Protection of Stratospheric Ozone: Listing of Substitutes for
Ozone-Depleting Substances
[Federal Register: January 27, 2003 (Volume 68, Number 17)]
[Rules and Regulations]
[Page 4003-4011]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja03-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7443-4]
Protection of Stratospheric Ozone: Listing of Substitutes for
Ozone-Depleting Substances
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: This action lists three substitutes for ozone-depleting
substances (ODSs) in the fire suppression and explosion protection
sector as acceptable (subject either to narrowed use limits or use
conditions) under the U.S. Environmental Protection Agency's (EPA)
Significant New Alternatives Policy (SNAP) program. SNAP implements
section 612 of the Clean Air Act, as amended in 1990, which requires
EPA to evaluate substitutes for ODSs to reduce overall risk to human
health and the environment.
In this Direct Final Rulemaking (FRM), EPA is issuing its decision
on the acceptability of three halon substitutes in the fire suppression
and explosion protection sector. EPA is issuing a companion proposal to
this direct final rule elsewhere in today's Federal Register. If we
receive any adverse comments, EPA will withdraw this direct final
action and will consider and respond to any comments prior to taking
any new, final action.
DATES: This rule is effective on March 28, 2003, without further
notice, unless EPA receives adverse comment or receives a request for a
public hearing by February 26, 2003. If we receive adverse comment or a
request for a public hearing, we will publish a timely withdrawal in
the Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Send your comments and data specific to this final rule to
Docket A-2002-08, U.S. Environmental Protection Agency, OAR Docket and
Information Center, 1200 Pennsylvania Avenue NW., Mailcode 6102T,
Washington, DC 20004. The docket is physically located at 1301
Constitution Avenue NW., Room B108, Washington, DC. You may inspect the
docket between 8 a.m. and 5:30 p.m. on weekdays. Telephone (202) 566-
1742; fax (202) 566-1741. As provided in 40 CFR part 2, a reasonable
fee may be charged for photocopying. To expedite review, send a second
copy of your comments directly to Bella Maranion at the address listed
below under FOR FURTHER INFORMATION CONTACT. Information designated as
Confidential Business Information (CBI) under 40 CFR part 2, subpart 2,
must be sent directly to the contact person for this notice. However,
the Agency is requesting that all respondents submit a non-confidential
version of their comments to the docket as well.
FOR FURTHER INFORMATION CONTACT: Bella Maranion at (202) 564-9749 or
fax (202) 565-2155, U.S. Environmental Protection Agency, Global
Programs Division, Mail Code 6205J, Washington, DC 20460. Overnight or
courier deliveries should be sent to the office location at 501 Third
Street NW., 4th floor, Washington, DC, 20001. Also contact the
Stratospheric Protection Hotline at (800) 296-1996 and EPA's Ozone
Depletion World Wide Web site at http://www.epa.gov/ozone/snap/index.html.
SUPPLEMENTARY INFORMATION: In this direct final rule, EPA adds three
fire suppression agents to the list of acceptable substitutes, subject
to either narrowed use limits or use conditions. The regulations
implementing the SNAP program are codified at 40 CFR part 82, subpart
G. The appendices to subpart G list substitutes for ODSs that have had
restrictions imposed on their use. The action in this direct final rule
will add these halon substitutes to the appendices to subpart G.
EPA is publishing today's revisions to the SNAP lists without prior
proposal because the Agency views them as non-controversial and
anticipates no adverse comment. We are adding three new agents to the
list of acceptable substitutes, subject to narrowed use limits or use
conditions. This action does not place any significant burden on the
regulated community but lists as acceptable, subject to narrowed use
limits or use conditions, new halon substitutes while continuing to
protect human health and the environment.
In the ``Proposed Rules'' section of today's Federal Register
publication, EPA is publishing a companion proposed rule that proposes
the same actions as in this direct final rule. The direct final rule
will be effective on March 28, 2003, without further notice unless we
receive adverse comment (or a request for a public hearing) by February
26, 2003. If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this rule
will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second public comment period on this action. Any parties interested
in commenting must do so at this time.
