that is in a manufactured product other than a container used
for the transportation or storage of the substance or mixture''
(58 FR 65063). A bulk container, also described in 40 CFR 82.3(i),
means a container in which ``a listed substance or mixture must
first be transferred from [and transferred] to another container,
vessel, or piece of equipment in order to realize [the controlled
substance's] intended use'' (58 FR 65063). EPA distinguishes
between manufactured products and bulk containers, where
manufactured
products are subject to the ban and bulk containers are not.
2. Proposed Exemptions
The products that EPA proposed to exempt are actually product
categories rather than particular products manufactured and
marketed by individual companies, relying upon the definition
of ``product'' developed in the Class I Nonessential Products
Ban rulemaking. EPA reiterated its belief that in section 610
of the statute, Congress applied this term to any type or category
of merchandise or commodity offered for sale, as well as any
use of an ozone-depleting substance in the manufacture or packaging
of any such merchandise or commodity. Consequently, when granting
exceptions today, EPA is taking action with regard to entire
product categories rather than individual products in this
rulemaking.
(EPA recognized that in the case of certain niche markets, there
may be only one individual product that falls within a particular
category; in such a case, EPA could consider an exception for
that specific product.)
EPA carefully considered requests for exceptions and exemptions
received prior to the publication of the NPRM in order to determine
which foam or aerosol products may meet the criteria for exceptions
and exemptions set out in the statute. EPA stated in the NPRM
that there was legal authority to consider exempting any of
the eleven products that received class I exemptions, as well
as any product that was using an HCFC to replace methyl chloroform,
carbon tetrachloride or halons. EPA put forth a list of proposed
exemptions, asked for additional information concerning several
products for which the Agency could not adequately determine
if an exemption was authorized and discussed several possible
revisions to the class I ban that would result in creating the
potential for additional exemptions.
EPA proposed to exempt the following aerosol products:
. Medical devices listed in 21 CFR 2.125(e);
. Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain class II substances for
solvent purposes, but which contain no other class II substances;
. Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain class II substances for solvent purposes
but which contain no other class II substances;
. Mold release agents used in the production of plastic and
elastomeric materials, which contain class II substances for
solvent purposes but which contain no other class II substances;
and
. Spinnerette lubricants/cleaning sprays used in the production
of synthetic fibers, which contain class II substances for solvent
purposes but which contain no other class II substances.
Based on the restriction regarding the sale and distribution
of certain cleaning fluids containing class I substances to
commercial purchasers, EPA also proposed exempting sales or
distribution to commercial purchasers of any aerosol or pressurized
dispenser cleaning fluid for electronic and photographic equipment
which contains a class II substance.
EPA requested additional comment to determine if exemptions
were warranted based on worker safety or flammability concerns
regarding the use of a substitute for class II substances in
the products listed below, as well as comment on current and
potential uses of class II substances in the following products:
. Lubricants for pharmaceutical and tablet manufacture;
. Gauze bandage adhesives and adhesive removers;
. Topical anesthetic and vapocoolant products;
. Plasma etching;
. Solvent uses in document preservation sprays;
. Solvent uses in red pepper bear repellent sprays.
In order to grant an exception to the class II ban, the only
available alternative to the use of the class II substance must
be a legal use of a class I substance and the Agency must determine
that the aerosol product or pressurized dispenser is essential
as a result of flammability or worker safety concerns.
Consequently,
EPA was generally limited to considering products that were
exempted under the class I ban or products that use HCFCs as
substitutes for methyl chloroform, carbon tetrachloride or halons.
EPA discussed in the NPRM that the class II exemptions are
integrally
linked to the Class I Nonessential Products Ban. EPA believes
that the class I ban and the Act gave ample notice to the public
through the class I rulemaking process that future exemptions
from the class II ban would not be available. The NPRM notes,
however, that there are a number of products that do not use
class I substances, but do use class II substances. Some of
the manufacturers of these products may not have commented on
the need for a class I exemption, because they were not aware
of the connection between the two bans (e.g. that class II
exemptions
could only be obtained where class I use was legal). As stated
above, without a legal class I use, the Agency does not have
authority under section 610(d) to grant exemptions under the
class II ban. EPA proposed considering the need to revise the
class I ban to provide exemptions for several products brought
to the Agency's attention prior to the issuance of the NPRM.
For the most part, these were products that no longer used class
I substances and therefore did not submit comments to EPA during
that rulemaking. Therefore, since these products were not
sufficiently
considered in the earlier rulemaking, these products could not
meet the statutory requirement regarding the only legal substitute
being the use of a class I substance. The Agency requested comment
on the need to revisit the Class I Nonessential Products Ban
through this rulemaking with respect to any product for which
there is no substitute for the class II use other than the use
of a class I substance, where that use would no longer be legal.
EPA specifically discussed two products:
. pesticides used in aircraft; and
. antispatter products used by welders.
In addition, EPA discussed the possibility of considering
other factors not specified in the Act, such as economic
feasibility
or availability of the alternatives. EPA stated, however, that
it did not believe it had such authority, but requested comment
regarding the economic feasibility and availability of alternatives
relative to dusters and safety sprays and whether EPA could
consider these factors.
Finally, the Agency discussed granting exemptions based on
the legal use of methyl chloroform, carbon tetrachloride and
halons. The NPRM specifically mentioned two products. The first
product was a pesticide, used to kill wasps and hornets nesting
near high-voltage power lines, that may require an exception
based on the solvent use of HCFC-141b in a new formulation,
replacing the current formulation that uses methyl chloroform.
The second product described in the NPRM is a parts cleaner
for hydraulic and electronic parts in aircraft, automotive and
marine maintenance. EPA requested comment on worker safety or
flammability concerns regarding the manufacturing and use of
these products, as well as comment on current and potential
uses of class II substances in both products. In addition, EPA
requested comment on whether the only available alternative
to the use of a class II substance in the wasp and hornet pesticide
and the hydraulic parts cleaner is the use of a class I substance.
EPA was unaware of any other products for which manufacturers,
distributors or retailers are substituting or planning to
substitute
class II substances, where the only legal substitute for the
class II substance is the use of a class I substance; however,
EPA requested comment on the need to grant additional exceptions
based on worker safety or flammability concerns for products
containing or manufactured with class II substances where the
only alternative is the legal use of a class I substance.
C. Foam Products Containing Or Manufactured With Class II
Substances
Section 610(d) prohibits the sale, distribution, or offer
of sale or distribution in interstate commerce of all plastic
foam products which contain, or are manufactured with, class
II substances, and which are not specifically excluded from
the ban under section 610(d)(3), as of January 1, 1994. Certain
types of plastic foam products, specifically foam insulation
products and integral skin, rigid, or semi-rigid foams necessary
to meet the Federal Motor Vehicle Safety Standards, are excluded
from the ban by the statute. However, in this rulemaking, EPA
has determined which plastic foam products qualify as ``foam
insulation products,'' and whether adequate substitutes for
certain HCFC-blown foams are practicable for effectively meeting
the Federal Motor Vehicle Safety Standards.
The NPRM states that for the purposes of this rulemaking,
EPA interprets the term ``plastic foam product'' to mean any
product (as defined in 40 CFR 82.62) composed in whole or in
part of material that can be described as ``foam plastic'' or
``plastic foam.'' EPA interprets ``foam plastic'' or ``plastic
foam'' to mean a type of plastic such as polyurethane or
polystyrene
which has been produced using blowing agents to create bubbles
or ``cells'' in the material's structure.
The foam plastics manufacturing industries, the markets their
products serve, and their uses of CFCs and HCFCs are extremely
varied. CFC-11, CFC-12, CFC-113, CFC-114, HCFC-22, HCFC-141b,
and HCFC-142b have all been used to some extent as blowing agents
in the manufacture of plastic foam products, which include building
and appliance insulation, cushioning foams, packaging materials,
flotation devices and shoe soles.
1. Insulating Foam Products
There are two basic types of foam produced with halocarbons:
thermosetting foams and thermoplastic foams. In the production
of thermosetting foams, a blowing agent is mixed with chemicals
which react to form the plastic foam product. With thermoplastic
foams, the blowing agent is injected into a molten plastic resin
which hardens upon cooling.
The NPRM discusses an important distinction 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. The gas trapped in closed
cell foams can, if it possesses a low thermal conductivity,
provide significant thermal insulation. All of the foam products
used as thermal insulation are closed cell foams. Open cell
foams are not good thermal insulators.
CFCs had been commonly used as blowing agents in the
manufacturing
process of many foam products because they have suitable boiling
points and vapor pressures, low toxicity, very low thermal
conductivity,
are non-flammable, non-reactive, and, until the imposition of
the excise tax on ozone-depleting substances, they had been
very cost-effective. Among the many commonly used substitutes
for CFCs in foam production are HCFCs, CO2, hydrocarbons and
methylene chloride. In addition, HFCs and fluorinated ethers
may offer long-term substitutes for plastic foam production.
Section 610(d)(3) states that the ban on plastic foam products
containing or manufactured with HCFCs shall not apply to ``foam
insulation products.'' EPA identified two possible interpretations
of this phrase. ``Foam insulation products'' could be interpreted
to mean products containing foam that are used for insulating
some object. This phrase could also mean products containing
``insulating foam.''
In addition, the NPRM considered different possible
interpretations
of the word ``insulation.'' The largest use of plastic foams
produced with CFCs and HCFCs is in products that provide thermal
insulation for buildings, equipment, and a host of different
objects, but comments received during the development of the
NPRM suggested that the word ``insulation'' could also conceivably
refer to a product or material that protects or ``insulates''
some object from other phenomena, such as noise, shock, or
electromagnetic
radiation. Several commenters have suggested to EPA that the
word ``insulation'' should be interpreted to mean a product
or material that protects some object from physical impacts
or vibration. EPA examined each of these options in preparing
the proposed rulemaking.
The NPRM states that EPA believes that the word ``insulation''
should be interpreted to mean thermal insulation exclusively.
The primary uses of plastic foam products consist of thermal
insulation, cushioning, and packaging applications.
Because the statutory language is ambiguous, EPA has the
authority to reach a reasonable interpretation in developing
a definition of foam insulation. (See Chevron v. NRDC, 467 U.S.
837 (1984)). Reviewing the provisions of section 610 as a whole,
EPA proposed that the exemption in section 610(d)(3)(A) should
apply only to thermal insulation products. In section 610(d)(3),
Congress provided two statutory exemptions, one for foam insulation
and one for certain types of motor vehicle safety foam under
specified circumstances. Under a broad interpretation of foam
insulation including all insulating uses, such as physical shock
or impact insulation, motor vehicle safety foams would be included
in the definition of foam insulation, since motor vehicle safety
foams serve to insulate vehicle occupants from crash impact.
Therefore, the second exemption provided by Congress would be
entirely unnecessary if the first exemption were broad enough
to include the products covered by the second exemption.
Furthermore,
it would not be necessary for Congress to limit motor vehicle
safety foams to specific circumstances where substitutes were
unavailable. A broad interpretation of the definition of foam
insulation would exempt motor vehicle safety foams from the
class II ban even where substitutes were easily available, contrary
to the explicit provisions of the second exemption. EPA concluded
that since a broad interpretation of insulating foam would render
the second exemption superfluous, the better reading of the
statute would limit the first exemption to thermal insulation
foams. See the NPRM for a full discussion of this issue (58
FR 50481).
For the purposes of this rule, EPA proposed defining ``foam
insulation product'' as any product containing the following
materials:
(1) Closed cell rigid polyurethane foam,
(2) Closed cell rigid polystyrene boardstock foam, and
(3) Closed cell rigid phenolic foam.
In addition, EPA proposed to define pipe insulation (also
referred to as ``pipe wrap'') made out of closed cell rigid
polyethylene foam as a foam insulation product. As explained
in the NPRM, EPA concluded that all of these products were thermal
foam insulation products and that no other products were thermal
foam insulation products (58 FR 50481).
2. Foam Used To Meet Federal Motor Vehicle Safety Standards
Section 610(d)(3) states that the ban on class II substances
in plastic foam products shall not apply to any ``foam insulation
product'' or ``an integral skin, rigid, or semi-rigid foam utilized
to provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute
substance (other than a class I or class II substance) is
practicable
for effectively meeting such Standards.''
Section 103 of the National Traffic and Motor Vehicle Safety
Act of 1966 authorized the National Highway Traffic Safety
Administration
(NHTSA) to promulgate Federal Motor Vehicle Safety Standards,
which have subsequently been published in 49 CFR part 571. The
Federal Motor Vehicle Safety Standards are, for the most part,
performance standards. The use of particular materials is generally
not specified in the standards in 49 CFR part 571 affected by
this rulemaking. Consequently, to the best of the EPA's knowledge,
no HCFC-blown foams are specifically required by the NHTSA
regulations.
However, since the enactment of the laws requiring these standards
beginning in the late 1960s, the motor vehicle manufacturing
industry has relied almost exclusively on foams to meet the
part 571 impact protection standards (the only exception EPA
is aware of consists of leather-wrapped steering wheels and
leather-covered dash boards, and the Agency understands that
even these products have foam underneath).
After conducting its own research and consulting with officials
at the NHTSA and industry sources, EPA proposed applying the
statutory ban on the sale, distribution, or offer of sale or
distribution in interstate commerce to all foam components used
in motor vehicles except those made out of integral skin foam
and those which qualify as foam insulation products as defined
in . 82.62(h) effective January 1, 1994. Based on the Agency's
understanding of when substitutes to HCFC use in integral skin
foam used to meet Federal Motor Vehicle Safety Standards would
be available, EPA proposed exempting integral skin foam made
with HCFCs used to meet Federal Motor Vehicle Safety Standards
under the provisions of section 610(d)(3)(B) from the class
II ban on plastic foam products only until January 1, 1996.
At that time, the exemption for HCFC-blown integral skin foam
will ``sunset.'' In addition, EPA proposed to permanently exempt
from the class II ban existing inventories of integral skin
products needed to meet the Federal Motor Vehicle Safety Standards
manufactured prior to January 1, 1996.
EPA indicated that the Agency will revisit the sunset provision
for this exemption at a future date if the Agency receives a
request from the public for extending the exemption based on
the unavailability of substitutes.
D. Temporary Exemptions
EPA proposed certain limited exemptions from the statutory
ban on class II substances. Administrative creation of exemptions
from statutory requirements are authorized only in limited
circumstances,
outlined in Alabama Power Co., et al. v. Costle, et al., 636
F. 2d 323 (D.C. Cir 1979). Agencies can create such exemptions
only where necessary based on administrative feasibility or
the de minimis nature of the exemption. EPA proposed providing
a ``grandfather'' exemption for existing inventories, based
on the de minimis rationale, as well as a temporary exemption
for products requiring federal approval for reformulation, based
on administrative feasibility.
EPA proposed exempting existing inventories of products
otherwise
subject to the class II ban based on the de minimis environmental
impact of such an exemption. Many of the products covered by
the class II ban, particularly many of the foam products, release
class II substances either during manufacture or disposal, rather
than during use. Thus, banning the sale of existing inventories
of such products would have a de minimis environmental impact.
While there are also cases where the class II substance is released
in the use of the product, especially with the aerosol products,
EPA stated its conclusion in the NPRM that emissions to the
environment from these products, once manufactured, will be
little or no different from the releases from these products
if removed from commerce and subsequently disposed of.
The proposed exemption would cover all products placed into
initial inventory by December 27, 1993, the date ninety days
after publication of the NPRM. EPA believes that this is adequate
time for manufacturers to alter manufacturing processes to exclude
class II substances. Under the proposal, to continue selling
products after January 1, 1994, the manufacturer or distributor
must be able to show, upon request by EPA, that the product
was in fact manufactured, and thus placed into initial inventory
by December 27, 1993. Shipping forms, lot numbers, manufacturer
date stamps or codes, invoices, or the like, may be used to
identify the date the product was placed into initial inventory.
EPA believes these types of records are normally kept by
manufacturers
and distributors of products affected by this rulemaking and
that no additional recordkeeping will be required by this rule.
In addition, EPA proposed exempting from the class II ban
those products requiring federal approval prior to reformulation,
provided that manufacturers of such products have made a request
of the appropriate federal agency for such federal approval
prior to January 1, 1994. Alabama Power authorizes creation
of administrative exemptions where necessary, based on
administrative
feasibility.
EPA proposed allowing manufacturers that require federal
approval for reformulations of a product or approval of a specific
substitute product to continue to sell or distribute, or offer
for sale or distribution in interstate commerce, their existing
formulations until ninety days after receiving all appropriate
federal agency approvals, providing the request for approval
from the appropriate federal agency had been submitted by January
1, 1994. EPA proposed allowing manufacturers that are ultimately
denied federal approval for reformulations of a product or approval
of a specific substitute product to continue to sell or distribute,
or offer for sale or distribution in interstate commerce, their
existing formulations until thirty days after receiving notice
of denial from the federal agency. EPA felt this shorter period
was appropriate since in this case, manufacturers need merely
cease using class II substances rather than altering manufacturing
processes to accommodate the new formulation or substitute.
Consistent with the temporary exemption for products placed
in initial inventory prior to December 27, 1993, products put
into initial inventory by the manufacturer, before thirty days
after receipt of denial or ninety days after receiving an approval
by the appropriate federal agency, would be grandfathered. To
continue selling after January 1, 1994, the manufacturer or
distributor would be required to show, upon request, that the
pertinent federal approvals were applied for prior to January
1, 1994 and that the product was in fact manufactured by ninety
days following the receipt of all appropriate federal approvals
or thirty days following denial.
E. Ban on Sale or Distribution in Interstate Commerce
EPA proposed that the term ``interstate commerce'' in section
610(d) refer to the product's entire distribution chain up to
and including the point of sale to the ultimate consumer. Under
section 610, the statute prohibits all sale, distribution, or
offer of sale or distribution in interstate commerce after the
January 1, 1994 effective date. As such, all sales and distribution
of banned products, including retail sales, would be prohibited
as of January 1, 1994, as required by the Act, unless otherwise
specified.
F. Scope of Interstate Commerce
EPA's interpretation of interstate commerce does not cover
the sale, distribution, or offer of sale or distribution, of
nonessential products within the boundaries of a single state.
Thus, EPA believes 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 completely manufactured, distributed,
and sold without ever crossing state lines. However, the Agency
stated in the NPRM that to avoid coverage by this proposed
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 also that all of
the raw materials, 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. The sale of the affected product includes every sale
up to and including the sale to the ultimate consumer, and all
these sales must take place without ever crossing a state line
for the product to be considered not part of interstate commerce.
G. Resale of Used Products
EPA proposed an interpretation of sale, distribution, or
offer of sale or distribution in interstate commerce which does
not cover the resale of used products. Resale of used products
means a sale, by a person after a period of use other than
demonstration
use. 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 and boats.
Restricting the resale of such used durable goods before the
end of their productive lifetimes would provide little, if any,
environmental benefit. 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 believe 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 recognized in the
NPRM that in the case of durable consumer goods such as boats
and motor vehicles, resale of the product to additional consumers
may occur after the original sale of the new product to the
ultimate consumer after some period of use by the original ultimate
consumer. In such cases, EPA proposed to not consider the resale
of these banned products to constitute sale, distribution, or
offer of sale or distribution, of a new product in interstate
commerce for the purposes of this rulemaking.
H. Imports and Exports
The NPRM states that EPA believes that both the import of
any product for sale or distribution within the United States,
or the sale or distribution of any product intended for ultimate
export from the United States, are acts of interstate commerce
within the meaning of section 610 and would, accordingly, be
affected by this regulation. The import or export of products
affected by today's rulemaking would be subject to the same
restrictions as the sale, distribution, or offer of sale or
distribution of these products in the United States. EPA did
not by these provisions intend to extend its authority to regulate
foreign commerce. The class II ban applies only to interstate
commerce and EPA intended in the NPRM to regulate imports and
exports only while they were in interstate commerce. EPA did
not intend to regulate the foreign commerce aspects of imports
and exports. EPA intended only that the manufacture of products
for ultimate export and the distribution of imported products
be subject to these rules to the extent they fell within interstate
commerce as defined in section II.F., above.
I. The Use of Affected Products Purchased Before the Effective
Date of the Ban
The NPRM discusses EPA's confirmation in the final class
I ban rulemaking that nonessential products purchased before
the effective date of the ban may still be used, and that the
Agency is not regulating the use of nonessential products, merely
their sale and distribution as authorized by the statutory language
(58 FR 4782). Consistent with that rulemaking, the class II
ban proposal states that EPA is not regulating the use of affected
products, only the sale and distribution of affected products
in interstate commerce.
J. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
Section 610(b)(2) required EPA to ban the sale of
chlorofluorocarbon-
containing cleaning fluids for electronic and photographic
equipment
to non-commercial users. EPA estimates that non-commercial sales
of such fluids represent a small fraction of the total use of
these products. Nevertheless, the statute specifically required
EPA to ban the sale of these products containing CFCs for non-
commercial use. Consequently, EPA proposed, and the final rule
included, a ban on the sale, distribution, or offer of sale
or distribution of these products to non-commercial users. As
a result of this statutory mandate, there is no remaining
chlorofluorocarbon
which legally could be substituted for class II substances in
non-commercial cleaning fluids for electronic and photographic
equipment.
