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Protection of Stratospheric Ozone: Removal of Restrictions on Certain Fire Suppression Substitutes for Ozone-Depleting Substances; and Listing of Substitutes
Related Material
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 29, 2002 (Volume 67, Number 19)]
[Proposed Rules]
[Page 4222-4225]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja02-26]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7130-6]
RIN 2060-AG12
Protection of Stratospheric Ozone: Removal of Restrictions on
Certain Fire Suppression Substitutes for Ozone-Depleting Substances;
and Listing of Substitutes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
remove restrictions that were previously imposed on the use of certain
substitutes for ozone-depleting substances (ODSs) under the Significant
New Alternatives Policy (SNAP) program. Specifically, EPA is proposing
to remove restrictions on the use of certain substitutes for halon fire
suppression and explosion protection agents that are used in the total
flooding end-use. The Agency is also proposing to add a substitute,
with restrictions on its use, to the list of fire suppression and
explosion protection agents.
Elsewhere in today's Federal Register, EPA is taking these actions
as a direct final rule without prior proposal because EPA views these
as noncontroversial revisions and anticipates no adverse comments. A
detailed rationale for this action is set forth in the preamble to the
direct final rule.
If we receive no adverse comments and no requests for public
hearing in response to these actions, we will take no further activity
in relation to this rule. If EPA receives adverse comments or a request
for public hearing, we will withdraw the direct final rule and review
any comments in accordance with this proposal. If a public hearing is
requested, EPA will provide notice in the Federal Register as to the
location, date, and time. Any parties interested in commenting on this
action should do so at this time.
DATES: Comments must be received in writing by February 28, 2002.
ADDRESSES: Public comments and data specific to this action should be
sent to Docket A-91-42, U.S. Environmental Protection Agency, OAR
Docket and Information Center, 401 M Street, SW., Room M-1500, Mail
Code 6102, Washington, DC 20460. The docket may be inspected between 8
a.m. and 5:30 p.m. on weekdays. Telephone (202) 260-7548; fax (202)
260-4400. As provided in 40 CFR part 2, a reasonable fee may be charged
for photocopying. To expedite review, a second copy of the comments
should be sent to Margaret Sheppard 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: Margaret Sheppard at (202) 564-9163 or
fax (202) 565-2155, U.S. Environmental Protection Agency, Stratospheric
Protection Division, Mail Code 6205J, Washington, DC 20460. Overnight
or courier deliveries should be sent to the office location at 4th
floor, 501 3rd Street, NW., Washington, DC, 20001. You also may contact
the Stratospheric Protection Hotline at (800) 296-1996 or EPA's Ozone
Depletion World Wide Web site at ``http://www.epa.gov/ozone/
snap/index.html''.
SUPPLEMENTARY INFORMATION: See additional information, pertaining to
this action, provided in the Direct Final action of the same title
located in today's Federal Register.
I. EPA Proposal
EPA would remove restrictions that were imposed on the use of
certain substitutes for ODSs under the SNAP program in the fire
suppression and explosion protection industry sector. The regulations
implementing the SNAP program are codified at 40 CFR part 82, subpart
G. The appendices to subpart G list substitutes for ODSs that are
unacceptable or that have restrictions imposed on their use. The
revisions would modify the appendices to subpart G.
The direct final rule will be effective on April 1, 2002 without
further notice unless we receive adverse comment (or a request for a
public hearing) by February 28, 2002. If EPA receives adverse comment,
we will publish a timely withdrawal in the Federal Register informing
the public that all or part of this rule will not take effect. EPA will
address all public comments in a subsequent final rule based on this
proposed rule. We will not institute a second public comment period on
this action. Any parties interested in commenting must do so at this
time.
You may claim that information in your comments is confidential
business information, as allowed by 40 CFR part 2. If you submit
comments and include information that you claim as confidential
business information, we request that you submit them directly to
Margaret Sheppard in two versions: one clearly marked ``Public'' to be
filed in the public docket, and the other marked ``Confidential'' to be
reviewed by authorized government personnel only.
II. Administrative Requirements
A. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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
[[Page 4223]]
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.
B. 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
that it considers this a ``significant regulatory action'' within the
meaning of the Executive Order and EPA submitted this action to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.