You may claim that information in your comments is confidential
business information, as allowed by 40 CFR part 2. If you submit
comments and include information that you claim as confidential
business information, we request that you submit them directly to Bella
Maranion in two versions: one clearly marked ``Public'' to be filed in
the Public Docket, and the other marked ``Confidential'' to be reviewed
by authorized government personnel only.
Table of Contents
I. Section 612 Program
a. Statutory Requirements
b. Regulatory History
II. Listing of Substitutes
III. Administrative Requirements
IV. Additional Information
I. Section 612 Program
A. Statutory Requirements
Section 612 of the Clean Air Act (CAA) authorizes EPA to develop a
program for evaluating alternatives to ozone-depleting substances. EPA
refers to this program as the Significant New Alternatives Policy
(SNAP) program. The major provisions of section 612 are:
? Rulemaking: Section 612(c) requires EPA to promulgate rules
making it unlawful to replace any class I (chlorofluorocarbon, halon,
carbon tetrachloride, methyl chloroform, methyl bromide, and
hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance
with any substitute that the Administrator determines may present
adverse effects to human health or the environment where the
Administrator has identified an alternative that (1) reduces the
overall risk to human health and the environment, and (2) is currently
or potentially available.
? Listing of Unacceptable/Acceptable Substitutes: Section
612(c) also requires EPA to publish a list of the substitutes
unacceptable for specific uses. EPA must publish a corresponding list
of acceptable alternatives for specific uses.
? Petition Process: Section 612(d) grants the right to any
person to petition EPA to add a substitute to or delete a substitute
from the lists published in accordance with Section 612(c). The Agency
has 90 days to grant or deny a petition. Where the Agency grants the
petition, EPA must publish the revised lists within an additional six
months.
? 90-day Notification: Section 612(e) directs EPA to require
any person who produces a chemical substitute for a class I substance
to notify the Agency not less than 90 days before new or
[[Page 4005]]
existing chemicals are introduced into interstate commerce for
significant new uses as substitutes for a class I substance. The
producer must also provide the Agency with the producer's health and
safety studies on such substitutes.
? Outreach: Section 612(b)(1) states that the Administrator
shall seek to maximize the use of federal research facilities and
resources to assist users of class I and II substances in identifying
and developing alternatives to the use of such substances in key
commercial applications.
? Clearinghouse: Section 612(b)(4) requires the Agency to set
up a public clearinghouse of alternative chemicals, product
substitutes, and alternative manufacturing processes that are available
for products and manufacturing processes which use class I and II
substances.
B. Regulatory History
On March 18, 1994, EPA issued a rule (69 FR 13044) which described
the process for administering the SNAP program and published EPA's
first acceptability lists for substitutes in the major industrial use
sectors. These sectors include: refrigeration and air-conditioning;
foam blowing; solvents cleaning; fire suppression and explosion
protection; sterilants; aerosols; adhesives, coatings and inks; and
tobacco expansion. These sectors comprise the principal industrial
sectors that historically consumed large volumes of ozone-depleting
compounds.
The Agency defines a ``substitute'' as any chemical, product
substitute, or alternative manufacturing process, whether existing or
new, that could replace a class I or class II substance. Anyone who
produces a substitute must provide the Agency with health and safety
studies on the substitute at least 90 days before introducing it into
interstate commerce for significant new use as an alternative. This
requirement applies to chemical manufacturers, but may include
importers, formulators, or end-users when they are responsible for
introducing a substitute into commerce.
To develop the lists of unacceptable and acceptable substitutes,
EPA conducts screens of health and environmental risk posed by various
substitutes for ozone-depleting compounds in each use sector. The
outcome of these risk screens can be found in the public docket, as
described above in the ADDRESSES portion of this document.
Under section 612, the Agency has considerable discretion in the
risk management decisions it can make in SNAP. The Agency has
identified four possible decision categories: acceptable; acceptable
subject to use conditions; acceptable subject to narrowed use limits;
and unacceptable. Fully acceptable substitutes, i.e., those with no
restrictions, can be used for all applications within the relevant
sector end-use. Conversely, it is illegal to replace an ODS with a
substitute listed by SNAP as unacceptable.