EPA stated in the class II ban NPRM that aerosol cleaning
fluids for electronic and photographic equipment sold to commercial
users are often used at work benches in industrial situations.
Flammability is a concern in such environments. In addition,
these cleaning fluids may be used on electronic or electrical
equipment that must be serviced while electrical current is
turned on. Therefore, the Agency believes flammability is a
concern associated with the use of aerosol cleaning fluids for
electronic and photographic equipment. Accordingly, EPA proposed
providing an exemption for the sale of aerosol cleaning fluids
for electronic and photographic equipment containing class II
substances to commercial users.
In the class I ban, EPA required sellers and distributors
to post signs stating that sale, distribution, or offer of sale
or distribution, in interstate commerce of these products to
non-commercial users is prohibited and that purchasers of these
products must provide verification that they are commercial
users. In addition, sellers and distributors were required to
verify that purchasers of these products are commercial users.
Purchasers could fulfill this requirement by presenting any
number of existing documents generally issued to commercial
entities as a condition for conducting business. 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. These
documents could include a federal employer identification number,
a state tax exemption number, a local business license number
and a government contract number. EPA believes that these
requirements
impose the least burden while still meeting the statutory
requirement
to prevent non-commercial users from purchasing CFC-containing
cleaning fluids.
EPA stated in the NPRM that the statutory language in section
610(d) compels the Agency to adopt similar verification provisions
with regard to cleaning fluids containing class II substances.
Consequently, the Agency proposed verification and public notice
requirements similar to those in the class I ban final rule.
Included in the proposal was an option allowing the sellers
and distributors to use one sign to provide the proper
notification.
III. Summary of Major Public Comments
A public hearing on the proposed rule was held on October
12, 1993. Nine groups presented oral comments on the NPRM. A
transcript of the hearing is contained in Docket A-93-20.
EPA received a total of 91 written comments on the proposed
rule during the forty-five day public comment period, and these
comments are also contained in Docket A-20-93. Many commenters
expressed support for EPA's definition of ``insulating products''
while a few commenters suggested EPA modify the definition.
Many comments requested that EPA re-examine the use of HCFC-
22 in aerosols, specifically in mold release agents, document
preservation sprays and spinnerette lubricant/cleaning sprays.
A number of commenters requested that EPA consider providing
an exemption for the solvent and propellant uses of class II
substances in document preservation sprays. Several commenters
put forth requests to exempt class II substances in certain
circumstances based on worker safety and flammability concerns,
where the only legal alternatives are halons. Finally, a few
commenters discussed the benefits of EPA's proposed grandfathering
provisions.
IV. Response to Comments
EPA received several comments indicating that there were
errors in the published version of the regulatory text. EPA
has reviewed and updated that text.
A. Aerosol Products and Pressurized Dispensers
EPA received one comment indicating that the Agency should
clarify the definition of ``other pressurized dispenser.'' The
commenter was particularly concerned with how the Agency would
treat a container used solely to transport class II substances.
In the class I ban final rules and in the class II ban NPRM,
EPA discussed bulk containers used to transport class I and
class II substances, including small containers of CFC-12 used
in the automotive industry. EPA would like to clarify that these
are bulk containers, used solely to transport the controlled
substance, and are not considered to be pressurized dispensers
for the purposes of section 610.
Product which may contain only a class I or class II substance
or mixture of class I and class II substances and other substances,
are subject to the bans promulgated under section 610. Products
are different from bulk containers in that to perform its function,
products are directly applied from the container in which they
are sold. Furthermore, products to be added into a system, such
as an air conditioner, that contain a class I or class II
substance,
but that do not function as part of the use system (e.g. some
function other than cooling in an air-conditioner) are considered
products, not bulk containers. One example of this is a leak
repair product that is transferred into an air-conditioning
system under pressure provided by a refrigerant. The primary
function of the product is to repair a leak rather than to charge
the system with refrigerant. Another example is a duster, whose
inherent function is to remove dust through forced air. The
controlled substance is used as pressure to force the air from
the container. A bulk refrigerant, on the other hand, is
transferred
under its own pressure and provides refrigerant qualities to
the system to which it is transferred. Furthermore, in the final
regulations implementing section 606, published on December
10, 1993, EPA clearly delineates between manufactured products
and bulk containers used to transport substances.
EPA received one comment from a manufacturer that employs
an alternative technology in the production of various aerosol
products and pressurized dispensers. This commenter stated that
a patent-pending process is available that allows the manufacturing
of formulations without ozone-depleting substances. The commenter
indicated that this technology is being widely used and considered
in many fields and provides a safe nonflammable alternative
to class I and class II substances. EPA applauds the efforts
of this commenter to develop a technology that does not contribute
to stratospheric ozone depletion. As the phaseout dates for
class I and class II substances approaches EPA is pleased to
learn that alternatives will be available. However, the commenter
did not provide enough information to allow EPA to judge where
this new technology can effectively replace the need for EPA
to provide specific exceptions or exemptions to the statutory
ban. Therefore, EPA cannot consider this technology as an
alternative
sufficient to allow the Agency to alter any of the exemptions
in this final rulemaking.
EPA received comments concerning the relationship between
the class I and class II bans and the Significant New Alternatives
Program (SNAP) being promulgated under section 612 of the Act.
The SNAP final rule will provide industries with lists of
``acceptable''
and ``unacceptable'' alternatives for use as substitutes for
ozone-depleting substances. In addition, the use of acceptable
alternatives may be subject to other restrictions promulgated
under Title VI, as well as other federal, state, and local
requirements.
EPA received several comments describing the positive and
negative aspects of various alternatives that could be used
or considered in different applications. Many commenters described
factors that should be considered where a given alternative
is considered. EPA has reviewed this information.
1. Products Using Class II Substances As Replacements For Class
I Substances That Include Methyl Chloroform, Carbon Tetrachloride
or Halons
EPA has authority to consider granting exceptions for products
containing one or more class II substances, where the only
available
alternative for the class II substance(s) is legally available
class I substances and the use of the class II substance is
essential based on flammability or worker safety concerns. This
section discusses cases where the only alternative within class
I may be methyl chloroform, carbon tetrachloride or halons.
Although EPA was not aware of any situations justifying these
exemptions, EPA indicated in the NPRM that a manufacturer,
distributor,
or retailer of a product containing one or more class II substances
could request, through the public comment process, an exception
from EPA, citing methyl chloroform, carbon tetrachloride or
halons as the only legal alternative(s). EPA stated in the NPRM
that the Agency would consider such requests received during
the comment period, but may require significant proof that such
claims were not attempts to circumvent the intent of the ban.
Moreover, EPA would consider the similarity of the class I
substances
and the corresponding class II alternatives to ensure the
substances
have parallel uses.
a. Wasp and hornet sprays. Just prior to issuing the NPRM,
EPA learned of a product, a pesticide used to kill wasps and
hornets nesting near high-voltage power lines, that may require
an exception based on the solvent use of HCFC-141b in a new
formulation, replacing the current formulation that uses methyl
chloroform. EPA did not have enough information to determine
what if any substitutes, other than methyl chloroform, exist,
and whether or not worker safety or flammability concerns affect
the use of alternatives in these products. Furthermore, EPA
did not have confirmation that an application for formulations
using HCFC-141b had been submitted under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) for these HCFC formulations.
Therefore, the Agency did not propose to exempt the use of class
II substances in wasp and hornet sprays used near high-voltage
power lines. However, EPA requested comment on worker safety
or flammability concerns regarding the manufacturing or use
of these products, as well as comment on current and potential
uses of class II substances in these products. In addition,
EPA requested comment on whether the only available alternative
to the use of a class II substance in wasp and hornet pesticides
used near high-voltage power lines is the use of a class I
substance.
EPA received two comments addressing this issue. One comment,
from the manufacturer of wasp and hornets sprays, stated that
many electric utility employees use wasp and hornet sprays while
on ladders to work on high-tension power equipment. Sometimes
these employees are fifty feet or more above ground. Solvent
alternatives to class I and class II substances in these
insecticides
are flammable. Therefore, without using a class I or class II
substance as the solvent, the utility worker would either be
unable to destroy the wasps or hornets, or would be forced to
spray a flammable product near a potentially charged line.
Recently,
an application for registration under FIFRA for a wasp and hornet
spray formulation including HCFC-141b was submitted to EPA.
EPA agrees with the concerns raised by this commenter. The class
I ban exempted methyl chloroform. Therefore, manufacturers could
continue to use methyl chloroform until methyl chloroform is
no longer available. Based on this information, EPA believes
it is appropriate, and in this action is providing an exemption
for the sale and distribution of products using HCFC-141b as
a solvent to replace methyl chloroform in wasp and hornet sprays
used by private and public utility employees near high-tension
power lines. EPA is further requiring that the seller of a wasp
and hornet spray containing an HCFC as a solvent provide
notification
of the requirements to ensure that the exempted wasp and hornet
spray is sold either to an organization that employs personnel
who work near high-tension power lines and requires use of an
HCFC-pesticide, or that the seller is selling the product only
for eventual resale to such an organization. This notification
will take the form of written notification of the requirements
prior to any sale that occurs after January 1, 1994, by including
this information on sales brochures, order forms, invoices and
the like. The seller must notify the purchaser that ``it is
a violation of federal law to sell or distribute wasp and hornet
sprays containing hydrochlorofluorocarbons as solvents to anyone,
except for use near high-tension power lines where no other
alternative except a class I substance is available. The penalty
for violating this prohibition can be up to $25,000 per unit
sold.'' EPA understands that at least one major manufacturer
intends to label this product to accurately reflect this
requirement.
The Agency would like to clarify that this exemption is only
for the sale and distribution of the product used near high-
tension power lines; other consumer wasp and hornet sprays,
including those used near electrical lines and cables, as well
as other pesticides, are in no way affected by this exemption.
A second commenter suggested that EPA provide an exemption
for HCFC-22 used as a propellant in wasp and hornet sprays because
HCFC-22 is non-flammable and non-conductive. In the NPRM, EPA
only discussed an exemption based on the use of methyl chloroform.
EPA believes that while the solvent properties of methyl chloroform
are similar to HCFC-141b, EPA does not believe this situation
is true for HCFC-22. HCFC-22 is generally considered to be a
propellant, while methyl chloroform is considered a solvent.
Therefore, EPA does not believe that HCFC-22 in this product
would be considered a substitute for methyl chloroform. It is
possible that the commenter was making this request for an
exemption
based on the propellant uses of a different class I substance,
such as CFC-12; however, the commenter did not provide such
information, nor did the commenter demonstrate that the legal
use of a class I substance is the only alternative for the use
of HCFC-22 for this product. EPA believes there are adequate
propellant substitutes available for use in wasp and hornet
sprays. Therefore, EPA is not providing an exemption for the
use of HCFC-22 in this product.
b. Hydraulic Brake Cleaners. EPA requested comments on the
need to provide an exemption for the solvent uses of hydraulic
brake cleaners. While the NPRM proposed an exemption for the
solvent uses of class II substances in lubricants, coatings,
or cleaning fluids used to clean electrical and electronic
equipment,
and for lubricants, coatings or cleaning fluids used to maintain
aircraft, EPA did not propose an exemption for all hydraulic
equipment. EPA received several comments concerning this issue.
One commenter stated that it favored an exemption for hydraulic
parts cleaning products for aircraft maintenance. EPA would
like to clarify that the proposed exemption for the solvent
uses of class II substances in aircraft maintenance was in no
way limited to non-hydraulic applications, but applied to all
aircraft maintenance cleaning including hydraulic applications.
A second commenter requested that EPA include marine and
automotive cleaning as well as aircraft cleaning. The commenter
manufactured a product using methyl chloroform. The commenter's
new formulation includes a class II substance. The commenter
stated that automotive cleaning applications, particularly in
the area of brake cleaning, require a nonflammable product because
the work is often performed in close proximity to high-temperature
exhaust systems. The commenter states that nonflammable, safe
solvents are necessary where there is an extremely high heat
potential and the environment is enclosed. Potentially the products
could be used near open flames and electrical equipment. While
EPA agrees that a safe working environment is essential, EPA
does not agree that an exemption for the solvent uses of class
II substances is necessary for these products. The automotive
maintenance industry employs a variety of flammable products
and therefore, routinely provides an appropriate working
environment
for the use of these products. Moreover, there are many flammable
brake cleaners regularly used by both professionals and do-it-
yourselfers. In addition, nonflammable products that do not
contain class II substances are available. These products may
contain perchloroethylene and may therefore require particular
worker safety conditions. However, EPA believes that these products
represent adequate substitutes already accepted by the marketplace.
Based on this information, EPA does not believe that the worker
safety or flammability concerns raised by this commenter justify
the requested exemption. Therefore, this final action will not
provide an exemption for hydraulic brake cleaners, other than
those used for aircraft maintenance as proposed.
c. Portable fire extinguishers. While in the NPRM, EPA discussed
the legal authority to consider exemptions where the only available
alternative for the class II substance(s) is halons, EPA did
not propose any such exemptions. Prior to the issuance of the
NPRM, EPA did not receive any comments regarding the substitution
of HCFCs for halons as it relates to this rulemaking. During
EPA's public meeting held to discuss the upcoming ban with affected
stakeholders on March 29, 1993, EPA discussed the definition
of the terms ``aerosol products'' and ``pressurized dispensers''
as well as the requirements under section 610(d). While
representatives
of the fire equipment manufacturing industry and chemical suppliers
to that industry were present at this meeting, no information
regarding the use of HCFCs as halon replacements or the potential
need for exemptions was brought to the Agency's attention.
Therefore,
EPA did not propose any exemptions for halon replacements. However,
during the public comment period, EPA received several comments
requesting exemptions for HCFCs used as halon replacements.
In the Significant New Alternatives Program (SNAP) NPRM (58
FR 28093) being promulgated under section 612 of the Act, EPA
discusses fire extinguishing streaming agents and total flooding
agents. Halocarbons represent only a portion of the agents
available
for fire protection, and in fact appear to be a decreasing portion
as more and more users are choosing to install ``alternative''
systems. However, a number of HCFCs have been suggested as halon
replacements, including HCFC-22, HCFC-123 and HCFC-124 for both
streaming and total flooding applications. Commenters claimed
that there are particular situations where the only legal
alternative
would be the use of either a halon or a class II substance.
Two comments regarding the treatment of halon replacements
indicated that the Agency should not consider any fire
extinguishing
equipment under the class II ban rulemaking. Another commenter
suggested that EPA should add an exemption under this rule for
``all pressurized fire extinguishers and fire extinguishing
systems containing class II substances.'' This commenter also
further stated that EPA treated fire extinguishing systems
separately
during the class I rulemaking and that the Agency should therefore
take a consistent approach. EPA disagrees with both of these
commenters. Fire extinguishing equipment was not treated separately
or exempted under the class I ban rulemaking, but rather halons
were not included in the class I ban. Portable fire extinguishers
using CFCs were in fact banned.
Another commenter, also referring to the class I rulemaking,
notes that in the final rule EPA defines chlorofluorocarbons
to include Class I, Group I and III substances, but not Group
II substances (halons). Therefore, while CFC-fire extinguishing
equipment was banned, halon-fire extinguishing equipment was
exempted. Furthermore, the commenter reviewed the preamble
discussion
for the proposed SNAP rule, published in the Federal Register
on May 12, 1993 (58 FR 28093), suggesting that EPA consider
a method to provide a consistent and complementary approach
under this rule. The commenter also stated that it had expended
substantial effort and resources in the search for, and development
of, an environmentally acceptable halon replacement. A prohibition
on the general use of class II substances as halon replacements
in fire protection applications could result in deeming this
commenter's efforts as useless. EPA agrees that halons were
not included in the class I ban. EPA only banned the use of
CFCs in aerosol products or pressurized dispensers. EPA further
agrees that an outright prohibition on the use of class II
substances
could have an adverse economic impact on this industry; however,
EPA does not have authority under section 610 to consider economic
impacts. EPA may exempt products based only on flammability
and worker safety concerns where a legal class I alternative
exists, which would be the case with halon replacements, as
they were not covered in the class I ban. Cases such as these
are discussed below.
A third commenter stated that EPA is incorrect in its
interpretation
of section 610(d). Referring to the requirements under the 1978
ban on aerosol propellants and under other sections of Title
VI, the commenter states that ``the ban on CFC and HCFC use
in aerosol products was clearly intended to cover its use as
an aerosol propellant.'' The commenter further stated that
``although
HCFCs used as fire protection agents would in most cases be
used in `pressurized dispensers,' the HCFC is not the propellant,
but is instead the active ingredient * * * (the commenter does
not believe) that section 610(d) was intended to cover the use
of HCFCs as active ingredients in essential products such as
fire protection equipment or extinguishers.'' EPA disagrees
with this commenter. Congress in no way restricted consideration
under this rulemaking to only the use of class II substances
as propellants. Rather, Congress banned all class II uses of
aerosols and pressurized dispensers unless qualifying for an
exclusion. Moreover, the authority for all Title VI rulemakings
is wholly separate in mandate and intent from the 1978 aerosol
propellant ban.
A fourth commenter states that all fire extinguishers are
pressurized to some extent, but that the Agency should consider
categorizing them as equivalent to bulk containers. This commenter
believes that the NPRM is in conflict with the SNAP NPRM and
that banning the use of HCFCs in fire extinguishers would cause
great economic hardship. EPA recognizes the need to consider
decisions made under the SNAP rulemaking; however, SNAP
determinations
in no way restrict EPA authority under section 610. EPA believes
that all portable fire extinguishers are pressurized dispensers,
since pressure is necessary to propel the fire extinguishant
and such extinguishant is dispensed directly from the fire
extinguisher
via a self-contained apparatus. Moreover, fire extinguishers
are products, not bulk containers transporting chemicals.
EPA would like to clarify that all aerosol products and
pressurized
dispensers, regardless of their use, are encompassed under the
statutory language that appears in section 610(d). Moreover,
the use of all HCFCs, whether as propellants, solvents, or active
ingredients are covered by the self-executing statutory ban.
Congress in no way limited the types of products to be banned
or the types of uses for HCFCs to be banned. Furthermore, while
EPA had authority to consider which products would be banned
under the rulemaking for the class I ban, the Act clearly bans
aerosol products and pressurized dispensers containing HCFCs.
Therefore, if EPA had not chosen to promulgate regulations at
this time, on January 1, 1994, all aerosol products and pressurized
dispensers, including fire extinguishing equipment, would have
been automatically banned regardless of any SNAP determinations.
While EPA does attempt to coordinate decisions made under various
rulemakings, regulations promulgated under section 612 only
determine which replacements are acceptable; however, the use
of class II substances in aerosols and pressurized dispensers
regardless of the application are still subject to the section
610(d) ban. This situation was discussed in various parts of
the SNAP NPRM.
Nevertheless, it has come to EPA's attention that the situation
may not have been thoroughly reviewed in the Class II Nonessential
Products Ban NPRM as it relates to halon alternatives. EPA realizes
that some extinguishants may be appropriate in certain environments
on certain types of fires, whereas others would be appropriate
in different situations. There may be cases where an HCFC is
the only appropriate alternative to halons given the circumstances
of the environment and fire potential.
EPA has authority under section 610(d)(2) to grant exemptions
for the use of HCFCs where the only alternative is the use of
a class I substance, which includes halons. As stated above,
the equipment using streaming agents is consistent with the
definition of an ``aerosol product'' or ``pressurized dispenser''
and therefore subject to this rulemaking. However, EPA recognizes
that total flooding agents contained in total fire suppression
systems used to extinguish fires are different from a portable
device used to extinguish fires. These total flooding systems
differ from an aerosol product or pressurized dispenser in that
total flooding systems are ``systems'' that are completely
installed
and can be triggered to be automatically activated during an
emergency situation. The extinguishant is incorporated into
the system from bulk containers. Such systems thus do not
constitute
a pressurized dispenser or aerosol product within the meaning
of section 610. Portable fire extinguishers, on the other hand,
do constitute a pressurized dispenser, as they provide the product
and dispensing apparatus in a self-contained portable unit.
With this distinction, EPA believes that flooding systems and
fixed automatic extinguishing systems are not included within
the scope of the class II ban.
EPA discusses the Halon 1211 substitutes and alternatives
for streaming applications in the SNAP NPRM. Halocarbon substitutes
on the SNAP Proposed Acceptable list include class I agents
(HBFC-22B1, CFC blends), class II agents (HCFC-22, HCFC-123,
and HCFC-124) and perfluorocarbons (PFCs). Alternative technologies
on the Proposed Acceptable list include dry chemical, carbon
dioxide, water, and foam. Technical constraints restricts the
applicability of several substitutes and alternatives in specific
applications. In addition, due to environmental or health concerns,
SNAP places further use restrictions on some of the substitute
agents, such as restricting their use to non-residential
applications
only. Finally, other regulatory constraints limit the potential
use of certain alternatives, as discussed below.