C. Paperwork Reduction Act
EPA has determined that this proposed rule contains no information
requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., that are not already approved by the Office of Management and
Budget (OMB). OMB has reviewed and approved two Information Collection
Requests (ICRs) by EPA which are described in the March 18, 1994
rulemaking (59 FR 13044, at 13121, 13146-13147) and in the October 16,
1996 rulemaking (61 FR 54030, at 54038-54039). These ICRs included five
types of respondent reporting and 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.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
D. 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 proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This proposed rule will remove regulatory restrictions on the use of
certain fire suppressants and replace them with a recommendation to use
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.
E. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this proposed rule. EPA has
also determined that this rule will not have a significant economic
impact on a substantial number of small entities. For purposes of
assessing the impact of today's rule on small entities, small entities
are defined as (1) a small business that produces or uses fire
suppressants as total flooding agents with 500 or fewer employees or
total annual receipts of $5 million or less; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Primarily,
the rule removes regulatory restrictions on the use of most fire-
suppressants used as total flooding agents and, instead, defers to the
voluntary consensus standards set by the National Fire Protection
Association. Thus, users of these substitutes are being relieved of
regulatory constraints. For this action, EPA is also changing the
listing of a substitute from acceptable subject to use
[[Page 4224]]
conditions to unacceptable. This agent, HBFC-22B1, was phased out of
production more than five years ago, except for a few essential uses,
because of its high ozone depletion potential. Later, the manufacturer
withdrew it from the market because of its toxicity. Because this agent
is generally unavailable and because of the potential liability
associated with its toxic effects, EPA believes it is extremely
unlikely that anyone is currently using this agent. We expect that
listing this agent as an unacceptable substitute will have no
significant impact on a substantial number of small entities. If anyone
has information that small businesses are still using HBFC-22B1 and
that there are impacts on those businesses that EPA should consider in
making its decision, they should submit that information to EPA. With
respect to EPA's decision on Halotron II, EPA is finding it acceptable
for all uses requested by the manufacturer. Moreover, the manufacturer
of the new fire suppressant, Halotron II, has not yet sold it, so
today's action does not affect, in any way, current usage. For
Envirogel, today's action removes the use conditions and narrowed use
limit on Envirogel with one additive, while maintaining the existing
narrowed use limit on Envirogel used with all other additives. Thus,
EPA is removing several regulatory constraints on the current ability
of any entity, including small entities, to use this substitute. In
addition, today's rule prevents potential conflicts between EPA
regulations and existing state, local and tribal fire code requirements
that incorporate NFPA standards by referring to standards of the NFPA.
Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. By
introducing new substitutes and removing regulatory restrictions on a
number of acceptable 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.
F. 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 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. The halocarbon and inert gas fire
suppressants in this proposed rule are used primarily in commercial
areas and the workplace. These are areas where we expect adults are
more likely to be present than children, and thus, the agents do not
put children at risk disproportionately. The Agency finds a fetal
toxin, HCFC-22B1, unacceptable in today's action. However, because this
agent is generally unavailable and because of the potential liability
associated with its toxic effects, EPA believes it is extremely
unlikely that anyone is currently using this agent. Therefore, our
action on this chemical is not likely to change the risk to children.
If there were any change, it would add further protection for children.
The public is invited to submit or identify peer-reviewed studies and
data, of which the Agency may not be aware, that assessed results of
early life exposure to the halocarbon and inert gas agents addressed in
today's proposed rule.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 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 proposes to use
the NFPA 2001 Standard on Clean Agent Fire Extinguishing Systems, 2000
edition, a voluntary consensus standard developed by the National Fire
Protection Association (NFPA). You can obtain copies of this standard
by calling the NFPA's order telephone number 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 extensively in consultation with OSHA to
encourage development of technical standards to be adopted by voluntary
consensus standards bodies.
H. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposed rule will remove
regulatory restrictions on the use of certain fire suppressants and
replace them with a recommendation to use 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.
I. Executive Order 13211 (Energy Effects)
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply,
[[Page 4225]]
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. Primarily, the proposed rule would
remove regulatory restrictions on the use of most fire-suppressants
used as total flooding agents and, instead, defers to a voluntary
consensus standard. Thus, users of these substitutes are being relieved
of regulatory constraints. In addition, the rule allows wider use of
substitutes, providing greater flexibility for industry. For the one
substitute not acceptable, EPA believes it is unlikely that anyone is
currently using this agent because this agent is generally unavailable
and because of the potential liability associated with its toxic
effects. Further, we have concluded that this rule is not likely to
have any adverse energy effects.
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Dated: January 15, 2002.
Christine Todd Whitman,
Administrator.
[FR Doc. 02-1496 Filed 1-28-02; 8:45 am]
BILLING CODE 6560-50-P