After reviewing a substitute, the Agency may make a determination
that a substitute is acceptable only if certain conditions of use are
met to minimize risk to human health and the environment. Such
substitutes are described as ``acceptable subject to use conditions.''
Use of such substitutes without meeting associated use conditions
renders these substitutes unacceptable and subjects the user to
enforcement for violation of section 612 of the Clean Air Act.
Even though the Agency can restrict the use of a substitute based
on the potential for adverse effects, it may be necessary to permit a
narrowed range of use within a sector end-use because of lack of
alternatives for specialized applications. Users intending to adopt a
substitute acceptable with narrowed use limits must ascertain that
other acceptable alternatives are not technically feasible. Companies
must document the results of their evaluation, and retain the results
on file for purposes of demonstrating compliance. This documentation
shall include descriptions of substitutes examined and rejected,
processes or products in which the substitute is needed, reason for
rejection of other alternatives, e.g., performance, technical or safety
standards, and the anticipated date other substitutes will be available
and projected time for switching to other available substitutes. Use of
such substitutes in applications and end-uses which are not specified
as acceptable in the narrowed use limit renders these substitutes
unacceptable.
EPA does not believe that notice and comment rulemaking procedures
are required to list alternatives as acceptable with no restrictions.
Such listings do not impose any sanction, nor do they remove any prior
license to use a substitute. Consequently, EPA adds substitutes to the
list of acceptable alternatives without first requesting comment on new
listings. Updates to the acceptable lists are published as separate
Notices of Acceptability in the Federal Register.
For more information on the Agency's process for administering the
SNAP program or criteria for evaluation of substitutes, refer to the
SNAP rule published in the Federal Register on March 18, 1994 (59 FR
13044), and see also the Code of Federal Regulations at 40 CFR part 82,
subpart G. A complete chronology of SNAP decisions and the appropriate
Federal Register citations may be found at EPA's Ozone Depletion Web
site at http://www.epa.gov/ozone/snap/chron.html. For a complete
listing of the Agency's decisions on acceptable and unacceptable
substitutes, go to http://www.epa.gov/ozone/snap/lists/index.html.
II. Listing of Substitutes
In this final rule, EPA is issuing its decision on the
acceptability, subject to narrowed use limits or use conditions, of the
following substitutes in the fire suppression and explosion protection
sector: HFC227-BC, C6-perfluoroketone, and H Galden
hydrofluoropolyethers (HFPEs). As described in the March 8, 1994 rule
for the SNAP program (59 FR 13044), EPA believes that notice-and-
comment rulemaking is required to place any alternative on the list of
prohibited substitutes, to list a substitute as acceptable only under
certain use conditions or narrowed use limits, or to remove an
alternative from either the list of prohibited or acceptable
substitutes.
The section below presents a detailed discussion of the fire
suppression and explosion protection substitute listing determinations
that are finalized in today's Final Rule. Tables summarizing these
listing decisions are at the end of this document. The comments
contained in the tables provide additional information on substitutes
determined to be unacceptable, acceptable subject to narrowed use
limits, or acceptable subject to use conditions. The comments contained
in the appendix are not a binding part of the regulatory decision and
are, therefore, not mandatory for use of a substitute. Nor should such
comments be considered comprehensive with respect to other legal
obligations pertaining to the use of the substitute. However, EPA
encourages users of substitutes to act consistent with all such
comments in their use of these substitutes especially if any practices
have not already been identified in existing industry standards such as
fire and building codes, or occupational exposure guidelines.
A. Listing Decisions: Fire Suppression and Explosion Protection--Total
Flooding Agents
1. Acceptable Subject to Use Conditions
a. HFC227-BC
HFC227-BC is acceptable, subject to use conditions, as a halon 1301
[[Page 4006]]
substitute for total flooding uses. HFC227-BC, which contains a
combination of HFC-227ea and sodium bicarbonate, is designed for total
flooding use in military combat vehicle crew and engine compartments
and for industrial fire and explosion suppression systems in occupied
and unoccupied areas. HFC-227ea, the main ingredient in HFC227-BC, is a
halocarbon fire extinguishing agent that has previously been approved
as a total flooding and streaming agent under EPA's SNAP program. It
has no ozone-depletion potential and has a global warming potential
(GWP) of 3800 compared to CO2 on a 100-year time horizon.