Regulatory restrictions being promulgated under section 612
may limit the availability of certain ``acceptable'' alternatives
to the use of halons. For example, the SNAP NPRM includes several
use restrictions based on various health and environmental
concerns.
Some restrictions are in keeping with the Climate Change Action
Plan released by the President in October 1993, which directs
EPA to use section 612 to control emissions of global warming
gases.
Other regulatory constraints not fully discussed in the SNAP
NPRM limit the situations in which certain ``acceptable''
alternatives
may be considered. At least one alternative deemed ``acceptable''
under the SNAP NPRM uses CFCs in an application that was clearly
banned in the class I rulemaking. The use of CFCs in portable
fire extinguishers was banned in the class I final rulemaking
and therefore, while the SNAP NPRM proposes that CFCs are
acceptable
alternatives, it is not legal to sell or distribute or offer
for sale or distribution aerosol products or pressurized dispensers
containing CFCs after January 17, 1994, unless specifically
exempted by the class I ban rulemaking. CFCs in this application
were not exempted under the class I ban.
HCFCs could potentially be used in portable fire extinguishing
equipment for both the residential and commercial markets; however,
in residential applications, EPA has determined that there are
alternatives available that can be used effectively to suppress
any fire that may occur. In commercial and industrial applications,
there are situations in which portable fire extinguishers
containing
HCFCs meet the criteria for granting an exemption as set forth
in section 610(d)-the use of the product is deemed essential
as a result of flammability or worker safety concerns and the
only alternative is the use of a class I substance that can
be legally substituted. Therefore, EPA believes that in many
applications, the only alternative to the use of a class II
substance may be the use of a class I substance that can be
legally substituted in fire extinguishing equipment. The reasons
why other substitutes may not be suitable are discussed below.
Non-halocarbon alternatives to Halon 1211 are already in
widespread use in selected commercial applications because of
their effectiveness, and due to the current regulatory climate,
their use has been increasingly adopted wherever possible. However,
unlike Halon 1211, which is gaseous, these non-halocarbon
alternatives
are not ``clean agents'' and may cause secondary damage to the
property being protected. In addition, in many commercial or
industrial applications the types of fires that may occur, the
confined environments in which the fires may exist, and the
kinds of equipment or chemicals that may be involved will limit
the effectiveness of many alternatives in commercial and industrial
use. Therefore, the only alternative to the use of a class II
substance in these situations may be the legal use of a class
I substance (halons).
One alternative, CO2, is adopted most frequently because
it is the only non-halocarbon clean agent and in many applications,
it will not cause any secondary damage. There are, however,
several limitations that restrict its use. When used in confined
spaces, CO2 poses a significant risk of asphyxiation to occupants
and thus, may only be used where sufficient ventilation exists.
CO2 requires six times the weight and storage volume of Halon
1211, and thus is not suitable where weight and storage constraints
are a factor. In addition, there is some controversy about whether
CO2 contributes to thermal shock of electric components.
Furthermore,
CO2 may not be used on Class A fires.
Water and foam are both very effective agents, but cannot
be used on Class C electrical fires since they contribute to
electrical shock hazards. In addition, they may cause significant
secondary damage and thus are not suitable because the
extinguishant
can otherwise irreparably damage that which it is intended to
protect.
Multi-purpose dry chemical is effective on Class A, B, and
C fires, but, like water and foam, can cause considerable secondary
damage to certain equipment and could result in greater health
and environmental damage. For example, if the multi-purpose
dry chemical damaged a critical component on a marine vessel
or aircraft, it could threaten the safety of the crew and
passengers.
Use of water, foam or CO2 on hot metals is limited, as uneven
cooling may lead to warping of costly components.
EPA does not believe a suitable alternative extinguishant
would include a substance that would damage beyond repair the
item the extinguishant is employed to protect. Therefore, EPA
believes that to provide adequate fire protection in some
circumstances,
HCFCs may be the only available alternative to halons that can
provide sufficient protection without creating a human hazard
or irreparable damage from the original threat of flammability.
Such cases might include, but are not limited to the following:
. Certain industrial settings, e.g. chemical/refinery
processing;
. Certain electric utility facilities, e.g. nuclear power
stations;
. Libraries and museums;
. aviation and marine vehicles;
. commercial settings containing types of high value electronic
equipment.
For applications like these, halons or HCFCs may be the only
suitable fire extinguishant to suppress a fire in progress without
further damaging the equipment requiring protection and without
creating a human hazard. The suitability of the agent implies
that an agent is commercially available, that a fire will be
extinguished quickly, and will result in minimum degradation
of the products being protected from the fire. Some HCFCs, because
of their chemical composition, may tend to suppress fires and
reduce explosions in a shorter time and with smaller amounts
of agent than do other alternatives, including some HFCs. The
smaller amount of agents needed result in smaller amounts of
acid gases, thus reducing risks to human health and safety.
In light of this, EPA would consider a class II fire extinguishant
as suitable in those cases where other alternatives are not
commercially available and/or the chemical composition of the
other alterative cannot be shown by accepted fire protection
standards to be efficient in extinguishing fires in the relevant
situations/applications. The selection of agents usually requires
input from a fire protection professional who can assess the
situation and the potential use of alternatives to class I and
class II substances. EPA wishes to clarify that commercial
availability
in this of an alternative in this context does not consider
the relative cost of that alternative or the convenience associated
with its purchase.
The high cost associated with the use of class I and class
II substances will likely influence the decision-making process
whenever other alternatives are suitable and legal. EPA is aware
that an industry infrastructure exists that can aid a commercial
or industrial user in appropriate risk assessment and
determinations
of appropriate fire extinguishants. Furthermore, state and local
fire codes in many cases require that the purchasers of fire
protection equipment comply with widely accepted industry
practices.
The National Fire Protection Association (NFPA) has developed
many standards that the industry regularly relies upon, as well
as guidance on compatibility of certain extinguishants with
certain types of potential fires and environments.
Class II substances may be the only available alternative
for use in water vessels and in both non-commercial and commercial
aircraft. Circumstances that involve the potential use of an
extinguishant in a confined environment, where even limited
damage to equipment may leave the water vessel or aircraft
inoperable,
may limit the feasibility of alternatives to class I and class
II substances.
In light of the above discussion, EPA will exempt from the
class II ban HCFC fire extinguishant alternatives for applications
where HCFCs are the only suitable alternative to halon use other
than alternatives that are subject to other regulatory constraints
that effectively limit their legal use, including the final
SNAP regulations, once promulgated. This includes situations
where a clean agent is necessary to avoid irreparable damage
to an area or the equipment being protected in that area or
where other alternatives can cause a hazard to persons in the
area. Prior to promulgation of the final SNAP rule under section
612, which is anticipated by February 15, 1994, those HCFC fire
extinguishant alternatives found acceptable under the proposed
SNAP regulations will be exempted from the class II ban, where
a determination can be made consistent with industry fire
extinguishant
standards that there are no other acceptable alternatives for
commercial and industrial use that can be substituted for halons.
EPA is requiring that distributors as defined in . 82.62(d)
of portable fire extinguishers must verify that the purchasers
of HCFC portable fire extinguishers are commercial entities
as defined in . 82.62(b) or that the purchaser is the owner
of a water vessel or non-commercial aircraft and that distributors
make a good faith effort to ensure that the HCFC portable fire
extinguisher is being purchased for use in a commercial or
industrial
establishment, or for use in a water vessel (as defined in 33
CFR part 177) or aircraft. In order to meet this requirement,
EPA is requiring that the seller provide written notification
of the requirements of this rule to the purchaser. This
notification
will take the form of a sign clearly posted where the portable
fire extinguishers are displayed for sale. In cases where the
purchaser does not physically come into contact with product
at the point of sale, EPA requires that the seller provide prior
written notification of the restrictions concerning the sale
of HCFC portable fire extinguishers on sales brochures, order
forms, invoices and the like. EPA reviewed the standards developed
by NFPA and has based this requirement on those standards.
The seller must indicate to the purchaser that ``it is a
violation of federal law to sell portable fire extinguishers
containing hydrochlorofluorocarbons to anyone, except for use
in applications where necessary to extinguish fire efficiently
without irreparably damaging the equipment or area being protected
or where the use of other alternatives can cause a hazard to
persons in the area. The penalty for violating this prohibition
can be up to $25,000 per unit sold. Individuals purchasing such
products must present proof of their commercial status in
accordance
with 40 CFR 82.68(a) or of ownership of a marine vessel or boat
as defined in accordance with 40 CFR 82.62(j), or of ownership
of a noncommercial aircraft in accordance with 40 CFR 82.68(k).''
EPA would like to clarify that the servicing of existing
portable fire extinguishers is in no way affected by the class
II ban. If after a discharge, a portable fire extinguisher is
serviced and recharged, where ownership of the recharged product
remains the same (e.g. not sold or distributed in interstate
commerce), the servicing procedure, including recharging, is
not affected by the class II ban.
2. Products Requiring Both Class I and Class II Exemptions
EPA realizes that the class II ban exemptions are integrally
linked to the Class I Nonessential Products Ban. EPA believes
the class I ban and the Act gave sufficient notice to the public,
and through the class I rulemaking process, addressed all of
the comments received by the Agency. EPA realizes that there
are a number of products that do not use class I substances,
but do use class II substances for which no other substitutes
are workable and worker safety or flammability concerns exist.
Some of the manufacturers of these products may not have commented
on the need for a class I exemption, because they were not aware
of the connection between the two bans (e.g. that class II
exemptions
could only be obtained where class I use was legal). Without
a legal class I use, the Agency does not have authority under
section 610(d) to grant exemptions under the class II ban. EPA
proposed considering revisions to the class I ban to provide
exemptions, such that appropriate class II exemptions could
be granted for several products brought to the Agency's attention
prior to the issuance of the NPRM. The Agency requested comment
on the need to revisit the Class I Nonessential Products Ban
through this rulemaking with respect to any other product for
which there is no substitute for class II use other than a class
I use which is no longer legal.
a. Aircraft pesticides. EPA specifically requested comment
on the need to revise the class I ban to provide an exception
for aircraft pesticides, with the intent that the class I
substances
would not actually be used. The class I exception would merely
provide the basis upon which to grant a class II exception,
where no other acceptable alternatives are available. In addition,
EPA requested comment on worker safety or flammability concerns
regarding the use of substitutes for class II substances that
may be used or considered for use in aircraft pesticides.
EPA received comment from the Department of Defense (DOD),
one of the primary users of aircraft pesticides. DOD stated
that a nonflammable product is required in three areas: for
the disinsection of aircraft for potential vectors of disease;
for the treatment of pests aboard naval vessels, particularly
submarines; and for the airlifting of pesticides to military
forces deployed in specific regions. The military uses a formula
with two percent d-phenothrin and requested a temporary exception
for the continued manufacturing and sale of the present
formulations
until suitable substitutes are available. EPA agrees with DOD,
that in many situations a nonflammable pesticide is essential
and should be available for particular uses. EPA's determination
regarding the aircraft pesticide product used by DOD is discussed
below. EPA understands that DOD would be able to use the same
product in all the situations discussed in their comments.
Comments were also submitted by the Air Transport Association
Of America (ATA), representing many air carriers. The ATA stated
that to the best of their knowledge they knew of only one producer
of an aerosol insecticide that meets legal requirements for
safe disinfection of aircraft during flights. Airlines operating
internationally are legally required to abide by the Convention
on International Civil Aviation to which the United States is
a party, and the standards of the International Civil Aviation
Organization. In conformance with recommended practices of the
World Health Organization, aircraft insecticides must be
effectively
dispersed throughout all aircraft compartments after the aircraft
has been closed for departure from the takeoff location. ATA
stated that currently the only available product that meets
all the requirements its members must adhere to contains either
a class I or class II substance. ATA is aware of a new product
that will be available shortly. Therefore, ATA requested that
EPA consider a temporary exemption for this product.
EPA also received comment from a manufacturer who believes
that a solvent recently developed that contains class II substances
would be appropriate for use in aircraft pesticides. This product
would represent a new pesticide, requiring registration under
FIFRA. To the extent of EPA's knowledge, this formulation has
not been submitted for review in accordance with FIFRA.
EPA received comments from two aircraft pesticide manufacturers.
The first commenter stated that overseas flights have always
used fogging insecticides to destroy pests while the plane is
in the air. The commenter stated that there are no alternatives
to the use of a class II substance in these products other than
the use of a class I substance; therefore, EPA should revise
the class I ban to provide the legal authority to consider an
exemption for the use of HCFCs in this product, and then
simultaneously
provide an exemption under the class II ban.
EPA received a comment from a different manufacturer, the
manufacturer that originally raised this issue with EPA. This
manufacturer stated that they did not obtain a class I exemption
because they were in the process of converting to the use of
HCFCs. The manufacturer unsuccessfully tested several possible
HFC formulations. At that point the manufacturer approached
EPA and requested an exemption under the class II ban based
on the need to manufacture a product that could meet the pressure
standards put forth by the Department of Transportation (DOT)
and still meet the flammability requirements put forth by DOD.
However, the manufacturer states that recent findings lead the
manufacturer to believe that a possible substitute that contains
no ozone-depleting substances has been located. This product
will include an element that will decrease the pressure of the
HFC-134a, thus meeting DOT's standards. In order to register
the product under FIFRA, the manufacturer will need to complete
toxicological studies. Tests of this nature often take long
periods of time. This manufacturer notes that they are aware
of another product being used in Australia for aircraft
disinfection;
however, that product is not registered under FIFRA and would
therefore need to complete the same toxicological testing to
be approved for use in the United States.
EPA is pleased to learn that while this manufacturer was
pursuing a potential exemption, the manufacturer continued to
also investigate moving entirely away from class I and class
II substances. In light of the manufacturer's determination
that an alternative might exist, EPA cannot provide an outright
exemption for the use of class II substances in aircraft
pesticides.
EPA recognized in the NPRM that products that require federal
approval prior to using a new reformulation are often subjected
to a lengthy review process. EPA proposed and is today exempting
from the class II ban those products requiring federal approval
prior to reformulation, provided that manufacturers of such
products have made a request of the appropriate federal agency
for such federal approval prior to January 1, 1994. EPA understands
that at least one manufacturer will make the appropriate request
prior to that date. The time frames associated with federal
approval processes represent the amount of time necessary for
the federal agency to conduct a responsible review of the
formulations
and determine the acceptability of the formulation under applicable
statutes and regulations. The federal agencies cannot expedite
their internal processing procedures simply because a formulation
would otherwise be subject to a ban without compromising the
integrity of their own program reviews.
To the best of EPA's knowledge, there is only one manufacturer
that has a product available for use as an airline pesticide
today, and that particular product contains a class I substance.
EPA believes that a replacement product containing class II
substances will be available shortly, following federal approval,
followed by a replacement that contains no ozone-depleting
substances.
Therefore, EPA is establishing a temporary exemption for aircraft
pesticides releasing class I substances to expire upon federal
approvals of any substitute product. EPA would like to clarify
that if the substitute contains HCFCs, and if an application
for an alternative formulation is filed by January 1, 1994,
the use of class II substances will be exempt from the ban in
accordance with . 82.65(b) and (c). Therefore, until the review
process is complete, all aircraft insecticides that have applied
for appropriate federal approvals will be able to legally use
class II substances in their formulations under . 82.65(b).
This exemption will expire after an alternative aircraft pesticide
that does not contain class I or class II substances becomes
available.
b. Dusters. Prior to issuing the NPRM, EPA was contacted
by manufacturers concerned about the availability and economic
feasibility of using substitutes to class II products. In
particular,
manufacturers of dusters and safety sprays had commented on
the possible need for a class I exception based on the
unavailability
and the high cost of alternatives. EPA requested comment on
the need to revise the Class I Nonessential Products Ban to
provide a potential exception for these products. In addition,
EPA requested comment on worker safety or flammability concerns
regarding the use of substitutes for class II substances that
may be used or considered for use in dusters and safety sprays.
Two commenters stated that problems regarding the supply and
availability of substitutes for class I substances were corrected
earlier this year. These commenters were among those that raised
the original concerns with EPA. In addition, one commenter noted
that as a result of the need to reduce the levels of ozone
depletion,
the manufacturer began utilizing flammable propellants in 1989.
The commenter believes that in certain duster and noise horn
applications, flammable propellants are acceptable to the
consumers.
According to the commenter, these flammable products do not
pose an extreme safety hazard. At the same time, non-flammable
products are also available, albeit at a higher price. EPA received
one comment suggesting that the only available substitutes to
class I or class II dusters are hydrocarbons. The commenter
believes that EPA should provide an exemption based on the
increased
risks associated with flammability. EPA disagrees with this
commenter based on the information supplied by the other
commenters,
as outlined above.
EPA is not exempting dusters or safety sprays using class
II substances in this final rule. The first two commenters clearly
state that both flammable and nonflammable alternatives are
currently available. EPA agrees with these commenters, recognizing
that alternatives include HFC-134a and HFC-152a. Therefore,
EPA agrees that there is no need to revise the class I ban with
regard to dusters and safety sprays to facilitate continued
class II use. EPA further notes that numerous other consumer
products are flammable; however, the potential of an accident
often can be greatly minimized by taking prescribed precautions.
Moreover, EPA wishes to clarify that taking economic factors
into account in its exemption determinations is not consistent
with the statutory language in section 610(d).
c. Tire Inflators/tire sealer. EPA received comments from
the manufacturer of tire inflator/sealer products. The commenter
stated that it is within EPA's discretion to reopen the review
period for consideration of additional ``essential use'' exemption
applications for products containing or manufactured with class
I ozone-depleting substances. The commenter stated that the
alternatives to the use of a class I or class II substance for
this product are either hydrocarbons or HFCs. The commenter
further stated that the hydrocarbons are flammable and are volatile
organic compounds that are precursors to formation of tropospheric
ozone. The commenter stated that additional federal controls
on hydrocarbons in consumer products potentially include use
prohibitions in the future. The commenter noted that SNAP lists
HCFCs as proposed ``acceptable'' alternatives in the regulations
to be promulgated under section 612. In addition, the commenter
believes that HFC-134a and HFC-152a are currently in short supply
and are significantly more costly than HCFCs.
EPA does not believe that this commenter demonstrated a
compelling
need for EPA to revise the class I ban. As the commenter points
out, alternatives are available. Several tire inflators and
sealants are being sold today that contain hydrocarbons. Used
as advised, precautions can be and are currently taken to prevent
accidents. While future regulations may limit the availability
of hydrocarbons, EPA cannot base its decisions today on what
may happen in the future. Moreover, both HFC substitutes and
not-in-kind substitutes (e.g. changing the tire) represent other
alternatives to tire inflator/tire sealer products. Consideration
of market conditions, including cost of substitutes, is not
within EPA's discretion under section 610(d). Regulations
promulgated
under section 612 merely identify which substances are
``acceptable''
or ``unacceptable'' alternatives; they do not speak to the ban
mandated under section 610(d) and cannot alter its effectiveness.
The use of particular substances in the manufacture of aerosol
or pressurized dispensers is still clearly subject to the class
II ban. As noted above, taking the cost-effectiveness of
substitutes
into account is not consistent with the statutory language in
section 610(d). Therefore, this final action will not include
a reopening of the class I ban to consider the need to provide
exemptions for tire inflator/tire sealer products. EPA will
consider reopening the class I ban in the future should new
regulations limit all available alternatives to class I or class
II use.
The same commenter referred to an exemption under section
610 as an ``essential use'' exemption. EPA would like to clarify
the distinction between exemptions under the nonessential products
bans and essential use exemptions. Exemptions granted under
the class II ban are for continued sale and distribution of
products ozone-depleting substances that are currently produced
and imported in the United States. These domestic regulations
only impact the manufacturers, distributors, retailers and users
of aerosol products, pressurized dispensers and foam products
sold in the United States. On the other hand, under the Montreal
Protocol process, member countries can put forth nominations
for essential use exemptions that would allow for continued
production of ozone-depleting substances after the production
phaseout to be used in an application for which there are no
suitable substitutes. The Parties receive and review these
applications
individually and may decide to grant particular exemption requests.
If the Parties agree that a particular application is essential,
additional production of an ozone-depleting substance will be
authorized for that particular application after the phaseout
has taken effect. The Parties will review essential uses on
a yearly basis to evaluate if the essential use exemptions are
still appropriate. EPA understands that this same commenter
submitted a request for an essential use exemption, but that
the commenter subsequently withdrew the application, since the
commenter's apparent intention was to receive an exemption under
the class I ban rather than the Montreal Protocol.
3. Aerosol Products and Pressurized Dispensers Exempted By The
Class I Ban
The following eleven products were exempted from the class
I ban:
. Medical devices listed in 21 CFR 2.125(e)
. Lubricants for pharmaceutical and tablet manufacture
. Gauze bandage adhesives and adhesive removers
. Topical anesthetic and vapocoolant products
. Solvent uses in lubricants, coatings or cleaning fluids
for electrical or electronic equipment
. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance
. Solvent uses in mold release agents
. Solvent uses in spinnerette lubricant/cleaning sprays
. Plasma etching
. Solvent uses in document preservation sprays
. Solvent uses in red pepper bear repellent sprays
Because of the differing mandates in, and statutory constraints
of, section 610(a)(b) and (c) and section 610(d), EPA did not
propose exemptions for all of these products in the NPRM for
the class II ban; however, in all cases EPA requested comment
on the need for and appropriateness of potential exemptions
for these uses. Comments received by the Agency are discussed
below.
a. Lubricants for pharmaceutical and tablet manufacture.