HFC-227ea is non-flammable. Its No Observed Adverse Effect Level
(NOAEL) is 9.0% and the Lowest Observed Adverse Effect Level (LOAEL) is
10.5%. The calculated design concentration of HFC-227ea is 7.0% which
provides a sufficient margin of safety for use in normally occupied
areas in accordance with the safety guidelines in the latest edition of
the National Fire Protection Association (NFPA) 2001 Standard for Clean
Agent Fire Extinguishing Systems (see discussion below).
EPA is providing specific use conditions designed to protect
military crew members and workplace personnel who may be present in
areas where HFC227-BC is discharged. HFC227-BC is approved for use in
military combat and vehicle crew and engine compartments and industrial
fire or explosion suppression systems for occupied and unoccupied
areas. Extinguisher bottles should be clearly labeled with the
potential hazards associated with the use of HFC-227ea and sodium
bicarbonate, as well as handling procedures to reduce risk resulting
from these hazards. Sodium bicarbonate, while low in toxicity, also has
the ability to affect blood pH level; therefore, its release in all
settings should be targeted so that increased blood pH level would not
adversely affect those exposed.
The addition of sodium bicarbonate in the mixture is to minimize
the formation of toxic hydrofluoric acid (HF) formed by the
decomposition of HFC-227ea during a fire. Sample calculations and
assumptions for respirable and released sodium bicarbonate for varied
enclosure sizes are included in the risk screen conducted for this
substitute and available in public Docket A-2002-08 for this rule.
EPA is also providing additional comments regarding use of HFC227-
BC. Use of HFC-227ea, the primary ingredient in HFC227-BC, should be in
accordance with the safety guidelines in the latest edition of the NFPA
2001 Standard for Clean Agent Fire Extinguishing Systems. Use of
HFC227-BC should conform with relevant Occupational Safety and Health
Administration (OSHA) requirements, including 29 CFR part 1910, subpart
L, sections 1910.160 and 1910.162. Per OSHA requirements, protective
gear (self-contained breathing apparatus) should be available in the
event personnel should reenter the area. Discharge testing should be
strictly limited to that which is essential to meet safety or
performance requirements. The agent should be recovered from the fire
protection system in conjunction with testing or servicing, and
recycled for later use or destroyed.
On January 29, 2002, EPA published a Direct Final Rule (67 FR 4185)
to replace the use conditions imposed under SNAP for halocarbon and
inert gas agents used in the fire suppression and explosion protection
industry with safety standards that have been established by the
National Fire Protection Association (NFPA). NFPA is an independent,
voluntary membership, non-profit international organization that is
dedicated to reducing the burden of fire on the quality of life by
advocating scientifically-based consensus codes and standards,
research, and education for fire and related safety issues. NFPA codes
and standards are used by the fire protection community throughout the
United States and the world.
Based on the above rule, the revised SNAP listings for halocarbon
alternatives, such as HFC-227ea, include the following comment, ``Use
of this agent should be in accordance with the safety guidelines in the
latest edition of the NFPA 2001 Standard for Clean Agent Fire
Extinguishing Systems.'' In the edition of NFPA 2001 that was published
in March 2000, safety guidelines for halocarbon and inert gas agents
are found in section 1.6, entitled ``Safety.''
EPA's precautionary requirements are consistent with worker safety
conditions required by OSHA and the NFPA 2001 Standard, as mentioned
above. Individuals must adhere to OSHA regulations in all commercial
applications. EPA has no intention of duplicating or displacing OSHA
coverage related to the use of personal protective equipment (e.g.,
respiratory protection), fire protection, hazard communication, worker
training or any other occupational safety and health standard. As
stated in the preamble to the original SNAP rule at 59 FR 13099, ``EPA
has no intention to assume responsibility for regulating workplace
safety especially with respect to fire protection, nor does the Agency
intend SNAP regulations to bar OSHA from regulating under its Pub. L.