EPA received one comment regarding a lubricant used in
pharmaceutical
manufacturing. This commenter stated that HCFC-141b has replaced
CFC-113 as the lubricant carrier for the manufacture of hypodermic
needles. The commenter notes that an exemption for HCFC-141b
is consistent with the intent of section 610(d) to allow the
use of HCFCs in medical devices, although in this particular
application the exemption would be for the manufacturing process,
not the product. The commenter indicates its belief that while
such an exemption is not consistent with the statutory language,
it may be consistent with Congressional intent. EPA agrees that
the use of class II substances in the manufacturing of hypodermic
needles is not consistent with the statutory language regarding
the exemption for medical devices. However, EPA believes that
under the class I ban's exemption for lubricants for pharmaceutical
and tablet manufacture, EPA has authority to consider exemptions
under the class II ban for hypodermic needle production, where
the class II substances are used to replace CFC-113 as the only
legally available alternative, and where there is a clear
demonstration
of flammability or worker safety concerns. However, in the absence
of a demonstration of worker safety or flammability concerns
in the production of hypodermic needles, which the commenter
did not submit, the fact that the only legal alternative to
the use of the class II substance is a class I substance, by
itself, is not enough to allow EPA to include an exemption for
the use of lubricant carriers for the manufacture of hypodermic
needles in the final rule. EPA may reconsider an exemption for
this use at a later date if presented with appropriate
documentation.
b. Solvent uses in lubricants, coatings and cleaning fluids
for electrical or electronic equipment. EPA proposed exempting
the solvent uses of class II substances in lubricants, coatings,
and cleaning fluids for electrical or electronic equipment.
EPA received several comments favoring such an exemption. One
commenter stated that the cleaners are often sprayed to ensure
that the electrical contacts are free of dirt and other
contaminants.
In addition, one commenter stated that the only available
substitutes
contain hydrocarbons that pose increased risks associated with
using a flammable product on electronic or electric equipment.
The commenter claims that chemicals used in these cleaners must
be nonflammable, nonconductive, nontoxic, odorless, quick-drying
and effective, because the individuals using them are in very
close proximity to the cleaner spray. Another commenter stated
that in both these applications and in applications associated
with aircraft maintenance discussed below, the products are
used in ``clean-in-place'' situations, often near energized
circuits, welding or soldering equipment, hot motors, engines
or other hot surfaces.
EPA believes that the use of a product near a hot motor does
not necessarily constitute a flammability concern; however,
in cases where the product is used in close proximity to ignition
sources, and where the user cannot provide adequate safety
precautions,
a nonflammable product is essential. Therefore, EPA agrees with
these commenters. This final action adopts the proposed exemption
for the solvent uses of a class II substance in lubricants,
coatings and cleaning fluids for electrical or electronic
equipment.
c. Solvent uses in lubricants, coatings or cleaning fluids
used for aircraft maintenance. EPA received comments concerning
the uses of class II substances in lubricants, coatings or cleaning
fluids used for aircraft maintenance. One commenter stated that
the only known substitute for the use of a class I or class
II substance was a hydrocarbon. A second commenter stated that
while the amount of class II compounds used in aircraft maintenance
activities is low, until environmentally preferable alternatives
become available, the use of class II compounds is necessary.
The commenter stated that the concerns over worker safety and
flammability raised in the NPRM are valid. The materials are
often used inside the aircraft, which acts as a confined space.
It is often difficult to ventilate these spaces, making the
toxicity and flammability of the materials used particularly
critical. As stated above, one commenter that provides products
for both aircraft maintenance and electronic or electrical
equipment
cleaning noted that the products must often be used in ``clean-
in-place'' situations. Several comments indicated that the physical
characteristics of HCFC-141b are similar to CFC-113, exempted
under the class I ban. EPA agrees with the concerns raised by
many commenters. There are worker safety and flammability concerns
that render the legal use of a class I substance as the only
alternative to the solvent uses of HCFCs. Therefore, this final
rulemaking will provide an exemption for the solvent uses of
class II substances in lubricants, coatings, or cleaning fluids
used in aircraft maintenance.
One commenter stated that aircraft maintenance should include
all aircraft uses of the class II substances in aerosol lubricants,
coatings and cleaning fluids because the same materials are
used in manufacturing, flight tests, and in-service maintenance.
EPA agrees that the exemption for the solvent uses of class
II substances in lubricants, coating or cleaning fluids used
for aircraft maintenance covers the use of these products during
manufacturing, flight tests, and in-service maintenance.
d. Solvent uses in mold release agents. EPA received many
comments regarding the uses of class II substances in mold release
agents. All of these commenters supported EPA's proposed exemption
for the solvent uses of class II substances in mold release
agents. One commenter asked that EPA clarify that the use of
HCFC-22 and HCFC-141b in the NPRM were merely examples of potential
formulations for mold release agents. EPA agrees with this
commenter.
The Background Document on Aerosol Products and Pressurized
Dispensers Containing Class II Substances and other information
contained in the Air Docket for this rulemaking (A-93-20) provides
additional information concerning various formulations of mold
release agents.
Several of the comments stated that HCFC-22 was the solvent
in their formulation or that since HCFC-22 has some solvent
characteristics, it should be exempted. Among the characteristics
categorized as ``solvent'' by the commenters were: compatibility
with co-solvents; nonflammability, fast evaporation rate, low
boiling points, and good carrier capacity. One commenter stated
that in order to use dimethyl ether (DME) as a propellant in
mold release agents, the DME must be in solution to avoid
collection
of DME vapor that could collect and ignite. Several commenters
indicated that they use DME to lower the amount of ozone-depleting
substances needed in their mold release agents. One commenter
stated that HCFC-22 dissolves the solvent or similar lubricant
and suppresses the flammability of the mold release agent.
Additionally,
commenters stated that the use of HFC-134a or other like substances
requires that the mold release agent be shaken routinely before
use. If the user neglects to shake the product, the DME vapor
could collect and ignite.
EPA has considered these comments very carefully and disagrees
with many of the commenters. The Agency has previously stated
on several occasions, including in the NPRM for this rulemaking,
that HCFC-22 is generally used as a propellant in aerosol products
and pressurized dispensers. ``Carriers'' and ``dissolvers''
are not necessarily characteristics of solvents. Since many
solvents are flammable, nonflammability is not necessarily a
characteristic of solvents. HCFC-22's quick evaporation rate
leads EPA to question whether the HCFC-22 ever directly reacts
with the molds. While mold release agents are often used at
high temperatures, without an ignition source, the temperatures
are not sufficiently high for DME to become combustible. EPA
is aware of flammable and water-based mold release agents that
are currently available that do not contain ozone-depleting
substances. While HFC-134a may not be appropriate in combination
with DME, EPA believes it is an adequate substitute for other
formulations. However, EPA believes that the HCFC-22 and DME
formulations may represent the only compatible formulation for
particular molds.
In response to the claim that HCFC-22 may act as a solvent,
EPA believes it should nevertheless be categorized as a propellant
wherever it serves that purpose as well. In the final regulations
promulgating the 1978 aerosol propellant ban, FDA stated in
a decision to regulate the use of an ozone-depleting substance
in a particular case, that ``the propellants have other functions,
but many propellants have dual function. As previously explained
in the final rule to require a warning statement, if all
propellants
with dual functions were excluded, many products might be excluded,
or might claim to be excluded * * *. Thus, this products [sic]
is subject to the regulation because of the propellant use of
the chlorofluorocarbon'' (43 FR 11313). Based on this earlier
ruling, EPA believes that it is appropriate to treat
solvent/propellants
as propellants under this rule because EPA concludes that
substitutes
are available. Where HCFC-22 is used as a propellant, its use
generally is banned under the final rule. Furthermore, EPA does
not believe that the commenters have demonstrated when HCFC-
22 in mold release agents is acting solely as a solvent; could
this demonstration be made, such use would be permitted under
the exemption for solvent use where substitutes are not available.
Therefore, HCFC-22 will in most case be banned as a propellant
under this final rulemaking.
However, after careful consideration, EPA believes there
are many cases where the use of HCFC-22 as a propellant may
be essential based on worker safety or flammability concerns
where there are no legal substitutes. EPA believes that some
commenters did sufficiently demonstrate that while there are
many different formulations for mold release agents, there are
cases where the use of HCFC-22 is essential based on worker
safety or flammability concerns. While EPA is limited to
considering
an exemption only where the sole substitute is the legal use
of a class I substance, EPA did propose to revise the class
I ban as necessary where a particular product may not have been
sufficiently considered in that rulemaking.
EPA believes that solvent uses of class I substances were
sufficiently considered; however, propellant functions in this
product may not have been sufficiently considered. There are
a wide variety of molds that require differing formulations
of mold release agents in order to be compatible. In the case
of mold release agents, EPA believes there are cases where the
only substitute to HCFC-22 is CFC-12 due to worker safety and
flammability concerns. Therefore, through this final action,
EPA will revise the class I ban to provide the legal authority
to consider a class II propellant exemption for mold release
agents using HCFC-22 as a CFC-12 substitute, and will
simultaneously
provide such an exemption under the class II ban. EPA believes
that the industry will choose to continue using class II substances
instead of class I substances, realizing that the revision to
the class I ban was solely performed to provide the required
authority for a class II exemption and the pending phaseout
date for CFCs. The final . 86.66(d)(2)(vii) of the class I ban
is revised to read:
* * * mold release agents used in the production of plastic
and elastomeric materials, which contain CFC-11 or CFC-113 as
a solvent, but which contain no other CFCs, and/or mold release
agents that contain CFC-12 as a propellant, but which contain
no other CFCs.
Based on this action, EPA will simultaneously exempt under
the class II ban the use of HCFC-22 as a propellant in mold
release agents where evidence of good faith efforts to secure
alternatives indicates that, other than CFC-12, there are no
technically feasible alternatives; and the solvent uses of HCFCs
in mold release agents, where a solvent/propellant is to be
considered a propellant. EPA would like to clarify that suitable
alternatives include use of other mold release agent formulations.
The suitability of mold release alternatives in this context
does not consider the relative cost of that alternative or the
convenience associated with its purchase.
EPA will further require that the seller of HCFC mold release
agents provide notification to the purchaser concerning this
restriction on sale of HCFCs where no other alternative is
available.
This notification will take the form of a sign clearly posted
where the HCFC mold release agents are displayed for sale or
written notification of the requirements if the purchaser does
not physically come in contact with a display at the point of
sale. Written notification will be provided prior to the sale
occurring by including the information on sales brochures, order
forms, invoices and the like. The seller must indicate to the
purchaser that ``it is a violation of federal law to sell mold
release agents containing hydrochlorofluorocarbons as propellants
to anyone, except for use in applications where no other
alternative
except a class I substance is available. The penalty for violating
this prohibition can be up to $25,000 per unit sold.''
e. Solvent uses in spinnerette lubricant/cleaning sprays.
EPA received six comments regarding spinnerette lubricant/cleaning
sprays. One commenter stated that EPA should interpret 610(d)(2)(B)
which states that EPA should provide an exemption where ``the
only available alternative to use of a class II substance is
use of a class I substance which legally could be substituted
for such class II substance'' to mean that EPA should not allow
an exception for a class II substance in any situation where
``an alternative other than a class I substance was available.''
Therefore, the commenter believes that EPA should grant an
exemption
for all propellants in spinnerette lubricant/cleaning sprays
because, other than the use of a class I substance (that could
not be legally substituted), there are no alternatives to the
use of a class II substance. EPA strongly disagrees with this
commenter. EPA discussed in the NPRM that the two bans are
integrally
linked. In order to have an exemption to the class I ban, the
only alternative must be the legal use of a class I substance.
When the Clean Act Amendments were developed, clearly class
II substances were viewed as merely interim substitutes for
CFCs and would be available for a limited time after production
of the class I substances ceased. Therefore, Congress appropriately
limited the use of class II substances to situations where EPA
already determined the use of a class I substance was essential,
and where substitutes for ozone depleting substances were still
unavailable. Therefore, EPA does not agree with the commenter's
legal interpretation of section 610(d)(2)(B).
However, commenters stated that there are no available
substitutes
for all class II substances other than a class I substance in
these uses. These commenters believe that there are class II
substances that will be legally substituted for CFC-114 as a
solvent; however, the commenters are concerned about class II
propellants. Some commenters stated that EPA should exempt the
solvents and propellants used as spinnerette lubricant/cleaning
sprays, including HCFC-22, HCFC-142b, and HCFC-141b, noting
that the worker safety and flammability concerns EPA discussed
in the NPRM make it essential that a nonflammable formulation
be used. One commenter believes that to meet worker safety and
fire protection standards, the use of class I or class II
substances
is necessary for both propellants and solvents. All the commenters
believe that sufficient alternatives to the propellant uses
of class II substances, other than class I substances, have
not yet been developed.
EPA agrees that spinnerette lubricants/cleaning sprays require
a safe formulation. EPA is concerned that since these products
are used by employees to wipe the spinnerette faces whenever
a spinning machine is started or whenever a position breaks
during operation, there are serious worker safety concerns.
EPA believes that consistent with the mold release agents situation
described above, EPA has sufficient reason to, through this
final action, revise the class I ban with respect to propellants
and simultaneously revise the class II proposed ban. Again,
EPA believes that the industry will recognize the need to continue
using class II substances instead of class I substances, realizing
that the revision to the class I ban was solely performed to
provide authority to consider an exemption to the class II ban
and the pending phaseout date for CFCs. Therefore, EPA is revising
. 82.66(d)(2)(viii) of the class I ban to read:
Spinnerette lubricant/cleaning sprays used in the production
of synthetic fibers, which contain CFC-114 as a solvent, but
which contain no other CFCs, and/or spinnerette lubricant/cleaning
sprays which contain CFC-12 as a propellant, but which contain
no other CFCs.
Based on this action, EPA will simultaneously exempt the
propellant uses of HCFC-22 and HCFC-142b, in addition to the
solvent uses of class II substances in spinnerette
lubricants/cleaning
fluids under the final class II ban.
f. Document preservation sprays. EPA received thirteen comments
concerning document preservation sprays. Most of the comments
simply asked for an exemption based on the need to continue
using the formulation that they currently purchase or sell.
EPA received a series of comments from the one manufacturer
of such sprays stating various reasons why EPA should provide
an exemption for the use of HCFC-22 and HCFC-141b in their product.
The manufacturer produces both aerosol and non-aerosol products.
The manufacturer distinguishes between mass deacidification
and deacidification by small institutions preserving a few
documents
per year. However, the manufacturer believes that the various
potential not-in-kind substitutes are not always economically
feasible or appropriate for very fragile papers. Originally
documents were dipped into liquid solutions or the solutions
were brushed onto the documents. These methods have various
deficiencies relating to the need to ensure an even coat of
the preserving chemicals. The manufacturer provided information
concerning attempts to use propellants other than class I or
class II substances. Nitrogen has successfully been used in
larger containers; however, due to worker safety concerns involving
improperly closed cylinders, these formulations do not represent
a solution in all cases. DME's solvent properties caused the
product to be too powerful, damaging what it was to preserve.
Hydrocarbons alone or together with ether were evaluated but
were found to be unsuccessful. The manufacturer further states
that the HCFC-22 acts as both solvent and propellant in the
aerosol product. The HCFC-22 is needed to lessen the solvent
strength of HCFC-141b. Without HCFC-22, HCFC-141b would damage
the document instead of preserving it. The manufacturer also
provided EPA with information about the various alternatives
used or considered both domestically and abroad. In every case,
the manufacturer believes that either the product will damage
the paper, will not create an adequate deacidification solution,
or is not workable in every situation.
EPA reviewed these comments and other information gathered
during this rulemaking. EPA believes that in almost every case,
the not-in-kind substitutes are workable alternatives to the
use of HCFC-141b and HCFC-22 in aerosol containers and pressurized
dispensers. The manufacturer who provided extensive comments
on the need for an exemption from the class II ban indicated
that their own not-in-kind substitute was an appropriate
alternative
in many cases. Moveover, the manufacturer indicated that the
not-in-kind alternative provided the added quality of strengthening
the documents. However, as the manufacturer indicated, there
are some situations in which their own substitute will not be
effective. EPA considered the alternative products used both
domestically and abroad. One alternative, involving a reaction
of ammonia and ethylene oxide to form ethanolamine, uses di-
and triethanolamine which are known to form a reaction product
that is carcinogenic. Another alternative uses magnesium
butyltriglycolate
dissolved in either toluene or CFC-113. According to the submitted
comments, initial results indicate that formulation may deface
the documents and may have an unpleasant odor. EPA is aware
of another potential substitute that contains perfluorocarbons
(PFCs). The use of PFCs may be subject to restricts based on
global warming potential and long atmospheric lifetimes under
regulations promulgated under section 612. Moreover, the comments
the Agency has received indicate that the PFC-based product
may not be appropriate for treating thick books, books with
coated or dense paper, or tightly bound books.
EPA believes that in almost every case, either a not-in-kind
substitute or a substitute formulation can be successfully used
for preserving documents. However, EPA does not believe that
all of the alternative formulations have been successfully tested
to determine the degree of worker safety or flammability concerns.
Therefore, EPA agrees that for treating thick books, books with
coated or dense paper, and tightly bound documents, an exemption
for propellant uses under the class II ban is required.
Based on worker safety and flammability concerns associated
with the use of alternatives, and since the only alternative
is the legal use of CFC-113, EPA will provide a solvent exemption
for HCFC-141b. Furthermore, HCFC-22 is being used predominately
as a propellant in document preservation. While it may also
have some limited solvent capabilities in this product, as
discussed
above, solvents/propellants will be considered propellants under
this rulemaking. Therefore, EPA will revise the class I ban
and will today provide simultaneous exemptions under the class
II ban for propellant uses in treating thick books, books with
coated or dense paper, and tightly bound documents. .
82.66(d)(2)(x)
of the class I ban will be revised to read:
* * * document preservation sprays which contain CFC-113
as a solvent, but which contain no other CFCs; and document
preservation sprays which contain CFC-12 as a propellant, but
which contain no other CFCs, and which are used solely on thick
books, books with coated or dense paper and tightly bound
documents.
EPA will provide a simultaneous exemption under the class
II ban for HCFC-22 used as a propellant in document preservation
sprays used solely to preserve thick books, books with coated
or denser paper and tightly bound documents.
B. Foams
1. Definition of ``Plastic Foam Product''
One commenter questioned EPA's definition of a ``plastic
foam product.'' EPA stated in the NPRM that the Agency interprets
the term ``plastic foam product'' to mean any product composed
in whole or in part of material that can be described as ``foam
plastic'' or ``plastic foam.'' The commenter believes that within
the meaning of section 610(d) a plastic foam product should
apply only to products such as cups, containers, and packaging
where the product is wholly or primarily constructed of plastic
foam or derives its essential purpose or functionality from
the foam. The commenter bases this interpretation on the criteria
for nonessentiality put forth in section 610(b). The commenter
further believes that Congress did not explicitly require EPA
to consider the essentiality of the product as it relates to
section 610(d) because that language appears in section 610(b).
EPA strongly disagrees with this commenter. Clearly Congress
intended to ban products that are not wholly or primarily
constructed
of plastic foam or derive purpose or functionality from the
foam itself. If Congress intended to only include the products
suggested by the commenter, section 610(d)(3)(B) would not be
necessary. Certainly an automobile does not derive purpose or
functionality from the foam within the vehicle. Congress would
not need to provide an exemption for foam needed to meet automobile
safety standards if only products that were wholly or primarily
constructed of plastic foam were to be banned. Moreover, Congress
banned these products in their own terms, without requiring
EPA to promulgate regulations. Therefore, since this ban does
not require action on the part of the Agency, Congress could
not foresee an explicit need for this final rulemaking; thus,
it cannot be assumed that the standards put forth in section
610(b) (that require EPA to promulgate regulations) would apply
to this self-executing ban. The section 610(b) criteria apply
to EPA identification of additional nonessential products. They
do not apply to EPA interpretation of the products Congress
identified as nonessential in section 610(d).
EPA received one comment stating that an agency must construe
the statute in a way that is consistent with the underlying
purpose of the statute. (See Batterton v. Francis, 432 U.S.,
416, 425 (1977), and Gelman v. Federal Election Commission,
432 F.2d 939, 943 (D.C. Cir. 1980)). The commenter further stated
that Congress did not intend for Section 610(d) to cause
manufacturers
to switch to CFCs as a foam blowing agent. EPA agrees with this
commenter and believes that where the use of HCFCs are banned,
alternative blowing agents exist, alternative products that
can perform the same function exist, or the product is not
essential
for the functioning of society. EPA has exempted HCFC use from
the ban wherever a legal use of a CFC is the only available
alternative.