91-596 authority.''
HFC227-BC reduces risk to the public compared to the ODS it
replaces because it has no ODP. HFC227-BC also has a lower global
warming impact and produces less toxic, caustic HF than HFC-227ea
alone, because less of the halocarbon agent is needed when sodium
bicarbonate is also being used. Other substitutes already listed as
acceptable for total flooding have a higher global warming impact and
comparable toxicity. Thus, we find that HFC227-BC is acceptable,
subject to use conditions, because it reduces overall risk to public
health and the environment in the end use listed.
B. Listing Decisions: Fire Suppression and Explosion Protection--
Streaming Agents
1. Acceptable Subject to Narrowed Use Limits
a. C6-perfluoroketone
C6-perfluoroketone is acceptable, subject to narrowed use limits,
as a halon 1211 substitute for streaming agent uses. The narrowed use
limits require that C6-perfluoroketone be used only in nonresidential
applications. C6-perfluoroketone is comprised of a perfluoroalkyl
ketone (1,1,1,2,2,4,5,5,5-nonafluoro-4-(trifluoromethyl)-3-pentanone).
C6-perfluoroketone has no ozone-depletion potential, a global warming
potential of 6-100 compared to CO2 on a 100-year time
horizon, and an atmospheric lifetime of less than one year. It is
marketed under the trade name Novec-1230. The NFPA 2001 standard refers
to C6-perfluoroketone as FK-5-1-12myy2. In studies on C6-
perfluoroketone, the NOAEL is 10% and the LOAEL is £10%.
EPA has reviewed the potential environmental impacts of this
substitute and has concluded that, by comparison to halon 1211, C6-
perfluoroketone significantly reduces overall risk to the environment.
With no ozone-depletion potential, a global warming potential value of
less than 1, and an atmospheric lifetime of less than three days, C6-
perfluoroketone provides an improvement over use of
hydrochlorofluorocarbons (HCFCs) and hydrofluorocarbons (HFCs) in fire
protection. EPA's review of environmental and human health impacts of
this blend is contained in the public docket for this rulemaking.
[[Page 4007]]
EPA is providing additional comments regarding use of C6-
perfluoroketone for streaming agent uses. Appropriate protective
measures should be taken and proper training administered for the
manufacture, clean-up and disposal of this product. The acceptable
exposure limit (AEL) is set at a level believed to protect workers who
are regularly exposed, such as in the manufacturing or filling
processes, from chronic adverse effects; the estimated AEL for C6-
perfluoroketone is 100 ppm as an 8-hour time-weighted average. EPA
recommends the following for establishments filling canisters to be
used in streaming applications: adequate ventilation should be in
place; all spills should be cleaned up immediately in accordance with
good industrial hygiene practices; and training for safe handling
procedures should be provided to all employees that would be likely to
handle the containers of the agent or extinguishing units filled with
the agent. We find that C6-perfluoroketone is acceptable subject to
narrowed use limits (for use only in non-residential areas) because it
reduces overall risk to public health and the environment in the end
use and application requested by the submitter and listed above.
b. H Galden Hydrofluoropolyethers
H Galden Hydrofluoropolyethers (HFPEs) is acceptable, subject to
narrowed use limits, as a halon 1211 substitute for streaming agent
uses. The narrowed use limits require that HFPEs be used only in
nonresidential applications. This substance is a mixture of fractions
of hydrofluoropolyethers of similar composition. H Galden HFPEs have an
ozone depletion potential of zero. They have an atmospheric lifetime
from 12 to 25 years. H Galden HFPEs have a global warming potential
(GWP) that varies for the particular fraction, ranging from 2790 to
6230 for the fractions having the highest GWP. Despite the relatively
high GWP values, use of H Galden HFPEs are anticipated to have a
smaller impact on global warming than the use of HFCs. H Galden HFPEs
are non-flammable. In studies on H Galden HFPEs, the NOAEL was 3.5% and
a LOAEL was not identified. H Galden HFPEs are expected to be blended
with other compounds (e.g., HFC-227ea, HFC-125) that have previously
been approved under SNAP.