2. Definition of ``insulating products''
EPA requested comments on both its proposed definition of
``insulating products'' and potential alternative definitions.
The majority of the commenters supported EPA's proposal to define
``a foam insulation production as any product that is made with
closed cell rigid polyurethane foam, closed cell rigid polystyrene
boardstock foam, and closed cell rigid phenolic foam; and in
addition, pipe insulation made out of closed cell rigid
polyethylene
foam. One commenter stated that the 1989 UNEP Technical Options
Committee issued a report that identified two broad categories-
foam that has significant thermal insulating properties and
foam that does not. The report concludes that the three types
of foams that have significant thermal insulating properties
are closed cell rigid polyurethane foam, closed cell rigid
polystyrene
foam and closed cell rigid phenolic foam. As EPA stated in the
NPRM, EPA based its decision on how to define which products
were insulation products on work completed by the same UNEP
Committee. The commenter further stated that there are compelling
policy reasons for using a definition based on foam type rather
than on perceived end-use. The commenter believes that under
an all end-use approach, EPA may need to evaluate thousands
of individual products containing foam produced with HCFCs to
determine whether the foam in those products was serving an
insulating function. EPA agrees that if the Agency were to require
a review of every end-use, such a process would be both time-
consuming and burdensome for both the Agency and industry.
One commenter suggested that EPA should expand its proposed
exemption for existing inventories to become the basis for
exempting
all flotation foam or other uses of exempted products. The
commenter
believes that the de minimis standard in the Alabama Power decision
should be applied to all types of non-insulating applications
of closed cell rigid polyurethane, polystyrene, and phenolic
foam. The commenter noted that in the NPRM, EPA identifies
flotation
foam as the largest non-insulating application of closed cell
polyurethane and that the impact of using HCFCs in all the non-
insulating applications of polyurethane would be insignificant.
EPA agrees that the use of insulating foam products for non-
insulating applications will have an overall insignificant impact
on stratospheric ozone when considering all the domestic and
international actions being taken in their entirety. However,
EPA does not believe that this commenter has sufficiently
demonstrated
how the acknowledged continued use of an insulating foam product
in non-insulating applications is consistent with the de minimis
standard within the meaning of the Alabama Power decision. EPA
believes that the statute clearly bans the sale and distribution
of foam that does not meet the criteria for the two statutory
exemptions; however, the statute does not regulate the use of
such exempted products.
A few commenters stated that they use closed cell rigid
polyurethane
foam, at least in part, to protect against noise and vibration.
EPA stated in the NPRM that Webster's Dictionary defines to
insulate as ``to separate from conducting bodies by means of
nonconductors so as to prevent transfer of electricity, heat,
or sound.'' EPA suggested that this could be the basis for an
alternative definition of insulating foam. However, since these
comments expressed support for the proposed definition, EPA
does not believe that these commenters were indicating that
EPA should consider promulgating an alternative definition.
Many commenters stated that EPA's proposed definition would
be less burdensome for industry to comply with and for the Agency
to enforce, than any alternative definition. Several commenters
were particularly concerned with the increased burden an end-
use approach would create. A few commenters were not convinced
that they would be able to identify which products were banned
and which were exempted if a total end-use approach was included
in the final rule. EPA agrees with these commenters. The Agency
recognizes the need to consider the ability of industry to
recognize
which products are subject to the ban.
One commenter stated that EPA's proposed definition gives
the Agency the discretion to add other products or categories
where it can be sufficiently demonstrated that the foam product
is used principally for foam insulation purposes. EPA agrees
with this commenter. Several commenters suggested that EPA consider
specific products or categories. EPA received several comments
asking the Agency to broaden its definition to include other
products or types of foam and a few comments asking EPA to consider
a more narrow approach to exclude products. These comments are
discussed in detail below.
a. Closed cell rigid polyurethane foam. EPA received many
comments regarding the inclusion or exclusion of non-insulating
applications under EPA's proposed definition. Many of these
comments relate to the use of a closed cell rigid polyurethane
foam in various applications. The comments will be discussed
according to the foam's non-insulating application.
i. Foam used as flotation foam. The largest non-insulating
application of closed cell polyurethane foam is as marine foam
used in the manufacture of certain types of boats. The U.S.
Coast Guard estimates that there are approximately 3,000 small
volume boat builders, who produce anywhere from less than ten
boats to several hundred boats annually, representing twenty-
five percent of the recreational boats manufactured in the United
States annually. The U.S. Coast Guard believes that to date,
only a few of the small volume builders have experimented with
non-CFC/non-HCFC blowing systems.
EPA received twenty-three comments that directly address
the current uses of closed cell polyurethane foam in marine
flotation applications, especially for boats that are under
twenty feet in length. Several comments referred to U.S. Coast
Guard regulations that require minimum flotation standards for
all boats under twenty feet in length and to standards put forth
by the American Boat and Yacht Council. A few comments requested
that EPA specifically consider the need for HCFC foams in order
to meet the U.S. Coast Guard standards. While EPA believes it
is important for the manufacturers of boats under twenty feet
to provide adequate flotation by meeting the U.S. Coast Guard
standards, EPA cannot provide an exemption for flotation foam
based on those regulations. EPA's only authority is to exempt
insulating foams, and EPA has concluded that flotation foam
is not thermal insulation foam within the meaning of section
610(d)(3).
U.S. Coast Guard regulations (33 CFR 183.101, subpart F)
require that boats less than 26 feet in length meet certain
flotation standards. While many small boat manufacturers currently
use CFC- or HCFC-blown foam as both structural and flotation
material in the manufacture of their products to comply with
these regulations, these U.S. Coast Guard standards are
performance-
based and do not specify the use of any particular product.
Such a broad exemption for all flotation foams would in no way
be consistent with the statutory language in section 610(d).
The statute specifically states that EPA will exempt certain
foam products ``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.''
EPA believes that if Congress intended for the Agency to also
consider U.S. Coast Guard standards, language to that effect
would have been written into the statute. Furthermore, while
the EPA is providing a temporary exemption for products requiring
federal approvals before reformulating a product, EPA does not
believe there are any U.S. Coast Guard regulations that require
a manufacturer to receive approval to use a new formulation
prior to use.
EPA received one comment from a foam manufacturer who indicated
that many manufacturers believed that foam used for flotation
purposes would be considered nonessential for purposes of the
class II ban. The commenter further stated that during the last
several years the manufacturer has been developing suitable
alternatives. The manufacturer stated that such products have
been developed and would add only approximately $10 to the price
of the boat. The commenter encouraged EPA to take a position
that would foster the use of this new technology, constrained
only by the time needed by the commenter to prove the product's
suitability to the marine flotation industry. The manufacturer
suggested an approach similar to the sunset provision provided
for certain foam products needed to meet automotive safety
standards.
EPA applauds the efforts of this manufacturer. EPA's research
indicates that there are currently boats on the market today
that do not use HCFCs in their foam blowing process. However,
EPA is not given authority under the statute to consider any
time-based exemptions except in the case of foam needed to meet
Federal Motor Vehicle Safety Standards where EPA may determine
when other substitutes will be available to meet safety standards.
With respect to foam, EPA has no authority to create exemptions
based on the availability of substitutes in other areas. The
statute exempts all foam insulation without any clarifications;
however, the statute exempts foam needed to meet Federal Motor
Vehicle Safety Standards where no adequate substitute is
practicable.
Once substitutes are available to meet those standards, HCFCs
are no longer required. Similar language is not contained in
the exemption for foam insulation. Therefore, while the Agency
agrees with the need to encourage industry to move away from
HCFCs, EPA does not believe it can regulate such a move without
revising its definition of what is an ``insulating product.''
The Agency does not believe this to be appropriate under the
statutory language.
Several comments referred to polyurethane foam's ability
to provide structural integrity, to provide sound insulation,
to provide cushioning for fuel tanks, to insulate against cold
water temperatures, and other functions the foam can perform
for watercraft. One commenter additionally stated that in cases
where the boat may be a year-round home, not exempting its use
in boats, while exempting the use of closed cell rigid polyurethane
used for thermal insulation in a traditional house, would be
arbitrary. EPA believes that the boating industry does not
primarily
choose to use closed cell rigid polyurethane foam for its thermal
capabilities; however, EPA agrees that it would be arbitrary
to not allow its use as a thermal insulator in a structure that
may act as a year-round home. EPA states in the NPRM that the
Agency does not believe it has authority to regulate the actual
use of a product that was exempted from the ban based on its
characterization as a thermal insulating foam (in the case of
closed cell rigid polyurethane foam), even in individual cases
where the Agency believes that the product may not primarily
be used for the thermal insulating qualities upon which EPA
based the exemption.
A number of manufacturers reported dissatisfaction with non-
CFC and non-HCFC blowing agents. One commenter stated that while
HFC-134a has passed the U.S. Coast Guard's testing requirements,
the industry has had difficulty with water absorption, rendering
questions about the integrity of HFC-134a blown foam. In one
case, the foam absorbed one pound of water per cubic foot. HFC-
152a is gaseous at room temperature and is flammable. One comment
stated that the use of HFC-152a would require special equipment,
temperature-controlled storage and new safety precautions. The
commenter further stated that HFC-152a would not be cost-effective.
Several commenters discussed water-blown foams, stating that
many questions concerning its performance were still outstanding.
One commenter discussed the possible use of hydrocarbons such
as cyclohexane and pentane, raising issues about safety and
storage of flammable blowing agents, and the need to provide
specialized employee training and supervision.
EPA understands that some boat manufacturers are hesitant
about switching to alternative blowing agents. However, EPA
believes that while many alternatives may require additional
management controls, workable solutions to the use of ozone-
depleting chemicals do exist. Furthermore, one of the most
promising
alternatives, the use of HFC-134a and water in combination,
was specifically omitted by commenters. EPA does recognize that
flotation foam serves as an important safety feature for many
small watercraft and also that the use of closed cell polyurethane
foam serves as a structural element. While EPA does not believe
that the manufacturers of these boats are primarily choosing
to use closed cell rigid polyurethane in order to provide thermal
insulation, under this final action, manufacturers of boats
will be able to continue using HCFCs in closed cell rigid
polyurethane
used for the manufacturing of their products, because the final
rule exempts all closed cell rigid polyurethane under the
definition
of thermal insulating foam regardless of the ultimate use of
such thermal insulating foams.
EPA received one comment stating the boats manufactured with
HCFCs should not be required to be labeled. EPA wishes to clarify
that at this time, the Agency has not promulgated regulations
requiring products containing HCFCs to be labeled. However,
the Administrator has the authority to promulgate such regulations
in the future, under section 611 of the Act.
ii. Taxidermy. EPA received seven comments concerning the
uses of polyurethane foam in the production of mannikin forms.
Most of the commenters stated that the only proven alternative
blowing agent, cyclohexane, would increase workplace health
hazards significantly. One commenter stated that allowing the
continued use of an HCFC-blown foam by taxidermists is inconsistent
with the intent of Congress in developing this statute. While
EPA agrees that the use of HCFC-blown foam by taxidermists would
otherwise be nonessential within the meaning of section 610(d),
and despite the fact that EPA believes that with the proper
precautions, alternative blowing agents can be used safely,
the foam used falls within one of the three UNEP categories
of thermal insulating foam and is thus exempted under this final
rule. Section 610(d)(3)(A) specifically exempts thermal insulation
products, regardless of how those products are ultimately used.
EPA does not believe it has the ability to practically regulate
the use of all exempted products.
iii. Aerosol polyurethane foam. EPA received one comment
requesting an exemption for aerosol polyurethane foam, also
known as one compound foam. EPA has previously discussed that,
in the final class I ban, aerosol polyurethane foam is a closed-
cell rigid polyurethane product. Aerosol polyurethane is used
by builders and 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. EPA
stated that aerosol polyurethane foam would be treated as a
foam and not as an aerosol product. Therefore, aerosol polyurethane
foam products are included in the definition of foam insulation
and exempted from the ban.
b. Closed cell rigid polystyrene boardstock foam. EPA received
two comments regarding the use of closed cell rigid polystyrene
boardstock foams. One commenter stated that while they have
made a long and diligent search for an environmentally acceptable
substitute for the uses of polystyrene for a non-insulating
application, they have not yet been successful. The commenter
stated that as soon as an alternative has been located, closed
cell rigid polystyrene boardstock foam will no longer be used
in their application. As stated above, EPA cannot practically
regulate the use of an exempted product; however, EPA is pleased
to learn that legal users of HCFC-blown foam will continue to
investigate alternatives to non-insulating uses.
EPA received a second comment requesting that EPA clarify
a possible inconsistency between the UNEP documents and the
NPRM. EPA does not believe such an inconsistency exists. Both
the Agency and UNEP documents discuss various types of foam
products by category and often according to use. The UNEP documents
reflect a similar structure. EPA believes that the rule and
the accompanying Background Documents properly identify the
types of foam exempted under the ban.
c. Closed cell rigid polystyrene sheet foam. EPA received
three comments regarding closed cell rigid polystyrene sheet
foam. The commenter stated that closed cell rigid extruded
polystyrene
sheet foam should be added to EPA's definition for insulating
products based on its uses at certain thicknesses. A second
commenter stated that their products are used as an underlayment
when putting new siding on an existing home or other structure,
as insulation and waterproofing protection for perimeter concrete
and masonry walls, and as an underlayment when resurfacing flat
roofs. The commenter noted that these products have an ``R value''
(rated resistance to heat flow used as a measure of insulating
capacity) and suggested that EPA should exempt closed cell
polystyrene
sheet foam in fanfold form with a facing material. EPA disagrees
with these commenters. Extruded polystyrene foam sheet is primarily
manufactured for food service and food packaging products.
Traditionally,
halocarbons have been attractive blowing agents for these products;
however, hydrocarbon blowing agents and HFCs are among the
alternatives.
Many manufacturers, particularly those in the food service
industry,
have made great strides to eliminate their use of halocarbon
blowing agents. Furthermore, the R value cited by two manufacturers
ranges from 1.0 to 1.5. EPA does not believe that a product
with those low R values can provide meaningful thermal insulating
qualities. EPA believes that in general, these products are
used to provide moisture resistance and a smooth surface, not
as thermal insulation product. Therefore these products are
not consistent with EPA's definition of an insulating foam product.
Consequently, this final action will not expand the definition
of a foam insulation product to include closed cell rigid
polystyrene
sheet foam or closed cell polystyrene sheet foam. . .
d. Closed cell polyethylene foam. EPA received six comments
concerning polyethylene foam products. These comments dealt
specifically with two different polyethylene foam products:
backer rods and pipe wrap. Each product is discussed individually.
i. Backer rods. Two commenters believe that EPA should expand
its definition of foam insulating products to include backer
rods made with polyethylene foam because the backer rods have
``significant'' thermal insulating properties. One commenter
stated that the use of hydrocarbon blowing agents instead of
HCFCs presents unreasonable risks to human health. Commenters
disagreed with the Agency's proposal to exclude backer rods
from the definition of insulating foam products. One commenter
stated that the statutory language and legislative history support
a broader definition that would ``indisputably'' include backer
rods. The commenter further believes that under the proposed
definition of foam insulation products, backer rods should be
exempt from the ban because of their thermal insulating
capabilities.
The commenter believes that the Agency's failure to propose
including backer rods is not consistent with either the 1991
UNEP Flexible and Rigid Foams Technical Options Report, produced
under the auspices of the United Nations Environmental Programme
(UNEP) or the Background Document on Foam Products Made with
Class II Substances, drafted as a background document to accompany
this rulemaking. EPA reviewed these documents to confirm the
commenter's statements. EPA would like to clarify that the 1991
UNEP Flexible and Rigid Foams Technical Options Report clearly
categorizes polyethylene foam as ``rigid packaging foam.'' The
chart on p. 6 of the May 1993 Background Document on Foam Products
Made with Class II Substances, listing principal foam types
and applications, does not list thermal insulation as an
application
for closed cell polyethylene foam. Furthermore, on p. 21, the
Background Document states that polyethylene foam is ``used
primarily for packaging.'' The Background Document does state
that in some applications, thermal insulation is among the
desirable
properties; however, the Background Document indicates that
these applications are either in addition to the primary packaging
functions (e.g. packaging military equipment such as missiles)
or in pipe wrap (as discussed below).
One commenter stated that excluding polyethylene backer rods
conflicts with the Internal Revenue Service (IRS) regulations.
According to the commenter, IRS regulations specifically identify
backer rods a type of rigid foam insulation. As EPA stated in
the NPRM, the IRS defined ``rigid foam'' as any closed cell
polymeric foam (whether or not rigid) in which chlorofluorocarbons
are used to fill voids within the polymer. The IRS definition
of foam insulation is markedly different from the one proposed
by EPA, in part because they were written with different statutory
mandates and different implementation goals in mind. The IRS
definition does indicate that Congress intended to single out
foam products on the basis of their thermal insulation properties,
in establishing the excise tax.{4} However, EPA's mandate calls
for the Agency to exempt only ``foam insulation products.''
Many non-insulating products contain some incidental insulating
characteristics, but could not be considered foam insulation
products. EPA firmly believes this is the case with polyethylene
backer rods. The information submitted to EPA indicates that
at best, backer rods still have low R values. Moreover, the
primary function of backer rods used in the construction of
buildings is to provide moisture protection.
³ {4} If this commenter intended for EPA to adopt the
³IRS definition in its entirety, for this rulemaking,
³EPA wishes to point out that the IRS definition of
rigid
³foam insulation only considers foam blown with CFCs and
³would result in no exemption for any foam insulation
³product containing HCFCs unless they contained CFCs as
³well.
One commenter stated that no effective substitutes for
polyethylene
foam backer rods are available for use in expansion joints.
The commenter further believes that there are no blowing agents
that can be effectively used to produce the backer rods and
provide thermal capability. A second commenter stated that at
considerable expense, they converted their manufacturing extrusion
processes to non-HCFC alternatives. The commenter commended
EPA for not including backer rods in the proposed definition.
The commenter stated that backer rods are not used by the
construction
industry as thermal insulators. The function of backer rods
is to fill the void in wall joints and seams for the application
of sealants. Furthermore, the commenter does not believe it
is necessary to use ozone-depleting substances to manufacture
backer rods. According to this commenter, the backer rods
manufactured
with hydrocarbon blowing agents (e.g. isobutane) are currently
sold and used throughout the United States and the world. As
discussed above, EPA believes the thermal capability is a secondary
function for backer rods and is pleased to know that alternative
blowing agents are successfully being used. Therefore, this
final action will not broaden the definition of a foam insulation
product to include backer rods.
ii. Pipe wrap. EPA received three comments concerning
polyethylene
pipe wrap. One commenter, a polyethylene manufacturer, stated
that at considerable expense, the manufacturer converted its
extrusion processes to non-HCFC alternatives. The commenter
strongly disagreed with the proposed inclusion of closed cell
polyethylene pipe wrap within the definition of foam insulation
product. The commenter believes that including pipe wrap in
the proposed definition may result in adverse environmental
impacts. Furthermore, the commenter believes that EPA should
rely on the research of the UNEP. UNEP does not include any
polyethylene products in the categories described as thermal
insulators. The commenter stated that they manufacture a comparable
product without the use of ozone-depleting substances. The
commenter
stated that arguments that HCFCs used as blowing agents allow
for a better thermal insulating material are incorrect. The
commenter has been using hydrocarbons to meet the ``toughest
thermal insulation specifications.'' In addition, the commenter
stated that after a period of time the blowing agents are replaced
by air in the finished products. EPA applauds these efforts
to move away from HCFC use in thermal insulating uses. However,
section 610(d) clearly exempts all foam insulating products,
and thus EPA must provide exemptions for all products that clearly
meet the definition of thermal foam insulation products.
One commenter raised concerns about the ability to use
hydrocarbons
safely. The commenter referred to the proposed SNAP regulations
being promulgated under Section 612. The commenter points out
that EPA states in the SNAP NPRM that the use of hydrocarbons
have possible dangers. ``Conversion to using hydrocarbons may
entail significant capital investments in order to ensure worker
safety fire hazards'' (58 FR 28123). EPA would like to clarify
that the SNAP NPRM does propose hydrocarbon blowing agents as
an acceptable alternative for all polyolefin foams. In many
industrial processes various safety precautions are necessary.
One commenter stated that arguments surrounding the inability
to use hydrocarbon blowing agents safely are groundless. The
commenter stated that assuming reasonable safety precautions
are undertaken, hydrocarbons can easily be used safely. EPA
agrees that, if reasonable and adequate safety precautions are
taken, hydrocarbons can be used safely in the production of
polyolefin foam products.
Two commenters are concerned about EPA's approach in the
case of pipe wrap. Both commenters believe the Agency should
consider all polyethylene products together, one indicating
that they all should be banned, the other believing they all
should be exempted. Concerns about enforcement were raised.
EPA chose to take a category-based approach in the other three
exempted sectors, because an overwhelming majority of products
produced with those types of foams are primarily used for
insulation.
That approach was also consistent with UNEP. In the NPRM, EPA
raised serious concerns about how to enforce an end-use definition
that would require the review of a tremendous number of products.