EPA is providing additional comments regarding use of H Galden
HFPEs in streaming agent applications. The estimated AEL for H-Galden
HFPEs 1163 ppm for workplace exposure, typically during the
manufacturing and filling processes. Because the AEL is above 1000 ppm,
a level that can be achieved using generally employed good housekeeping
and industrial practices, EPA recommends that exposure levels be kept
below 1000 ppm on an 8-hour TWA basis. Further, EPA recommends that H
Galden HFPEs should not exceed its ceiling concentration of 6000 ppm at
any time. EPA recommends the following procedures should be followed to
ensure that this level is not exceeded:
--Adequate ventilation should be in place;
--All spills should be cleaned up immediately in accordance with good
industrial hygiene practices; and
--Training for safe handling procedures should be provided to all
employees that would be likely to handle the containers of H Galden
HFPEs or extinguishing units filled with the material.
H-Galden HFPEs have no ODP, relatively low atmospheric lifetimes of
from 13-25 years, and comparable impact on global warming with the
SNAP-approved HFC. H Galden HFPEs reduce risk overall compared to halon
1211, the ODS they replace. EPA's review of environmental and human
health impacts of this blend is contained in the public docket for this
rulemaking. Thus, we find that H-Galden HFPEs are acceptable subject to
narrowed use limits (for use only in non-residential applications)
because they reduce overall risk to public health and the environment
in the end use and application requested by the submitter and listed
above.
III. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is significant and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines significant regulatory action as one that is
likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB notified EPA on
October 3, 2002, that it considers this a ``non-significant regulatory
action'' within the meaning of the Executive Order and, therefore, did
not require EPA to submit this action to OMB for review.
B. Paperwork Reduction Act
EPA has determined that this final rule contains no information
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., that are not already approved by the OMB. OMB has reviewed and
approved two Information Collection Requests (ICRs) by EPA which are
described in the March 18, 1994 rulemaking (59 FR 13044, at 13121,
13146-13147) and in the October 16, 1996 rulemaking (61 FR 54030, at
54038-54039). These ICRs included five types of respondent reporting
and record-keeping activities pursuant to SNAP regulations: submission
of a SNAP petition, filing a SNAP/TSCA Addendum, notification for test
marketing activity, record-keeping for substitutes acceptable subject
to narrowed use limits, and record-keeping for small volume uses. The
OMB Control Numbers are 2060-0226 and 2060-0350.
Copies of the ICR document(s) may be obtained from Sandy Farmer, by
mail at the Office of Environmental Information, Collection Strategies
Division; U.S. Environmental Protection Agency (2822); 1200
Pennsylvania Ave., NW., Washington, DC 20004, by E-mail at
farmer.sandy@epa.gov, or by calling (202) 566-1676. A copy may also be
downloaded off the Internet at http://www.epa.gov/icr. Include the ICR
and/or OMB number in any correspondence.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of
[[Page 4008]]
information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statutes unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant economic impact
on a substantial number of small entities. For purposes of assessing
the impact of today's rule on small entities, small entities are
defined as (1) A small business that produces or uses fire suppressants
as total flooding and/or streaming agents with 500 or fewer employees
or total annual receipts of $5 million or less; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
Use of halon 1211 as a streaming agent in portable extinguishers
has historically been in industrial and commercial applications with
limited residential uses. Residential users typically use lower cost
alternatives such as dry chemical and carbon dioxide hand-held
extinguishers. In industrial and commercial applications, the newer
chemical agents compete for specialized segments of the halon 1211
market where lower cost alternatives such as dry powder and carbon
dioxide extinguishers may not be an appropriate option and where
factors such as cleanliness and efficacy of the agent are important.
With respect to EPA's decision on H Galden HFPEs, EPA is finding it
acceptable for all uses requested by the manufacturer. Moreover, the
manufacturer of the new fire suppressant, H Galden HFPEs, has not yet
sold it, so today's action does not affect, in any way, current usage.