Furthermore, the Agency felt that using an approach consistent
with UNEP was most likely the intent of Congress. However, EPA
proposed to add one additional product based on what the Agency
believed were convincing reasons to consider a slight variation
to the UNEP approach. EPA does not believe any other polyethylene
product is used primarily for its thermal capability. In fact,
EPA believes in all other cases, any thermal capability is
incidental.
The particular shape of pipe wrap, which increases its R value,
and its primary insulating use, added to EPA's belief that it
should be considered an insulating product. Moreover, from an
enforcement perspective, adding one end-use product did not
create a burden equal to that created by the potential of a
total end-use regulatory regime.
One commenter was concerned about including only pipe wrap
because manufacturers of various polyethylene end-use products,
including pipe wrap, may be forced to convert to alternative
blowing agents regardless of the inclusion of pipe wrap in EPA's
definition. EPA believes that conversions away from ozone-depleting
blowing agents is consistent with the intent of Title VI in
its entirety. Regardless of this rulemaking, manufacturers will
need to convert in the near-term to alternatives.
One commenter stated that some of the shapes they manufacture
are cylindrical in design and are perfectly suitable for use
as pipe wrap while other shapes clearly are not. The commenter
raised concerns about judging what can be sold and what cannot.
EPA understands these concerns. Accordingly, EPA will modify
the NPRM's language in this final rulemaking to read: ``* *
* closed cell rigid polyethylene foam when such foam is suitable
in shape, thickness and design to be used in a product that
provides thermal insulation around pipes used in heating, plumbing,
refrigeration, or industrial process systems.'' For the purposes
of this rulemaking, suitability in this instance, refers to
the size, shape, and thickness of the polyethylene products.
Products that are cylindrical and hollow in shape, sized properly
for use with pipes, and with a thickness appropriate for insulating
pipes will be exempt. EPA hopes that manufacturers will make
good faith efforts to ensure that the products manufactured
with class II substances will be used in the exempted application.
However, as stated above, under section 610 the Agency cannot
practically regulate how all insulating products are used.
e. Inomer foam. EPA received one comment from the manufacturer
of inomer foam. The commenter indicated that this type of foam
is a member of the polyolefin family. The commenter manufacturers
inomer foam with an integral skin to fabricate ``insulating
safety related products.'' The commenter stated that manufactured
products include pipe insulation, rigid flotation foam for buoys,
foam flotation collars, skier safety products, wiper seals for
storage tanks, and seating surfaces for ski resort lift seats.
The commenter stated that hydrocarbons had been considered only
to a limited extent due to concerns raised by the manufacturer's
insurance carrier. The commenter asked EPA to provide an exemption
for inomer foam whether or not the foam is used for insulating
purposes. The polyolefin foam family includes polyethylene and
polypropylene. EPA understands that inomer foam is an enhanced
form of polyethylene foam that includes zinc metallic ions to
provide additional structural integrity, bonding, and durability.
Since inomer foam is actually an enhanced form of polyethylene,
inomer pipe insulation will be considered foam insulation product
within the meaning of section 610(d)(3)(A); however, no other
foam products manufactured with inomer foam will be considered
insulating products. Under the final rules, all inomer foam
that is suitable for use as pipe wrap will be exempt from the
class II ban.
f. Polyvinyl chloride. EPA received one comment concerning
the use of class II substances in the production of extruded
polyvinyl chloride (PVC) foam. The commenter stated that PVC
foam is used for gasket and sealant products, available in a
variety of shapes and sizes, used in refrigeration, construction,
automotive and other applications ``where thermal insulating
and low moisture absorption properties are essential.'' The
commenter further stated that alternative blowing agents are
actively being investigated and have been successful for at
least half of this manufacturer's products. The commenter requested
that PVC foam be considered an insulating foam product by this
final action. EPA does not believe PVC foam is used primarily
as thermal insulation. Whatever thermal characteristics PVC
products may contain, EPA believes these are incidental. The
class I ban briefly discusses PVC foam (58 FR 4778), stating
that although both PVC 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 for the class I ban because the 1991
UNEP report indicates that CFCs were never used in the production
of either expanded polystyrene or polyvinyl chloride.'' EPA
did reserve the right to revise the class I ban to specifically
ban either expanded polystyrene or polyvinyl chloride if EPA
learned CFCs were being used in the manufacturing of those
products.
EPA does not believe PVC foam is used as thermal insulation.
Therefore, EPA is not revising the definition of a foam insulating
product under this final rulemaking to include products produced
with PVC foam.
3. Foam Needed To Meet Motor Vehicle Safety Standards
EPA received three comments concerning the proposed provision
to allow the use of class II substances in the production of
integral skin foam used to meet Federal Motor Vehicle Safety
Standards, sunsetting on January 1, 1996. One commenter agreed
that EPA has authority to sunset the exemption for integral
skin foam products needed to meet Federal Motor Vehicle Safety
Standards; however, the commenter did not believe that EPA should
sunset the exemption at this time. The commenter stated that
the non-HCFC products have not yet completed safety testing
and factories are not yet retooled for using the alternatives.
EPA discussed in the NPRM that the January 1, 1996 sunset date
was chosen based on information that alternatives will most
likely be able to complete safety testing and become available
before that date. If the Agency receives sufficient information
indicating that by January 1, 1996, alternatives will not be
available, EPA will consider revising that date. At this time,
EPA believes that alternatives will be available by January
1, 1996. However, the Administrator may reconsider the date
for sunsetting this provision at a later date.
One commenter stated that EPA does not have authority to
provide a sunset provision under the exemption. The commenter
further stated that since each model year is planned in advance,
eliminating the exemption in 1996 will deprive manufacturers
of the time needed to find adequate substitutes. EPA disagrees
with this commenter. The statute only calls for an exception
to the ban ``where no adequate substitute substances (other
than a class I or class II substance) are practicable for
effectively
meeting such Standards.'' The statutory language obligates EPA
to consider integral skin, rigid, or semi-rigid foam. EPA
determined
that at this time, rigid and semi-rigid foam products do not
require an exception; only integral skin requires an exception.
Furthermore, the statute clearly states that the exception should
only apply ``where no adequate substitute substances'' can meet
the standards. As noted in the NPRM, water-blown foam will be
available shortly, and HFC-134a will be available soon thereafter.
Therefore, EPA believes that once these alternatives are available,
there will be no need for a continuing exception because integral
skin products manufactured with class II substances will no
longer meet the statute's criteria under section 610(d)(3)(B),
since alternatives will be effectively able to meet the safety
standards.
One commenter stated that integral skin foams present long-
term storage problems. According to this commenter, many automobile
manufacturers are employing a just-in-time inventory system.
Storage of integral skin foam presents certain difficulties.
If HCFCs will not be available to produce integral skin foam
replacement parts, the manufacturers may make life-time buys
of particular products. The commenter believes that changing
the production processes to compensate for different shrinkage
rates for foams blown with alternatives could be costly and
provide little environmental benefit because only a limited
number of replacement parts will be sold. EPA disagrees with
this commenter. Where the Agency can reasonably reduce the use
of ozone-depleting substances, EPA is providing an environmental
benefit. Moreover, the statute states that EPA will provide
an exception ``where no adequate substitute substance (other
than a class I or class II substance) is practicable for
effectively
meeting such Standards.'' As EPA discussed in the NPRM, the
Federal Motor Vehicle Safety Standards are, for the most part,
performance standards. The use of particular materials is generally
not specified in the standards in 49 CFR part 571 affected by
this rulemaking. EPA stated in the NPRM that industry sources
had indicated that alternative blowing agents, including water-
blown foam and HFC-134a blown foam, will be available to meet
the performance standards shortly. This commenter did not disagree
with the future ability of the alternatives to meet the safety
standards. Once alternatives are available, integral skin products
will no longer meet the statutory criteria to receive an exception
under section 610(d)(3)(B). Manufacturers would be able to use
the alternative blowing agents to manufacture replacement parts
rather than make life-time buys of integral skin products.
Therefore,
EPA is not revising the provision to exempt integral skin products
needed to meet Federal Motor Vehicle Safety Standards to include
replacement parts produced after January 1, 1996. Replacement
parts placed into initial inventory before January 1, 1996 are
exempt under the terms of the final rules (see . 82.65(a)).
EPA will consider revisiting the sunset provision for this
exception
at a future date if the Agency receives a request from the public
for extending the exception and if subsequent investigation
by EPA determines that adequate substitutes will not be available
by the January 1, 1996 date. The Agency will consider extending
the exception for an additional period of time as appropriate,
if necessary to allow development of adequate substitutes.
A second commenter requested that EPA broaden the provision
for integral skin applications to include all instrument panels,
armrest, and bolsters in all motorized vehicles. The commenter
stated that integral skin purchasers seek long-term product
stability. The commenter believes that Congress did not intend
to selectively protect the operators and passengers of motor
vehicles and not include the operators of trucks, boats, motorized
wheelchairs and agricultural tractors; and suggests that Congress
intended the definition of ``safety'' to include all motorized
modes of transportation. EPA disagrees with this commenter.
If Congress intended for the Agency to consider other
transportation
safety standards, Congress could have easily stated that EPA
should consider all safety standards promulgated by the Department
of Transportation. However, Congress referred specifically to
``motor vehicle safety'' and thereby to a set of regulations
that have been promulgated under Section 103 of the National
Traffic and Motor Vehicle Safety Act of 1966. Section 103
authorized
the National Highway Traffic Safety Administration (NHTSA) to
promulgate Federal Motor Vehicle Safety Standards, which have
subsequently been published in 49 CFR part 571, and which are
specifically mentioned in section 610(d)(3)(B). Consequently,
EPA proposed and in this final action is applying the statutory
ban on the sale, distribution, or offer of sale or distribution
in interstate commerce to all foam components used in motor
vehicles, except those made out of integral skin foam and those
which qualify as foam insulation products as defined in . 82.62(h),
effective January 1, 1994. EPA is exempting integral skin foam
made with HCFCs used to meet the appropriate Federal Motor Vehicle
Safety Standards promulgated under 49 CFR part 571, under the
provisions of section 610(d)(3)(B) from the class II ban on
plastic foam products until January 1, 1996. At that time, the
exception for HCFC-blown integral skin foam will ``sunset.''
In addition, EPA is exempting existing inventories of integral
skin motor vehicle safety products manufactured and placed into
initial inventory prior to January 1, 1996.
4. Use Of a Class II Substance As A Startup Gas in Foam Production
EPA received one comment concerning the use of class II
substances
as a startup gas in the production of extruded polyethylene
foams. The commenter indicated that potential nonflammable blowing
agents are not suitable for the manufacturing of extruded
polyethylene
foam. The commenter stated that the use of flammable blowing
agents during startup conditions presents many difficulties.
The foam lines are not at stable operating conditions and friction
generates static electricity. The commenter stated that EPA
should consider providing an exception for the incidental uses
of class II substances as a startup blowing agent where the
foam product is pelletized to eliminate most of the class II
substance. The commenter urged EPA to allow for the reuse of
the startup foam (blown with class II substances) to encourage
recycling, because the amount of the class II substance in an
end product would likely be de minimis. Section 610(d) relates
only to the sale and distribution of products in interstate
commerce. Section 610(d) does not regulate the use of blowing
agents as startup gases. However, the statute does clearly regulate
the potential sale and distribution of the products that are
produced with the startup gas used during the startup process.
The Agency understands that generally startup gas is not intended
to be incorporated into the finished product; however, when
a startup gas is no longer being used, it is not immediately
eliminated from the stream of production. There may be instances
where both an insignificant amount of the startup gas and the
blowing agent actually appear in the same end product. Under
that scenario, EPA agrees that the class II substance in the
startup gas should be viewed as de minimis in nature and products
produced with it are not covered by this final action. Therefore,
polyethylene products that are not manufactured with class II
substances, where class II substances are used solely as startup
gases, and therefore may contain incidental amounts of class
II substances are not subject to the ban.
C. Temporary Exemptions
1. Existing Inventories
EPA received several comments regarding EPA's proposal to
grandfather existing inventories. One commenter stated that
there is a proven technology for the destruction of all the
products containing or manufactured with a class II substance-
incineration. Incineration units can be used to safely destroy
products that will be banned under section 610(d). The commenter
stated that there are three facilities that utilize high
temperature
incineration to reduce all HCFCs to carbon dioxide, water, and
halogenated salts. The commenter further stated that trial data
for HCFC-22 indicates a rate greater than 99.99 percent for
the destruction removal efficiency. In addition, the commenter
believes that there are sufficient facilities to handle the
demand to destroy all existing inventories being grandfathered
by this action. EPA applauds the efforts of this commenter;
however, EPA is concerned about the lack of wide availability
of such facilities. EPA does not have enough information to
determine if there are any other organizations that can provide
such a service and whether sufficient incineration capacity
exists in wide enough distribution throughout the country to
allow incineration of all existing inventories otherwise covered
by the class II ban. Furthermore, EPA has no means for ensuring
that existing inventories would be sent to appropriate incineration
facilities. Manufacturers could use another method for destroying
existing inventories that would result in the release of HCFCs
directly to the atmosphere. Moreover, EPA's proposed exemptions
were based on the de minimis rationale for existing inventories.
EPA believes that a review of the amounts of ozone-depleting
substances allowed to be emitted based on the NPRM is still
de minimis and thus, that the exemption is still warranted.
EPA received comment concerning an extension of the date
for placing grandfathered products into initial inventory. One
commenter believes that EPA should exempt products placed into
initial inventories one hundred and eighty days after the date
of publication of the final rule. Another comment suggested
that the Agency change the date that products need to be placed
into initial inventory from December 27, 1993, to December 31,
1993. The commenter believes that for the ease of compliance
and enforcement, consistency with the federal-approval exemption,
and conformance with the statute, EPA should switch the date.
EPA would like to clarify that the exemption for inventories
was based on a de minimis rationale; on the other hand, the
federal-approval exemption was based on the ability of the federal
entities to perform sufficient reviews by January 1, 1994. Ninety
days between the date of publication and this exemption's effective
date was based on research involving the length of time needed
to convert facilities. Modifying that date by four days provides
no significant additional environmental impacts. Since
grandfathering
is not called for by the statute, strict conformance is not
an issue. EPA agrees that December 31, 1993, provides a more
reasonable date for the manufacturers' compliance and provides
an added benefit from an enforcement perspective. EPA had no
way of knowing on which day the NPRM would be published and
therefore could not predict the exact effective date of this
exemption. In light of the proximity of the grandfathering date
and the effective date of the ban, EPA believes it is reasonable
to revise the exemption to grandfather all products placed into
initial inventory by the manufacturers by December 31, 1993.
One commenter stated that EPA should exempt all products
placed into inventories before March 27, 1994. The commenter
lists the following reasons: legal authority under the Alabama
Power decision; failure would cause economic hardship for certain
manufacturers and distributors; these products would still meet
the de minimis test; and it would not cause an adverse effect
on stratospheric ozone. A second commenter stated that an extension
should be considered because some products require more than
ninety days to complete manufacturing. EPA agrees that not every
product affected by this ban can be manufactured during the
ninety-day time-frame; however, EPA disagrees with these
commenters'
concerns regarding extensions for the grandfathering provision.
EPA believes that the Alabama Power decision does provide authority
to grandfather certain existing inventories. However, EPA does
not believe that within the meaning of section 610(d) there
is any basis for considering exempting inventories created beyond
the effective date of the self-executing ban. The Agency believes
that such an exemption would only encourage additional production
of nonessential products. The emissions of HCFCs would not be
considered de minimis in nature because the additionally
manufactured
products would contribute increased emissions to the stratospheric
ozone problem. The crux of EPA's reasoning for providing any
exemption for existing inventories was that emissions from products
already in existence were de minimis. EPA is aware that during
the ninety days provided in the NPRM for alterations of
manufacturing
processes, some manufacturers may have continued to produce
nonessential products that would otherwise have been banned
and that will now be exempted; however, that was not the intention
of the exemption. The exemption was designed to allow manufacturers
the time necessary to convert their facilities from the time
they became aware that their products would likely be banned.
A further extension would solely allow for continued manufacturing
which clearly contradicts Congressional intent. Furthermore,
with a self-effectuating statutory ban date of January 1, 1994,
EPA believes it cannot legally provide grandfathering for banned
products manufactured beyond that date.
One commenter stated that they faced many hurdles regarding
their ability to replace HCFCs in replacement parts for their
products. The commenter cited difficulties with storing large
inventories of certain products, particularly integral skin
products for use in meeting automobile safety standards. The
commenter requested that EPA allow the sale of replacement parts
used to meet these safety standards and made with HCFCs on a
permanent basis because the rule should only apply to new products.
EPA disagrees with this commenter. Nothing in the statutory
language indicates that section 610(d) should not apply to
replacement
parts which in and of themselves are new products. The statute
clearly states that the ban applies to aerosol products,
pressurized
dispensers, and foam products manufactured with, or containing
a class II substance. The sale of a replacement part into
interstate
commerce is equivalent to the sale of any other product. A
replacement
part is a product and is sold as a new product when introduced
into interstate commerce. The exemptions that EPA has offered
for existing inventories, including the exemption for integral
skin foams used to meet motor vehicle safety standards, are
aimed at protecting the distributor and retailer. If EPA had
not included the exemptions, integral skin products manufactured
with or containing a class II substance not yet sold to the
ultimate consumer (e.g. the user of the end product) would be
banned from further sale and distribution in interstate commerce
on January 1, 1996, regardless of where that product was in
the chain of distribution, even where the product had been placed
into initial inventory prior to January 1, 1996.
If manufacturers are concerned about their ability to convert
the manufacturing of all components and replacement parts that
will be banned after January 1, 1996, the manufacturer may choose
to make a lifetime buy of the replacement parts prior to January
1, 1996. Replacement parts and components placed into initial
inventory prior to January 1, 1996 will not be subject to the
ban.
In many cases producers that have already reformulated their
production processes to comply with the class II ban may have
inventory either at their facilities or still in the distribution
chain. The Food Service and Packaging Institute estimates that
the capital expenditures to retrofit equipment have cost their
industry more than $10 million. This figure reportedly does
not portray the disruption to the product lines and manpower
that occurred during the conversion. These manufacturers fully
supported EPA's grandfathering provision because it would alleviate
the additional burden of recalling stock already sold by the
manufacturers and destroying these products.
EPA received one comment from a manufacturer of food service
disposable products indicating that, to comply with the class
II ban, the manufacturer spent more that $3 million to retrofit
their facilities. The conversion away from HCFCs has already
been completed. However, the comment points out that hundreds
of cases of products that were produced with HCFCs are still
awaiting sale in the manufacturer's warehouses, and may still
be on the shelves of their customers. This commenter described
the grandfather provision as crucial due to the nature of their
business.
One commenter, a manufacturer of dusters and noise horns,
stated that more than 85 percent of their product line was produced
with CFC-12 as recently as 1989. The commenter described their
conversion as both ``painful'' and ``costly,'' yet recognizes
the benefits to society. In 1988, the manufacturer used 1,250,000
pounds of class I substances. In 1992, the same manufacturer
had reduced the ODP-weighted use of class I and class II substances
to 57,000 pounds. This amount will be further reduced for 1993
to approximately 25,000 to 30,000 pounds. Reductions were
necessary,
in meeting the February 16, 1993, ban on the sale and distribution
of products releasing CFCs specifically referred to in the statute
and meeting the January 17, 1994, effective date for products
EPA found meet the criteria for nonessentiality. The commenter
agrees with EPA's determination to treat existing inventory
as de minimis. The commenter categorizes EPA's decision as a
``very fair method to help business make a smooth transition.''
The commenter further states that the ninety days to convert
was not impossible given that supplies of alternatives were
available and that, regardless of the grandfathering provision,
manufacturers would need to convert by year's end. EPA agrees
with many of the points raised by this commenter.
One commenter, who agrees with EPA's proposed grandfathering
provision, requests clarification of the term ``initial
inventory.''
The commenter provides an example where the producer of the
foam product may not be the same entity as the final producer
of the product to be sold. The commenter questions which inventory
represents the initial inventory, and suggests that initial
inventory should, for foam products, mean the inventory of the
manufacturer of the foam itself. EPA agrees that the term initial
inventory may require clarification. In this final action EPA
clarifies that the term ``initial inventory,'' with regard to
the temporary exemptions listed in . 82.65, means that the original
product has completed all of its manufacturing processes and
is ready for sale by that manufacturer (e.g. the foam is
manufactured).
That product may be subsequently incorporated into another product
by a different manufacturer after purchase. This would not affect
the applicability of the exemption.
To continuing selling products after January 1, 1994, the
manufacturer or distributor must be able to show, upon request
by EPA, that the product was in fact manufactured, and thus
placed into initial inventory prior to December 31, 1993. EPA
identified shipping forms, lot numbers, manufacturer date stamps
or codes, invoices, or the like as records that are normally
kept by manufacturers and distributors. The Agency believes
this type of information is routinely maintained for several
years.
2. Products Requiring Federal Approvals
EPA received three comments regarding the temporary exemptions
for products requiring federal approval prior to selling a
reformulated
product. One commenter states that the proposed thirty-day period
for manufacturers to continue to manufacture banned products
after being denied federal approval should be reconsidered.
The commenter states that thirty days is inconsistent with the
ninety days allowed for those that did receive approval to
reformulate.
Additionally, the commenter believes that the manufacturers
may not have submitted every possible alternative originally
or may have subsequently devised a new potential reformulation.
The commenter proposes that the ban should not apply to a
manufacturer
whose reformulation request is denied, so long as the manufacturer
submits another reformulation request within ninety days of
receipt of the notice of denial. If the subsequent reformulation
is approved, the commenter suggests that the manufacturer should
continue to be grandfathered for ninety days after receipt of
the approval. If the second request is denied, then so long
as another request is submitted, in good faith, within ninety
days, again grandfathering should continue. The commenter suggests
that the Agency may wish to place a restriction by either limiting
the number of submissions by a single company or by limiting
the total amount of time that a product can be exempted without
having received federal approval. EPA received a second comment
indicating that the Agency should allow one hundred and eighty
days for products that are denied a federal approval for
reformulations
to allow the manufacturer to locate a new formulation and reapply
for approval to the appropriate federal agency.
EPA believes that in many cases after receiving denial for
a reformulation, the manufacturer may be forced to shut down
that product line. The time needed to shut down a product line
is significantly less than the time required to retool to
manufacture
the products using an alternative formulation. Therefore, EPA
proposed only thirty days for manufacturers that were denied
approval for a reformulation. EPA agrees that thirty days may
be insufficient, but believes that forty-five days is sufficient
time for manufacturers to cease using class II substances, once
denial of application for reformulation has been received. Further,
EPA agrees that if a manufacturer devises a new formulation,
a method for submitting that formulation should be available
to that manufacturer. Therefore, in this final rule, EPA is
providing a continued temporary exemption if the manufacturer
submits a viable new reformulation to the same federal agency
within forty-five days of receiving a denial. For the purposes
of Section 610(d) only, a viable application means that the
application is complete, accurate and has been filed with the
appropriate federal agency. If after forty-five days no application
has been submitted, the manufacturer can no longer manufacture
a banned product. EPA believes forty-five days gives the
manufacturer
adequate time in which to re-submit an application or phase
out a product. EPA disagrees with establishing a limit on the
total amount of time a product can be exempted. The time frames
associated with federal review processes represent the amount
of time necessary for the federal agency to conduct a responsible
review of the formulations and determine the acceptability of
the formulation under applicable statutes and regulations. The
federal agencies cannot expedite their internal processing
procedures
simply because a formulation would otherwise be subject to the
class II ban without compromising the integrity of their own
program reviews. In addition, EPA does not believe it is
appropriate
to limit severely the number of submissions that can be made,
if those submissions are made in good faith and represent newly
devised formulations; however, EPA believes that without some
type of constraint, some manufacturers may perceive this exemption
as a way to continually circumvent the ban. Therefore, EPA will
review each re-submittal for completeness and accuracy, in
conjunction
with the appropriate federal entities. These applications must
be made in good faith and must represent formulations that could
not have been submitted earlier. If the application is deemed
to be nonviable, the manufacturer will have forty-five days
in which to cease manufacturing the product with a class II
substance after being informed that the application is nonviable.
EPA will therefore allow forty-five days for a manufacturer
to either shutdown or reapply to the same federal agency.
One commenter suggested that the term ``federal approval''
should also include approval by non-governmental bodies, such
as laboratories, if accepted under applicable regulations as
meeting federal approval requirements. The commenter further
suggested that EPA consider the approval of finished products
that incorporate approved products if the finished product cannot
be reformulated without federal approval of a particular component.
The commenter demonstrated the need to consider such situations
with life vests requiring approval by the U.S. Coast Guard.
EPA agrees with this commenter with respect to both issues.
If the appropriate applications were submitted prior to January
1, 1994, manufacturers that require the approval of both the
finished product and a particular component will be grandfathered
by this final action until such time as they receive approval
or denial. In addition, if the manufacturer can demonstrate
that approval by a non-government entity is required under a
federal statute or a federal regulation, EPA will consider that
situation as equivalent to direct review by the federal agency
and use of a class II substance will be grandfathered until
ninety days after receipt of approval or forty-five days after
denial.
D. Interstate Commerce
EPA received a comment supporting the Agency's proposed
definition
of interstate commerce. The commenter particularly agreed with
the EPA's proposed exclusion for the resale of used products.
EPA received three comments regarding the treatment of products
produced solely for export. Two commenters stated that EPA should
consider the interpretation the Agency adopted in the regulations
promulgated under section 611 (the labeling rule). One commenter
referred to the following discussion in the preamble to the
final labeling rule: ``Section 611 applies to products that
are `introduced into interstate commerce,' but makes no reference
to foreign commerce. The Clean Air Act does not define `interstate
commerce.' However, EPA believes that section 611's use of
interstate
commerce does not include `foreign commerce' * * * EPA recognizes
the competitive disadvantage that U.S. manufacturers would have
in the foreign marketplace as a result of having to label''
(58 FR 8136, 8154). The commenter further states that there
is no Congressional direction to include exports and that including
exports could put companies at a competitive disadvantage.
EPA would like to clarify that the statutory language in
section 610 and section 611 is markedly different. EPA agrees
that Congress did not intend for EPA to require products never
introduced into interstate commerce to be labeled. Section 610
encompasses all sales and offers for distribution in interstate
commerce until the final sale to the ultimate consumer. EPA
proposed a definition of interstate commerce and the treatment
of exports and imports for the class II ban, consistent with
the definition used in the class I ban. This includes products
ultimately destined for export if sold in interstate commerce
prior to export, and imports if sold in interstate commerce
after import. If a manufacturer could demonstrate that their
product is manufactured entirely within the borders of one state,
that the raw materials and components and labor used to manufacture
the product also originate within the same state, and if that
product does not enter interstate commerce in any way (e.g.
the shipping port is within the same state), EPA would agree
that product would not be considered part of interstate commerce
and could thus be sold for export.
There are strong policy reasons for the different
interpretations
of sections 610 and 611. Ozone depletion is a global concern.
The United States is a leader among the parties to the Montreal
Protocol. Imposing the labeling rule on exports would make little
sense however, in that foreign citizens would often be unable
to read the English labels, thus rendering them ineffective;
and labels would not serve their intended purpose of distinguishing
between products containing and those not containing
ozone-depleting
substances, since foreign-made products containing such substances
would not be labeled. To allow U.S. companies to effectively
``dump'' goods banned in the United States (for purposes of
global environmental protection) in foreign countries would
defeat the purposes of, and undermine the spirit of, the Montreal
Protocol.
EPA received one comment concerning EPA's legal authority
to regulate exports. The commenter indicated that EPA could
not regulate exports because EPA was not listed in Department
of Commerce (DOC) regulations, listing agencies authorized to
regulate exports. EPA wishes to clarify that EPA did not in
the proposal intend to regulate the foreign commerce aspect
of products destined for ultimate export. As explained above,
in this final rule, EPA is only regulating the sales in interstate
commerce of products that may eventually be exported. If products
are not sold in interstate commerce, this rule will have no
effect on export of such products. Thus, DOC regulations governing
the foreign commerce aspects of exports sales have no reference
to this rulemaking. The regulation cited by the commenter, 15
CFR 770.10, is entitled ``Exports which are not controlled by
the office of export licensing.'' EPA confirmed with the DOC
that this regulation does not in any way limit any agency's
independent authority to regulate sales in interstate commerce
of products that may ultimately be exported. Further, EPA notes
that the listing in . 770.10 is not complete, and that where
an agency is authorized by another statute to regulate foreign
commerce, it may do so, notwithstanding . 770.10. Although EPA
is not in the case of section 610 claiming authority to regulate
foreign commerce, EPA is authorized under other statutes such
as the Toxic Substances Control Act and the Resource Conservation
and Recovery Act to regulate foreign commerce.
EPA received one comment stating that since the statute only
authorizes EPA to regulate intrastate commerce, EPA cannot require
the seller of products in intrastate commerce to provide proof
that the products are not part of intra state commerce. EPA
believes that few products will actually meet the definition
of intrastate commerce; however, in cases where clearly a
particular
product is sold within intrastate commerce, the sale and
distribution
of that product will not be subject to this rule. Because EPA
believes that so few products could meet the definition of
interstate
commerce, EPA believes that where it is appropriate within the
scope of this rulemaking to question whether a person selling
or distributing a particular product is falsely asserting that
the product is exempt based on intrastate commerce, the Agency
is justified in requiring verification of the product's status.
Therefore, EPA believes it has authority to request verification
where the Agency questions the status of a product that a person
claims is exempt based on intrastate commerce.
EPA received one comment stating that a retailer may not
be aware of when the product was manufactured and, therefore,
should not be held liable for any prior sales. The commenter
further stated that ``interstate commerce'' is tied to each
event in the chain of sales. Only where a sale crosses a state
line should that sale be subject to the ban. EPA disagrees with
this commenter. EPA's interpretation of interstate commerce
does not include products that were manufactured, distributed,
and/or sold exclusively within a particular state, nor products
where 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. Furthermore,
the sale of the product includes every sale up to and including
the sale to the ultimate consumer, and to be considered not
part of interstate commerce all of those sales must take place
without ever crossing a state line. If any phase of manufacture
occurs in interstate commerce the product is considered ``in''
interstate commerce at any stage in its production. Therefore,
the sale and distribution of banned products in interstate commerce
is not legal, even when the one particular sale takes place
within the same state, unless the product is sold entirely in
intrastate commerce as described above.
E. Verification and Public Notice Requirements for Cleaning
Fluids for Non-Commercial Electronic and Photographic Equipment
EPA received several comments asking for clarification regarding
the exemption for lubricants, coatings, or cleaning fluids using
a class II substance for solvent purposes and the requirement
to sell aerosol cleaning fluids for electronic and photographic
equipment to only commercial users. Many commenters found these
two requirements to be either confusing or contradictory.
Section 610(b)(2) required EPA to ban the sale of
chlorofluorocarbon-
containing cleaning fluids for electronic and photographic
equipment
to non-commercial users. Consequently, EPA, in the class I ban,
included a ban on the sale, distribution, or offer of sale or
distribution of chlorofluorocarbon-containing cleaning fluids
for electronic and photographic equipment to non-commercial
users. As a result, there is no remaining chlorofluorocarbon
which legally could be substituted for a class II substance
in non-commercial cleaning fluids for electronic and photographic
equipment.
The class II ban restricts the sale of aerosol products and
pressurized dispensers; therefore, cleaning fluids in a non-
pressurized dispenser are not subject to the ban. However, in
order to continue selling aerosol cleaning fluids that contain
a class II substance, for electronic and photographic equipment
where flammability or worker safety justifies an exemption,
the only alternative must be the legal use of a class I substance.
For aerosol cleaning fluids used to clean electronic and
photographic
equipment sold to commercial users, such a legal use does exist,
and EPA proposed an exemption under the class II ban, only for
commercial uses. The class I ban and statute requires that these
cleaning fluids be restricted to commercial users only; therefore,
a verification requirement is necessary to ensure these products
are not sold for non-commercial uses.
V. Summary of Changes From Proposal
This final action promulgates regulations under section 610.
Several additional exemptions have been provided under the class
II ban and revisions have been made to the class I ban.
Under . 82.65(c), EPA has changed the length of time a product
can be manufactured after being denied federal approval from
30 days to 45 days. EPA also added a provision to allow for
the submission of new applications to the same federal agency,
within forty-five days of denial.
Under .. 82.66(d)(2)(vii), 82.66(d)(2)(viii) and 82.66(d)(2)(x),
EPA has added exceptions for the use of CFC-12 as a propellant
in various uses.
Under .. 82.70(a)(2)(iv) and 82.70(a)(2)(v), EPA has added
an exemption for propellant uses of certain class II substances.
EPA has added . 82.70(a)(2)(vi), an exception from the class
II ban for document preservation sprays containing HCFC-141b
and HCFC-22 used under specific circumstances.
EPA has added . 82.70(a)(2)(vii), an exception from the class
II ban for commercial portable fire extinguishers containing
class II substances as fire extinguishants where no alternative
other than halons are available.
VI. Effective Dates
This final rule makes it unlawful to sell, distribute, or
offer to sell or distribute, in interstate commerce, the products
identified as nonessential in 40 CFR 82.70(a), 40 CFR 82.70(b)
and 40 CFR 82.70(c) effective January 1, 1994. In addition,
this final rule bans the sale, distribution, or offer of sale
or distribution, in interstate commerce, of the products identified
as nonessential in 40 CFR 82.70(c)(ii) effective January 1,
1996.
EPA has authority under 5 U.S.C. 553(d)(1)(iii) to expedite
the effective date of a rulemaking. While generally EPA must
provide thirty days notice, in cases involving a substantive
rule which grants or recognizes an exemption or relieves a
restriction
and ``as otherwise provided by the agency for good cause found
and, published with the rule,'' an agency may accelerate the
effective date of a rule. Without accelerating the effective
date of this rule, the statutory ban will become effective on,
January 1, 1994, inadvertently banning products that meet the
statutory criteria for exemptions and that will only be exempted
after this rule is effective. Since this rule grants and recognizes
an exemption, EPA believes that there is good cause to accelerate
the effective date of this rule to coincide with the effective
statutory date of the ban on class II products. Therefore, the
effective date for this rulemaking will be January 1, 1994.
EPA would like to clarify that while the class II ban is effective
January 1, 1994, this action does not revise the effective dates
contained in the class I ban. The ban on the sale, distribution,
or offer of sale or distribution, in interstate commerce of
the products specifically mentioned in . 82.66 (a) and (b) was
effective on February 16, 1993. The ban on the sale or distribution
of products identified in . 82.66 (c) and (d) is effective on
January 17, 1994.
VII. Summary of Supporting Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1994),
the Agency must determine whether this regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines
``significant''
regulatory action as one that is likely to lead to a rule that
may:
(1) Have an annual effect on the economy of $100 million
or more, or adversely and materially affect a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement,
grants, user fees, or loan programs or the rights and obligations
of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set
forth in the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866
and is therefore not subject to OMB review under the executive
order. OMB and EPA have agreed with this determination.
EPA has prepared two background documents (see references
Background Document on Foam Products Made With Class II Substances
and Background Document on Aerosol Products and Pressurized
Dispensers Containing Class II Substances in Docket A-93-20)
which include a qualitative study of the economic impact of
this regulation for each product identified as nonessential
and prohibited from sale or distribution.
Most foam is produced by large businesses. This is due to
high market entry barriers, including the need for large capital
investments. However, the class II ban affects all the groups
involved in the sale and distribution of the foam products;
therefore, other entities besides the producers, including small
retail or distribution businesses, are involved. In many cases,
foam represents one component of a finished product that is
produced by a small business. In addition, the finished products
are often sold by small retail business operations. EPA has
researched the numbers and types of firms that manufacture and
sell foam products affected by the class II ban, and the potential
economic impact the class II ban may have on these entities.
EPA believes that the class II ban will have no economic
impact for the manufacturers of open cell rigid polyurethane
foam, because EPA is not aware of any manufacturers of this
product that currently use HCFCs. The class II ban is likely
to have minimal impact on the manufacturers of flexible molded
foam since information indicates that most have moved directly
from CFCs to methylene chloride and water formulations. Most
of the production of semi-rigid integral skin foam relies on
the use of halocarbon blowing agents. However, the exemption
for foams used to meet automotive safety standards will
significantly
alleviate the impact the ban will have on these products. Most
other types of polyurethane foams are made with HCFCs. Information
indicates that approximately 85 to 90 percent of extruded
polystyrene
sheet foam does not rely on HCFCs. Companies that were still
using HCFCs are required to switch blowing agents; thus, these
companies are affected by the ban. EPA does not believe the
ban will have any impact on polyethylene bead foam, since
information
available to EPA indicates the manufacturers of this product
have already switched to hydrocarbons. EPA is aware of at least
six extruded polyethylene manufacturers that have converted
to hydrocarbons; however, as discussed earlier, some of the
other producers of extruded polyethylene foam, not used solely
as pipe wrap, will be significantly affected. EPA believes the
ban will have no impact on expanded polypropylene bead
manufacturers
since these manufacturers have converted to hydrocarbons. However,
the sole American producer of extruded polypropylene may incur
significant costs. Further details concerning the results of
this research appear in the Background Document on Foam Products
Made With Class II Substances.
Many manufacturers of aerosol products could be characterized
as small businesses. EPA believes that few companies that primarily
manufacture aerosol products have more than 100 employees. However,
several facilities are actually part of larger companies that
produce a range of other products. In both cases, the entire
product line produced by the manufacturers may not consist of
products containing class II substances. Distributors and retailers
may vary considerably in size and product line. EPA has researched
the numbers and types of firms that manufacture and sell aerosol
products and pressurized dispensers affected by the class II
ban, and the potential economic impact the class II ban may
have on these entities.
EPA has examined a number of aerosol products affected by
the class II ban. This research included both products that
could meet the narrow criteria for receiving exceptions established
by Congress in section 610(d), and those that do not meet the
criteria. Much of the information collected by EPA is qualitative
and anecdotal in nature but is sufficiently conclusive for the
Agency to be able to obtain a reasonable picture of the overall
impact. Examples of these findings are discussed below.
EPA is aware of formulations for document preservation sprays
that do not use class I or class II substances. However, at
least one major manufacturer has tested and is now using class
II substances as both propellants and solvents. Therefore, while
EPA is providing an exemption for certain propellant and solvent
uses in this product, the class II ban in limited circumstances
will affect this product. Many pesticide products using class
II substances will be affected by the class II ban. However,
the impacts will be reduced because of the provision allowing
manufacturers that require federal approval for reformulation
for a product or approval of a specific substitute product to
continue to sell or distribute, or offer for sale or distribution
in interstate commerce, their existing formulations until ninety
days after receiving all appropriate federal agency approvals
or forty-five days after denial. The provision will also provide
relief for other products requiring approval prior to
reformulation.
Manufacturers of dusters and freezants that have continued to
use HCFC formulations will be affected by the class II ban;
however, companies that have already moved to alternatives such
as carbon dioxide or HFCs will not be affected. Many manufacturers
of defensive sprays also will be significantly affected by the
class II ban. Further details concerning the results of this
research appear in the Background Document on Aerosol Products
and Pressurized Dispensers Containing Class II Substances.
EPA has considered the benefits that can be attributed to
the class II ban. In order to calculate the benefits, EPA
considered
the total annual consumption of HCFCs in products that will
be banned. EPA estimates that the annual HCFC consumption in
foam products that will be banned is approximately 27.31 million
pounds. The annual HCFC consumption in aerosol products that
will be banned is approximately 11.8 million pounds. EPA attributes
all of the avoided emissions and corresponding benefits to the
class II ban. EPA believes that if the self-executing ban was
not included in the Clean Air Act Amendments, the current amount
of HCFCs used in the foam and aerosol sectors would have been
greater. Furthermore, without the ban, these annual emissions
actually would continue to increase, especially during the next
several years and following the phaseout of class I substances.
These increases would have leveled off and only begun to decrease
as the phaseout dates for HCFCs approached (2003-2030). EPA
estimates the benefits for this rule range between $148 million
and $604 million when using a 2 percent discount rate, and between
$107 million and $438 million when using a 7 percent discount
rate.
EPA requested comment on the overall benefits of the class
II ban and the costs the class II ban will have on affected
businesses. In particular, EPA requested comment on the size
and diversity of the companies affected by the ban, the potential
costs associated with the class II ban, and the impact the class
II ban will have on small entities. In addition, EPA requested
comment on the cost and benefits associated with the proposed
regulations. Specifically, EPA requested comment on the offsetting
beneficial effects that the proposed exceptions, grandfathering
of existing inventories, and grandfathering for products waiting
for required federal approvals, will have on affected businesses.
EPA did not receive comments regarding the overall impacts of
the ban; however, EPA did receive comments concerning the
grandfathering
provisions and the costs associated with retrofitting facilities
to meet the ban. The Food Service and Packaging Institute estimated
that their members spent more that $10 million on capital costs
to retrofit existing equipment. This number does not include
the costs of disrupting normal operations while these retrofits
occurred. One member alone spent more than $3 million to complete
their capital costs for retrofits. This member believes that
the cost of recalling and destroying products that were already
produced with class II substances prior to the member's
conversions,
would cost a significantly larger sum, while producing no added
environmental benefits. Several other commenters that have already
completed converting to non HCFC-formations, such as one producer
of dusters and noise horns, indicated that the grandfathering
provisions represent a fair method to help businesses make a
smooth transition. This manufacturer further stated that the
key costs of the ban involve the short time frames for facilities'
conversions and the need to change the art work that appears
on the aerosol cans, converting the packaging to handle the
properties of all the new substitutes, and educating the customers.
This commenter believes that their organization spent $500,000
to meet both the class I and class II bans. An additional $200,000
was also incurred due to the tax on CFC.