The manufacturer of the new fire suppressant, C6-perfluoroketone, is
selling it in the non-residential market, so today's action does not
affect, in any way, current usage. Thus, EPA is providing additional
options for any entity, including small entities, to replace halon 1211
in streaming applications.
Use of halon 1301 total flooding systems have historically been in
the protection of essential electronics, civil aviation, military
mobile weapon systems, oil and gas and other process industries, and
merchant shipping with smaller segments of use including libraries,
museums, and laboratories. The majority of halon 1301 system owners
continue to maintain and refurbish existing systems since halon 1301
supplies continue to be available in the U.S. Owners of new facilities
make up the market for the new alternative agent systems and may also
consider employing other available fire protection options including
new, improved technology for early warning and smoke detection. The
primary party intending to use HF227-BC as a total flooding agent is
the U.S. Army, which is not a small entity. The Army has not yet used
this fire suppressant, so the regulatory restrictions imposed in
today's rule will not affect current use. Thus, EPA is providing more
options to any entity, including small entities, to use these
substitutes.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. By
introducing new substitutes, today's rule gives additional flexibility
to small entities that are concerned with fire suppression. EPA also
has worked closely together with the National Fire Protection
Association, which conducts regular outreach with, and involves small
state, local, and tribal governments in developing and implementing
relevant fire protection standards and codes.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector.
Under section 202 of the UMRA, EPA generally must prepare a written
statement, including a cost-benefit analysis, for proposed and final
rules with ``Federal mandates'' that may result in expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Section 204 of the UMRA requires the
Agency to develop a process to allow elected state, local, and tribal
government officials to provide input in the development of any
proposal containing a significant Federal intergovernmental mandate.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. Because this rule imposes no
enforceable duty on any State, local or tribal government it is not
subject to the requirements of sections 202 and 205 of the UMRA. EPA
has also determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments;
therefore, EPA is not required to develop a plan with regard to small
governments under section 203. Finally, because this rule does not
contain a significant intergovernmental mandate, the Agency is not
required to develop a process to obtain input from elected state,
local, and tribal officials under section 204.
[[Page 4009]]
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This direct final
rule will provide additional options for fire protection subject to
safety guidelines in industry standards. These standards are typically
already required by state or local fire codes, and this rule does not
require state, local, or tribal governments to change their
regulations. Thus, Executive Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This direct final rule does not have tribal implications. It will
not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This direct final rule will provide additional options for fire
protection subject to safety guidelines in industry standards. These
standards are typically already required by state or local fire codes,
and this rule does not require tribal governments to change their
regulations. Thus, Executive Order 13175 does not apply to this rule.
G. Applicability of Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. The acceptability listings in this
final rule primarily apply to the workplace, and thus, do not put
children at risk disproportionately. This rule is not subject to
Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866 and because the Agency does not have
reason to believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children.
H. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The rule allows
wider use of substitutes, providing greater flexibility for industry.
Further, we have concluded that this rule is not likely to have any
adverse energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This rulemaking involves technical standards. EPA defers to
existing National Fire Protection Association (NFPA) voluntary
consensus standards and Occupational Safety and Health Administration
(OSHA) regulations that relate to the safe use of halon substitutes
reviewed under SNAP. EPA refers users to the NFPA 2001 Standard on
Clean Agent Fire Extinguishing Systems, 2000 edition, which provides
for exposure and safe use of halocarbon and inert gas agents used to
extinguish fires. Copies of this standard may be obtained by calling
the NFPA's telephone number for ordering publications at 1-800-344-3555
and requesting order number S3-2003-00. The NFPA 2001 standard meets
the objectives of the rule by setting scientifically-based guidelines
for exposure to halocarbon and inert gas agents used to extinguish
fires. In addition, EPA has worked in consultation with OSHA to
encourage development of technical standards to be adopted by voluntary
consensus standards bodies.
J. Judicial Review
Under section 307(b)(1) of the Act, EPA finds that these
regulations are of national applicability. Accordingly, judicial review
of the 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 the action in the Federal
Register. Under section 307(b)(2), the requirements of this rule may
not be challenged later in the judicial proceedings brought to enforce
those requirements.
K. Submittal to Congress and General Accounting Office
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the
[[Page 4010]]
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on March 28, 2003.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.