The statutory ban is self-executing. If EPA did not promulgate
regulations to create exemptions, the ban would impose
significantly
higher costs. Furthermore, without the temporary exemptions
for existing inventories and products requiring federal approval
prior to reformulation, the statutory ban would impose
significantly
higher costs on the distributors and retailers of banned products.
The rule creates exemptions and clarifies the exceptions provided
by the statute, therefore lessening the burden of the
self-executing
ban imposed by the statute.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires
that Federal agencies examine the impacts of their regulations
on small entities. Under 5 U.S.C. 604(a), whenever an agency
is required to publish a general notice of proposed rulemaking,
it must prepare and make available for public comment an initial
regulatory flexibility analysis (RFA). Such an analysis is not
required if the head of an agency certifies that a rule will
not have a significant economic impact on a substantial number
of small entities, pursuant to 5 U.S.C. 605(b).
EPA believes that any impact that this regulation will have
on certain small entities is unavoidable given the straightforward
nature of the statutory provision this regulation implements.
An examination of the impacts on small entities was discussed
in the background documents accompanying the NPRM and has since
been updated to include information supplied by comments. Revised
versions of the background documents are contained in the docket.
The background document assesses the impact this regulation
may have on small entities and provides examples of such impacts.
In general, the impact of the ban is overall minimal; and in
particular, the impact of this rule, according to the information
supplied by commenters, will serve to relieve some of the burden
the self-executing ban places on certain products.
C. Paperwork Reduction Act
Any information collection requirements in a rule must be
submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Because no informational collection requirements were proposed
and none are being required by today's action, EPA has determined
that the Paperwork Reduction Act does not apply to this rulemaking
and no Information Collection Request document has been prepared.
VIII. Judicial Review
Under Section 307(b)(1) of the Act, EPA finds that these
regulations are of national applicability. Accordingly, judicial
review of this action is available only by the filing of a petition
for review in the United States Court of Appeals for the District
of Columbia Circuit within sixty days of publication of this
action in the Federal Register. Under section 307(b)(2), the
requirements of this rule may not be challenged later in judicial
proceedings brought to enforce those requirements.
IX. References
United Nations Environment Programme. Report of the Aerosol
Products, Sterilants, Miscellaneous Uses and Carbon
Tetrachloride
Technical Options Committee (December 1991).
United Nations Environment Programme. Report of the Fourth Meeting
of the Parties to the Montreal Protocol on Substances that
Deplete the Ozone Layer (November 25, 1992).
United Nations Environment Programme. Scientific Assessment
of Ozone Depletion: 1991 (December 17, 1991).
United Nations Environment Programme. Solvents, Coatings and
Adhesives: Technical Options Committee Report (December
1991).
United Nations Environment Programme. Third Meetings of the
Parties to the Montreal Protocol on Substances that Deplete
the Ozone Layer: UNEP/OzL.Pro.3/L.4/Add.4 (Nairobi, 19-21
June, 1991).
United Nations Environment Programme. 1991 UNEP Flexible and
Rigid Foams Technical Options Report (December 20, 1991).
United States Environmental Protection Agency. Alternative
Formulations
to Reduce CFC Use in U.S. Exempted and Excluded Aerosol
Products (November 1989).
United States Environmental Protection Agency. Background Document
on Aerosol and Pressurized Dispenser Products Containing
Class II Substances (March 1993).
United States Environmental Protection Agency. Background Document
on Identification of Nonessential Products that Release
Class I Substances (November 1992).
United States Environmental Protection Agency. Essential Use
Determination-Revised: Support Document Fully Halogenated
Chlorofluoroalkanes (March 17, 1978).
United States Environmental Protection Agency. Handbook for
Reducing and Eliminating Chlorofluorocarbons in Flexible
Polyurethane Foams (April 1991).
United States Environmental Protection Agency. Manual of Practices
to Reduce and Eliminate CFC-113 Use in the Electronics Industry
(March, 1990).
United States Environmental Protection Agency. Response to Comments
for Proposed Rule on Nonessential Products Made with Class
I Substances (October 30, 1992).
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons, Exports,
Hydrochlorofluorocarbons, Imports, Interstate commerce,
Nonessential
products, Reporting and recordkeeping requirements, Stratospheric
ozone layer.
Dated: December 22, 1993.
Carol M. Browner,
Administrator.
Title 40, Code of Federal Regulations, part 82, is amended
as follows:
PART 82-PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as
follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
2. Subpart C is revised to read as follows:
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
With Class II Substances
Sec.
82.60 Purpose.
82.62 Definitions.
82.64 Prohibitions.
82.65 Temporary exemptions.
82.66 Nonessential Class I Products and Exceptions.
82.68 Verification and Public Notice Requirements.
82.70 Nonessential Class II Products and Exceptions.
Subpart C-Ban on Nonessential Products Containing Class I
Substances
and Ban on Nonessential Products Containing or Manufactured
With Class II Substances
. 82.60 Purpose.
The purpose of this subpart is to implement the requirements
of sections 608 and 610 of the Clean Air Act as amended in 1990
on emission reductions and nonessential products.
. 82.62 Definitions.
For purposes of this subpart:
(a) Chlorofluorocarbon means any substance listed as Class
I group I or Class I group III in 40 CFR part 82, appendix A
to subpart A.
(b) Commercial, when used to describe the purchaser of a
product, means a person that uses the product in the purchaser's
business or sells it to another person and has one of the following
identification numbers:
(1) A federal employer identification number;
(2) A state sales tax exemption number;
(3) A local business license number; or
(4) A government contract number.
(c) Consumer, when used to describe a person taking action
with regard to a product, means the ultimate purchaser, recipient
or user of a product.
(d) Distributor, when used to describe a person taking action
with regard to a product means:
(1) The seller of a product to a consumer or another
distributor;
or
(2) A person who sells or distributes that product in interstate
commerce for export from the United States.
(e) Product means an item or category of items manufactured
from raw or recycled materials which is used to perform a function
or task.
(f) Release means to emit into the environment during the
manufacture, use, storage or disposal of a product.
(g) Class II Substance means any substance designated as
class II in 40 CFR part 82, appendix B to subpart A.
(h) Foam Insulation Product, when used to describe a product
containing or consisting of plastic foam, means a product
containing
or consisting of the following types of foam:
(1) Closed cell rigid polyurethane foam;
(2) Closed cell rigid polystyrene boardstock foam;
(3) Closed cell rigid phenolic foam; and
(4) Closed cell rigid polyethylene foam when such foam is
suitable in shape, thickness and design to be used as a product
that provides thermal insulation around pipes used in heating,
plumbing, refrigeration, or industrial process systems.
(i) Hydrochlorofluorocarbon means any substance listed as
class II in 40 CFR part 82, appendix B to subpart A.
(j) Owner of a boat or marine vessel means any person who
possesses a title, registration or other documentation that
indicates that the person presenting this documentation is in
possession of a marine vessel as defined in 33 CFR part 177.
(k) Owner of a noncommercial aircraft means any person who
possesses a title, registration or other documentation that
indicates that the person presenting this documentation is in
possession of a noncommercial aircraft.
. 82.64 Prohibitions.
(a) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(a).
(b) Effective February 16, 1993, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products specified in . 82.66(b) to a person who does not
provide proof of being a commercial purchaser, as defined under
. 82.62.
(c) Effective January 17, 1994, no person may sell or
distribute,
or offer to sell or distribute, in interstate commerce any of
the products identified as being nonessential in . 82.66(c)
or . 82.66(d).
(d) Except as permitted under . 82.65, effective January
1, 1994, no person may sell or distribute, or offer for sale
or distribution, in interstate commerce any product identified
as being nonessential in . 82.70(a) or . 82.70(c).
(e) Except as permitted under . 82.65, effective January
1, 1994, no person may sell or distribute, or offer to sell
or distribute, in interstate commerce any of the products specified
in . 82.70(b) to a person who does not provide proof of being
a commercial purchaser, as defined under . 82.62.
(f) Except as permitted under . 82.65(d), effective January
1, 1996, no person may sell or distribute, or offer for sale
or distribution, in interstate commerce any product identified
as being nonessential in . 82.70(c)(ii).
(g) It is a violation of this subpart to sell or distribute,
or offer for sale or distribution, products effected by the
provisions of . 82.68 if the seller knew or should have known
that the purchaser was purchasing the product for a prohibited
application.
. 82.65 Temporary exemptions.
(a) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory by December 31, 1993.
(b) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory within the date 90 days after
the effective date of any federal approvals required for product
reformulation, where application for the required approval was
timely and properly submitted to the approving federal agency
prior to January 1, 1994.
(c)(1) Any person may sell or distribute or offer to sell
or distribute, in interstate commerce, at any time, any products
specified as nonessential in . 82.70 which are manufactured
and placed into initial inventory within 45 days after the receipt
of denial by any federal agency of an application for reformulation
where initial application for the required approval was timely
and properly submitted to the approving federal agency prior
to January 1, 1994.
(2) If, within 45 days of receipt of a denial of an application
for reformulation, a person submits a new viable application
for federal approval of a reformulation, that person may continue
to sell and distribute, or offer to sell and distribute until
45 days of denial of that application.
(d) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, at any time, any integral
skin foam utilized to provide for motor vehicle safety in
accordance
with Federal Motor Vehicle Safety Standards, which are manufactured
and placed into initial inventory prior to January 1, 1996.
(e) Any person selling or distributing, or offering to sell
or distribute, any product specified in this section after January
1, 1994, or January 1, 1996 for subparagraph (d), must retain
proof that such product was manufactured and placed into initial
inventory before the relevant date specified in this section.
Such proof may take the form of shipping forms, lot numbers,
manufacturer date stamps, invoices or equivalent business records.
(f) Any person may sell or distribute, or offer to sell or
distribute, in interstate commerce, any aircraft pesticide
containing
class I until an alternative aircraft pesticide containing class
II is available in interstate commerce.
. 82.66 Nonessential Class I Products and Exceptions.
The following products which release a Class I substance
(as defined in 40 CFR part 82, appendix A to subpart A) are
identified as being nonessential, and subject to the prohibitions
specified under . 82.64-
(a) Any plastic party streamer or noise horn which is propelled
by a chlorofluorocarbon, including but not limited to-
(1) String confetti;
(2) Marine safety horns;
(3) Sporting event horns;
(4) Personal safety horns;
(5) Wall-mounted alarms used in factories or other work areas;
and
(6) Intruder alarms used in homes or cars.
(b) Any cleaning fluid for electronic and photographic equipment
which contains a chlorofluorocarbon:
(1) Including but not limited to liquid packaging, solvent
wipes, solvent sprays, and gas sprays; and
(2) Except for those sold or distributed to a commercial
purchaser.
(c) Any plastic flexible or packaging foam product which
is manufactured with or contains a chlorofluorocarbon;
(1) Including but not limited to:
(i) Open cell polyurethane flexible slabstock foam;
(ii) Open cell polyurethane flexible molded foam;
(iii) Open cell rigid polyurethane poured foam;
(iv) Closed cell extruded polystyrene sheet foam;
(v) Closed cell polyethylene foam; and
(vi) Closed cell polypropylene foam.
(2) Except-flexible or packaging foam used in coaxial cable
(d) Any aerosol product or other pressurized dispenser, other
than those banned in . 82.64(a) or . 82.64(b), which contains
a chlorofluorocarbon,
(1) Including but not limited to household, industrial,
automotive
and pesticide uses,
(2) Except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants for pharmaceutical and tablet manufacture;
(iii) Gauze bandage adhesives and adhesive removers;
(iv) Topical anesthetic and vapocoolant products;
(v) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain CFC-11, CFC-12, or CFC-
113 for solvent purposes, but which contain no other CFCs;
(vi) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain CFC-11 or CFC-113 as a solvent, but
which contain no other CFCs;
(vii) Mold release agents used in the production of plastic
and elastomeric materials, which contain CFC-11 or CFC-113 as
a solvent, but which contain no other CFCs, and/or mold release
agents that contain CFC-12 as a propellant, but which contain
no other CFCs;
(viii) Spinnerette lubricant/cleaning sprays used in the
production of synthetic fibers, which contain CFC-114 as a solvent,
but which contain no other CFCs, and/or spinnerette
lubricant/cleaning
sprays which contain CFC-12 as a propellant, but which contain
no other CFCs;
(ix) Containers of CFCs used as halogen ion sources in plasma
etching;
(x) Document preservation sprays which contain CFC-113 as
a solvent, but which contain no other CFCs, and/or document
preservation sprays which contain CFC-12 as a propellant, but
which contain no other CFCs, and which are used solely on thick
books, books with coated or dense paper and tightly bound
documents;
and
(xi) Red pepper bear repellent sprays which contain CFC-113
as a solvent, but which contain no other CFCs.
. 82.68 Verification and public notice requirements.
(a) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must verify that
the purchaser is a commercial entity as defined in . 82.62.
In order to verify that the purchaser is a commercial entity,
the person who sells or distributes this product must request
documentation that proves the purchaser's commercial status
by containing one or more of the commercial identification numbers
specified in . 82.62 (b). The seller or distributor must have
a reasonable basis for believing that the information presented
by the purchaser is accurate.
(b) Effective February 16, 1993, any person who sells or
distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must prominently
display a sign where sales of such product occur which states:
It is a violation of federal law to sell, distribute, or
offer to sell or distribute, any chlorofluorocarbon-containing
cleaning fluid for electronic and photographic equipment to
anyone who is not a commercial user of this product. The penalty
for violating this prohibition can be up to $25,000 per sale.
Individuals purchasing such products must present proof of their
commercial status in accordance with . 82.68(a).
(c) Effective January 1, 1994, any person who sells or
distributes
any aerosol or pressurized dispenser of cleaning fluid for
electronic
and photographic equipment which contains a class II substance
must verify that the purchaser is a commercial entity as defined
in . 82.62(b). In order to verify that the purchaser is a
commercial
entity, the person who sells or distributes this product must
request documentation that proves the purchaser's commercial
status by containing one or more of the commercial identification
numbers specified in . 82.62(b).
(d) Effective January 1, 1994, any person who sells or
distributes
any aerosol or other pressurized dispenser of cleaning fluid
for electronic and photographic equipment which contains a class
II substance must prominently display a sign where sales of
such product occur which states:
It is a violation of federal law to sell, distribute, or
offer to sell or distribute, any aerosol hydrochlorofluorocarbon-
containing cleaning fluid for electronic and photographic equipment
to anyone who is not a commercial user of this product. The
penalty for violating this prohibition can be up to $25,000
per unit sold. Individuals purchasing such products must present
proof of their commercial status in accordance with . 82.68(c).
(e) Effective January 1, 1994, in order to satisfy the
requirements
under . 82.68 (b) and (d), any person who sells or distributes
cleaning fluids for electronic and photographic equipment which
contain a class I substance and those aerosol or pressurized
dispensers of cleaning fluids which contain a class II substance,
may prominently display one sign where sales of such products
occur which states:
It is a violation of federal law to sell, distribute, or
offer to sell or distribute, any chlorofluorocarbon-containing
cleaning fluid for electronic and photographic equipment or
aerosol hydrochlorofluorocarbon-containing cleaning fluid for
electronic and photographic equipment to anyone who is not a
commercial user of this product. The penalty for violating this
prohibition can be up to $25,000 per unit sold. Individuals
purchasing such products must present proof of their commercial
status in accordance with 40 CFR 82.68(a) or 82.68(c).
(f) Effective January 1, 1994, any person who sells or
distributes
any portable fire extinguisher containing a class II substance
must prominently display a sign where sales of such products
occur; or in cases where the purchaser does not physically come
in contact with the point of sale, written notification must
be given. This notification must state: ``It is a violation
of federal law to sell portable fire extinguishers containing
hydrochlorofluorocarbons to anyone, except for use in applications
where necessary to extinguish fire efficiently without irreparably
damaging the equipment or area being protected or where the
use of other alternatives can cause a hazard to persons in the
area. The penalty for violating this prohibition can be up to
$25,000 per unit sold. Individuals purchasing such products
must present proof of their commercial status in accordance
with 40 CFR 82.68(a), or of ownership of a marine vessel or
boat in accordance with 40 CFR 82.62(j), or of ownership of
a noncommercial aircraft in accordance with 40 CFR 82.62(k).''
Written notification may by placed on sales brochures, order
forms, invoices and the like.
(g) Effective January 1, 1994, any person who sells or
distributes
any portable fire extinguisher which contains a class II substance
must verify that the purchaser is a commercial entity as defined
in . 82.62(b) or is the owner of a marine vessel or boat in
accordance with . 82.62(j) or the owner of a noncommercial aircraft
in accordance with . 82.62(k). In order to verify that the
purchaser
is a commercial entity, the person who sells or distributes
this product must be presented with documentation that proves
the purchaser's commercial status by containing one or more
of the commercial identification numbers specified in . 82.62(b).
In order to verify that the purchaser is the owner of a marine
vessel or boat, the person who sells or distributes this product
must be presented with documentation specified in . 82.62(j)
that proves the purchaser's status as the owner of a marine
vessel or boat. In order to verify that the purchaser is in
ownership of a noncommercial aircraft, the person who sells
or distributes this product must be presented with documentation
specified in . 82.62(k) that proves the purchaser's status as
the owner of a noncommercial aircraft by containing one or more
of the identification information specified in . 82.62(k). The
seller or distributor must have a reasonable basis for believing
that the information presented by the purchaser is accurate.
(h) Effective January 1, 1994, any person who sells or
distributes
any mold release agents containing a class II substance as a
propellant must provide written notification to the purchaser
prior to the sale that ``It is a violation of federal law to
sell mold release agents containing hydrochlorofluorocarbons
as propellants to anyone, except for use in applications where
no other alternative except a class I substance is available.
The penalty for violating this prohibition can be up to $25,000
per unit sold.'' Written notification may be placed on sales
brochures, order forms, invoices and the like.
(i) Effective January 1, 1994, any person who sells or
distributes
any wasp and hornet spray containing a class II substance must
provide written notification to the purchaser prior to the sale
that ``it is a violation of federal law to sell or distribute
wasp and hornet sprays containing hydrochlorofluorocarbons as
solvents to anyone, except for use near high-tension power lines
where no other alternative except a class I substance is available.
The penalty for violating this prohibition can be up to $25,000
per unit sold.'' Written notification may be placed on sales
brochures, order forms, invoices and the like.
. 82.70 Nonessential Class II products and exceptions.
The following products which release a class II substance
(as designated as class II in 40 CFR part 82, appendix B to
subpart A) are identified as being nonessential and the sale
or distribution of such products is prohibited under . 82.64(d),
(e), or (f)-
(a) Any aerosol product or other pressurized dispenser which
contains a class II substance:
(1) Including but not limited to household, industrial,
automotive
and pesticide uses;
(2) Except-
(i) Medical devices listed in 21 CFR 2.125(e);
(ii) Lubricants, coatings or cleaning fluids for electrical
or electronic equipment, which contain class II substances for
solvent purposes, but which contain no other class II substances;
(iii) Lubricants, coatings or cleaning fluids used for aircraft
maintenance, which contain class II substances for solvent purposes
but which contain no other class II substances;
(iv) Mold release agents used in the production of plastic
and elastomeric materials, which contain class II substances
for solvent purposes but which contain no other class II
substances,
and/or mold release agents that contain HCFC-22 as a propellant
where evidence of good faith efforts to secure alternatives
indicates that, other than a class I substance, there are no
suitable alternatives;
(v) Spinnerette lubricants/cleaning sprays used in the
production
of synthetic fibers, which contain class II substances for solvent
purposes and/or contain class II substances for propellant
purposes;
(vi) Document preservation sprays which contain HCFC-141b
as a solvent, but which contain no other class II substance;
and/or which contain HCFC-22 as a propellant, but which contain
no other class II substance and which are used solely on thick
books, books with coated, dense or paper and tightly bound
documents;
(vii) Portable fire extinguishing equipment sold to commercial
users, owners of marine vessels or boats, and owners of
noncommercial
aircraft that contains a class II substance as a fire extinguishant
where evidence of good faith efforts to secure alternatives
indicate that, other than a class I substance, there are no
suitable alternatives; and
(viii) Wasp and hornet sprays for use near high-tension power
lines that contain a class II substance for solvent purposes
only, but which contain no other class II substances.
(b) Any aerosol or pressurized dispenser cleaning fluid for
electronic and photographic equipment which contains a class
II substance, except for those sold or distributed to a commercial
purchaser.
(c) Any plastic foam product which contains, or is manufactured
with, a class II substance,
(1) Including but not limited to household, industrial,
automotive
and pesticide uses,
(2) Except-
(i) Any foam insulation product, as defined in . 82.62(h);
and
(ii) Integral skin foam utilized to provide for motor vehicle
safety in accordance with Federal Motor Vehicle Safety Standards
until January 1, 1996, after which date such products are
identified
as nonessential and may only be sold or distributed or offered
for sale or distribution in interstate commerce in accordance
with . 82.65(d).
[FR Doc. 93-31981 Filed 12-29-93; 8:45 am]
BILLING CODE 6560-50-P
The Contents entry for this article reads as follows:
Air programs:
Stratospheric ozone protection-
Class II ozone-depleting substances; nonessential products ban,
69638
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