Dated: January 17, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, 40 CFR 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.
Subpart G--Significant New Alternatives Policy Program
2. Subpart G of part 82 is amended by adding Appendix L to read as
follows:
Appendix L to Subpart G of Part 82--Substitutes Listed in the January
27, 2003, Final Rule, Effective March 28, 2003.
Fire Suppression and Explosion Protection Sector--Total Flooding Substitutes--Acceptable Subject to Use
Conditions
----------------------------------------------------------------------------------------------------------------
End-use Substitute Decision Conditions Comments
----------------------------------------------------------------------------------------------------------------
Total flooding............. HFC227-BC Acceptable subject Sodium bicarbonate Use of the agent,
to use conditions. release in all HFC-227ea, should
settings should be be in accordance
targeted so that with the safety
increased pH level guidelines in the
would not latest edition of
adversely affect the NFPA 2001
exposed Standard for Clean
individuals. Users Agent Fire
should provide Extinguishing
special training Systems.
to individuals See additional
required to be in comments 1, 2, 3,
environments 4, 5.
protected by
HFC227-BC
extinguishing
systems.
Each HFC227-BC
extinguisher
should be clearly
labelled with the
potential hazards
from use and safe
handling
procedures..
----------------------------------------------------------------------------------------------------------------
Additional comments''
1--Should conform with relevant OSHA requirements, including 29 CFR part 1910, subpart L, sections 1910.160 and
1910.162.
2--Per OSHA requirements, protective gear (SCBA) should be available in the event personnel should reenter the
area.
3--Discharge testing should be strictly limited to that which is essential to meet safety or performance
requirements.
4--The agent should be recovered from the fire protection system in conjunction with testing or servicing, and
recycled for later use or destroyed.
5--EPA has no intention of duplicating or displacing OSHA coverage related to the use of personal protective
equipment (e.g., respiratory protection), fire protection, hazard communication, worker training or any other
occupational safety and health standard with respect to halon substitutes.
Fire Suppression and Explosion Protection Sector--Streaming Agents--Acceptable Subject to Narrowed Use Limits
----------------------------------------------------------------------------------------------------------------
End-use Substitute Decision Conditions Comments
----------------------------------------------------------------------------------------------------------------
Streaming................. C6-perfluoroketone Acceptable subject For use only in For operations that
(FK-5-1-12MYY2). to narrowed use nonresidential fill canisters to be
limits. areas. used in streaming
applications, EPA
recommends the
following:
--Adequate ventilation
should be in place;
--All spills should be
cleaned up immediately
in accordance with
good industrial
hygiene practices; and
--Training for safe
handling procedures
should be provided to
all employees that
would be likely to
handle containers of
the agent or
extinguishing units
filled with the agent.
See additional comments
1, 2, 3, 4.
[[Page 4011]]
Streaming................. H Galden HFPEs..... Acceptable subject For use only in For operations that
to narrowed use nonresidential fill canisters to be
limits. areas. used in streaming
applications, EPA
recommends the
following:
--Adequate ventialtion
should be in place;
--All spills should be
cleaned up immediately
in accordance with
good industrial
hygiene practices; and
--Training for safe
handling procedures
should be provided to
all employees that
would be likely to
handle containers of
the agent or
extinguishing units
filled with the agent.
See additional comments
1, 2, 3, 4.
----------------------------------------------------------------------------------------------------------------
Additional comments.
1--Discharge testing should be strictly limited to that which is essential to meet safety or performance
requirements.
2--The agent should be recovered from the fire protection system in conjunction with testing or servicing, and
recycled for later use or destroyed.
3--EPA has no intention of duplicating or displacing OSHA coverage related to the use of personal protective
equipment (e.g., respiratory protection), fire protection, hazard communication, worker training or any other
occupational safety and health standard with respect to halon substitutes.
4--As with other streaming agents, EPA recommends that potential risks of combustion by-products be labelled on
the extinguisher (see UL 2129)
[FR Doc. 03-1623 Filed 1-24-03; 8:45 am]
BILLING CODE 6560-50-P
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